TAMMY SCOTT ROBINSON ANTHONY SCOTT v. CITY OF NEW YORK (2025)

REPORT AND RECOMMENDATION TO THE HONORABLE VERNON S. BRODERICK

Plaintiff Tammy J. Scott Robinson, as Executor of the Estate of Anthony Scott, has filed a motion for settlement approval (Dkt. 57), pursuant to N.Y. Est. Powers & Trusts Law (EPTL) § 5-4.6, seeking judicial approval of the proposed settlement of this wrongful death action for the gross sum of $2,600,000.00, to be paid by the City of New York (City) on behalf of all defendants. $1,446,070.10 will be paid in cash, while $1,153,929.90 will be used to fund “the future periodic payment portion of this settlement.” Declaration of David A. Rankin (Rankin Decl.) (Dkt. 58) ¶¶ 22, 25.¹ Plaintiff's counsel proposes to deduct $866,666.67 (one-third of the gross settlement amount) in attorneys’ fees, plus $11,445.32 in disbursements, from the cash portion of the settlement. Id. ¶¶ 17-18. For the reasons that follow, I recommend that the contingency fee award be reduced to $858,000.00 (33% of the gross settlement amount), in accordance with 22 N.Y.C.R.R. § 603.25(e), and that as so modified the settlement be approved.

Factual Allegations

On October 14, 2021, Anthony Scott committed suicide while in the custody of the New York City Department of Correction (DOC) at the Manhattan Courthouse, awaiting transfer to Rikers Island. Compl. (Dkt. 1) ¶¶ 14, 27. Mr. Scott had autism, bipolar disorder, and a substance use disorder. Id. ¶ 46. His arraignment and classification screening form, filled out by Correction Officer Charles Rutherford, noted that Mr. Scott used heroin, and was marked “yes” for detox. Id. ¶ 29. C.O. Rutherford also wrote that Mr. Scott stated, “I want to see the doctor.” Id. ¶ 28.

After several hours in a holding pen (during which, insofar as the record discloses, Mr. Scott received no medical attention), he “removed a drawstring from his clothing to create a ligature.” Compl. ¶ 37. Plaintiff alleges that C.O. Rutherford and the other individual defendants failed to remove the drawstring from his clothing when he was detained, “despite DOC's rules requiring them to do so.” Id. ¶ 36. After Mr. Scott removed the drawstring from his clothing, he “proceeded to jam the lock of the holding pen with strips of paper without guards intervening to stop him.” Id. ¶ 38. He then “sat on the bench of the pen, in plain view, and wrapped the ligature around his neck,” tied it to “a fixture in the holding pen,” and “hung himself.” Id. ¶ 39, 41.

The holding pen in which Mr. Scott hung himself was “directly across from a guard's desk.” Compl. ¶ 30. “At that desk were C.O. Rutherford, C.O. [Jerome] Brown, and C.O. [Liza] Luna.” Id. ¶ 31. However, according to plaintiff, the C.O.s on duty “failed to act or observe Mr. Scott tie a shoelace around his neck and attempt to hang himself.” Id. ¶ 32. They also “failed to conduct their required tours,” id., and “falsified several logbook entries, stating that they had performed rounds they never did.” Id. ¶ 34. Rounds were supposed to be conducted every 15 minutes. Id. ¶¶ 17, 40. Plaintiff alleges that Mr. Scott did not receive any medical care until one hour after his suicide attempt, id. ¶¶ 16, 44, at which point it was too late. By the time Emergency Medical Services transported Mr. Scott to New York Presbyterian Hospital, he was in cardiac arrest and was placed on a ventilator. Id. ¶ 45. He never regained consciousness. Id. ¶ 6. Two days later, on October 16, 2021, Mr. Scott was pronounced “brain dead.” Id. ¶ 49. He was removed from the ventilator on October 18, 2021. Id. ¶ 50. An autopsy determined that the cause of death was “suicide (hanged self).” Verified Petition for Compromise Order (Robinson Decl.) (Dkt. 59) ¶ 7 & Ex. 3, at 1.

