IN RE: the Application of Salvatore L. Ardisi and Debbie O'Neill (2026)

In this uncontested miscellaneous proceeding in the estate of Salvatore Ardisi (decedent), Salvatore L. Ardisi (Salvatore) and Debbie O'Neill (Debbie), the son and daughter of the decedent and co-administrators of his estate, seek an order from this court: (1) modifying the letters of administration with limitations to permit them to settle and compromise the decedent's claims for conscious pain and suffering and wrongful death against Jewish Home Lifecare, Sarah Neuman Center (Lifecare) in the amount of $300,000.00 (action); (2) fixing attorneys' fees and disbursements; (3) approving payment on a lien; (4) allowing statutory commissions; (5) dispensing with the filing of a bond; (6) distributing the net proceeds of settlement; (7) settling their account; and (8) granting related relief.

It is alleged that on March 19, 2022, the decedent fell on Lifecare's premises and fractured his left femur. He died on October 15, 2022, at the age of 95 of causes unrelated to his injuries, and was survived by Salvatore, Debbie and two other children.

All interested parties either waived service of process and consented to the relief requested or were served with citation and did not appear. Jurisdiction is complete.

The court finds that the settlement in the total amount of $300,000.00 is adequate in light of the facts and circumstances presented, and the application to settle the action in that amount is granted. The court also approves the proposed allocation of the proceeds of settlement entirely to the decedent's conscious pain and suffering.

As requested, the court approves commissions to Salvatore and Debbie in the amount of $13,000.00, to be divided and paid to them in equal shares (SCPA 2307).

As requested, the court approves payment in the amount of $15,753.34 to Medicare in satisfaction of its lien arising from the payment for the costs to treat the decedent's injuries.

Having reviewed the affirmation submitted by a member of petitioner's law firm (the firm) and a list of its disbursements, and applying the relevant case law governing the exercise of its discretion in this regard (see Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 213 App Div 59, 62 [4th Dept 1925], affd 241 NY 593 [1925]), the court approves and fixes the attorneys' fees of the firm in the amount of $100,000.00 and disbursements in the reduced amount of $18,832.49.¹ The court disallows the disbursement of $2,387.48 for the services of Precision Resolution, LLC (Precision) in connection with the reduction of the Medicare lien. Satisfying Medicare liens is required as part of settlement of a personal injury or wrongful death action, and negotiating them is often necessary. Such services are ordinarily performed by counsel and encompassed in a contingency fee.²

As set forth in the affirmation submitted by the Chief Operating Officer of Precision, their services resulted in Medicare voluntarily agreeing to remove from its lien the amounts Medicare paid for medical treatment that did not arise from the decedent's injuries. As set forth in that submission, reducing the lien was not complicated or complex and accordingly, the lien reduction services in this case should be included in and covered by the attorney's one-third contingency fee (see Bass v The Grove at Valhalla Rehabilitation and Nursing Center, 2021 NY Misc LEXIS 70059* [Sup Ct, Westchester County 2021]; Byrnes v St. John's Home, 73 Misc 3d 1235[A] [Sur Ct, Monroe County 2021] ["No allowance is made for 'medicare resolution fee,' again, such fee is integral to the settlement of the underlying action"]; Matter of Stafford, 2018 NY Slip Op 32293[U] [Sur Ct, Nassau County 2018] [where legal services relate to the underlying cause of action, which is the only asset of the estate, they are deemed to be part of the one third retainer]).³

The remaining prayers for relief are granted.

The co-administrators' amended account for the proceeds of this settlement is judicially settled, and the filing of a bond is dispensed with. The letters of administration with limitations are modified to the extent necessary to allow for the compromise of the action, and Salvatore and Debbie may execute and deliver general releases together with any other papers necessary to effectuate the settlement. The net proceeds of the settlement shall be paid to them as co-administrators of the decedent's estate, and, after the payment of the expenses of administration and other payments set forth in this decision, they shall distribute the net proceeds of settlement pursuant to EPTL 4-1.1 (a) (1), and as set forth in the amended petition.

Submit decree within 30 days of the date of this decision (see Uniform Rules for Sur Ct [22 NYCRR] § 207.37 [a]). In the event petitioners fail to submit a decree within 30 days

as mandated, petitioners' counsel shall answer the call of the court's calendar on October 28, 2026.

Dated: September 23, 2026

White Plains, New York

HON. BRANDON R. SALL

Westchester County Surrogate

FOOTNOTES

1.   While the amount of disbursements this court has allowed is higher than customary, the action required the depositions of several witnesses and consultation with experts.

2.   In fixing fees, the court is not bound by the retainer agreement or the consent of the parties (see Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]).

3.   The court also notes that allowing this disbursement in addition to the legal fees fixed herein, would result in an improper contingent fee in excess of 33 1/3% (see Stafford, 2018 NY Slip Op 32293[U]; Matter of Bender, 50 Misc 3d 1207[A], [Sur Ct, Broome County 2015]; 22 NYCRR § 691.20 [e]).

Brandon R. Sall, S.