Procedural History

Plaintiff Robinson, who is the decedent's sister, was appointed executor of his estate by the Bronx County Surrogate's Court on December 23, 2022. See Robinson Decl. ¶ 1 & Ex. 1. She commenced this action on October 30, 2023, naming the City, C.O.s Rutherford, Brown, and Luna, C.O. Timothy Waiters, and Captain Roger Bethelmy, who was allegedly “responsible for ensuring that C.O.s ․ conducted rounds, and supervised people in custody.” Compl. ¶ 48. Suing pursuant to 42 U.S.C. § 1983, plaintiff alleged that the individual defendants were deliberately indifferent to Mr. Scott's medical needs, and that the City was liable pursuant to Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978), because it “authorized, sanctioned, and/or ratified the individual defendants’ wrongful acts; and/or failed to prevent or stop those acts; and/or allowed or encouraged those acts to continue.” Compl. ¶ 57. Plaintiff alleges that before Mr. Scott's death, five other individuals “committed suicide in DOC custody” in 2021 alone. Id. ¶ 3.

On May 28, 2024, the City and two of the individual defendants answered the Complaint. (Dkt. 31.) On October 1, 2024, the three remaining individual defendants answered and crossclaimed against the City. (Dkt. 43.) On October 21, 2024, the City answered the crossclaims. (Dkt. 49.) On January 6, 2025, the Hon. Vernon S. Broderick, United States District Judge, referred the case to me for pretrial management and settlement. (Dkt. 51.) On February 20, 2025, the parties participated in a settlement conference before me, at the conclusion of which plaintiff and defendants agreed to a settlement in the gross amount of $2.6 million. See Robinson Decl. ¶ 11 & Ex. 7.

On July 30, 2025, with the consent of defendants, plaintiff filed her motion for settlement approval. Plaintiff seeks approval of the parties’ $2.6 million settlement, which will resolve all of the estate's claims against the City (including an earlier wrongful death case brought in state court under state law). Robinson Decl. ¶ 12 & Ex. 5. The settlement now before the Court will not resolve a separate action brought against New York Presbyterian Hospital, which allegedly disconnected Mr. Scott from life support on October 18, 2021, and sent his body to the New York Medical Examiner for autopsy, despite knowing that his family was coming for a final visit that afternoon to say goodbye. Id. ¶ 13 & Ex. 6 ¶¶ 1-2.

Plaintiff requests that the $2.6 million gross settlement amount, which will be paid by the City, be allocated to the wrongful death claim. Robinson Decl. ¶ 24. The “up-front cash portion of the settlement sum” will be $1,446,070.10, payable to Beldock Levine & Hoffman LLP (BLH), plaintiff's counsel, and will be “deposited by [BLH] in an interest bearing trust account for the benefit of the distributees [of Mr. Scott's estate] to be distributed as directed herein pursuant to EPTL § 5-4.6(a)(1) and a subsequent Decree of the Bronx County Surrogate's Court.” Id. ¶ 25. From that amount, the parties propose to deduct $866,666.67 in attorneys’ fees and $11,445.32 in reimbursement for disbursements, payable to BLH “from the escrow account upon submission to this Court of proof that a Petition has been filed in the Bronx County Surrogate's Court for ․ distribution of the net recovery on behalf of the decedent's estate.” Id. ¶ 26. The remaining $1,153,929.90 will be “used by the City of New York, on behalf of itself and all Defendants, to fund the future periodic payment portion of this settlement, and the City of New York, on behalf of itself and all Defendants, shall issue a check, draft or wire transfer made payable to or wired to Pacific Life & Annuity Services, Inc. in the sum of One Million One Hundred Fifty-Three Thousand Nine Hundred Twenty-Nine and 90/100 ($1,153,929.90) Dollars and, if payment is made by check or draft, said check or draft shall be delivered to Kipnes Crowley Group LLC, one of the structured settlement brokers placing the case.” Id. ¶ 28.² At the time of his death, Mr. Scott had no assets, and left two adult children. Id. ¶¶ 14-15, 18.

On July 31, 2025, Judge Broderick referred the motion for settlement approval to me for report and recommendation. (Dkt. 60.)

Legal Standard

In an action for wrongful death, “[w]here required by statute or otherwise, the court must apportion the avails of the action and must approve the terms of any settlement.” Local Civ. R. 83.2(b)(1). “The court must approve an attorney's fee only upon application in accordance with the provisions of the New York State statutes and rules.” Local Civ. R. 83.2(b)(2). As relevant here, New York law requires that, within 60 days of a personal representative's application in a wrongful death action, the court must, “after inquiry into the merits of the action and the amount of damages proposed as a compromise,” approve or disapprove the proposed compromise, including attorney's fees and payable expenses. EPTL § 5-4.6(a).

“The court must determine whether the proposed settlement is “ ‘fair, reasonable and adequate” by comparing “the terms of the compromise with the likely rewards of litigation.’ ”” Ratcliffe v. Pradera Realty Co., 2008 WL 801498, at *1 (S.D.N.Y. Mar. 25, 2008) (quoting Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 654 (2d Cir. 1999)); accord Farris v. Avon Products, Inc. et al., 2024 WL 5119874, at *2 (S.D.N.Y. Sept. 30, 2024). “A strong presumption exists that a settlement is fair and reasonable where ‘(i) the settlement is not collusive but was reached after arm's length negotiation; (ii) the proponents have counsel experienced in similar cases; [and] (iii) there has been sufficient discovery to enable counsel to act intelligently ․’ ” Ratcliffe, 2008 WL 801498, at *1 (quoting Ross v. A.H. Robins Co., 700 F. Supp. 682, 683 (S.D.N.Y. 1988)).

Gross Settlement Amount

The parties, represented by experienced counsel, agreed to settle plaintiff's claims against the City and the individual defendants for $2.6 million after participating in a settlement conference before me on February 20, 2025. Robinson Decl. ¶ 11. During that conference I had the opportunity to examine the evidence (including video evidence showing that Mr. Scott's suicide attempt was plainly visible from the guard's desk opposite his holding pen) and probe the parties’ factual and legal contentions. On that basis I am satisfied that $2.6 gross settlement amount is fair and reasonable. I note as well that had plaintiff's claims proceeded to summary judgment or trial, both liability and damages would have been contested, making a compromise settlement sensible.

Plaintiff is also satisfied by the gross settlement amount. She affirms that the proposed settlement “is in the best interests of the distributees and the estate and those interested therein to accept the settlement so offered and that this is the largest amount that can be obtained without further litigation as against these Defendants.” Robinson Decl. ¶ 16. I therefore recommend that the $2.6 million gross settlement amount be approved as fair, reasonable, and adequate, and be allocated to plaintiff's claim for wrongful death.

Fees

Plaintiff seeks approval of attorneys’ fees in the amount of $866,666.67, to be deducted from the cash portion of the settlement payment. Robinson Decl. ¶ 21. Plaintiff affirms that she retained attorney Rankin's firm, BLH, to represent the estate in litigation, and attaches a copy of the Retainer Agreement she signed. Id. ¶ 21 & Ex. 9 (Ret. Ag.). “In view of the results BLH achieved,” plaintiff requests the Court “approve a fee for the firm according to the terms of our retainer agreement,” including “that a fee of 33 1/3% first be deducted” from the “gross settlement cost of $2,600,000.00.” Robinson Decl. ¶ 21. The Retainer Agreement itself provides that BLH “shall receive as Attorneys’ fees the greater of” (1) “a contingent fee constituting one-third of any and all amounts recovered,” or (2) “in the event that attorneys’ fees are awarded by the Court or received in settlement,” the “greater of: (a) the amount of the attorneys’ fees awarded/received, or (b) one-third of the combined total of the attorneys’ fees awarded/received and the amount recovered, taxable costs and economic benefit received by way of judgment or settlement.” Ret. Ag. ¶ 2.

In wrongful death cases such as this one, “contingency fees up to one-third of a plaintiff's recovery are common and permissible.” Kamel v. Prisco, 2025 WL 846135, at *4 (S.D.N.Y. Mar. 18, 2025) (citing Pardovani v. Crown Bldg. Maint. Co., 2023 WL 5744283, at *3 (S.D.N.Y. Sept. 6, 2023) (collecting cases)). However, “the applicable New York state regulation, 22 N.Y.C.R.R. 603.25(e)(2), caps attorney's fees at ‘[a] percentage not exceeding 33% of the sum recovered’ ” in wrongful death actions. Zapantis v. City of New York, 2025 WL 1419741, at *2 (E.D.N.Y. May 16, 2025) (quoting 22 N.Y.C.R.R. § 603.25(e)(2) and reducing proposed fee award from one-third to 33%). Moreover, this Court is required to adhere to that regulation. See Local Civ. R. 83.2(b)(2) (“In an action for wrongful death or conscious pain and suffering of the decedent ․ [t]he court must approve an attorney's fee only upon application in accordance with the provisions of the New York State statutes and rules.”). Consequently, I recommend that the attorneys’ fee award to BHL be reduced from the requested $866,666.67 (one-third of the gross settlement amount), to the regulatory maximum of $858,000.00 (33% of the gross settlement amount).

Disbursements

Plaintiff additionally requests that the Court approve “disbursements in the sum of $11,445.32” to BHL. Robinson Decl. ¶ 21.³ The disbursements appear on a list prepared by BLH. See Rankin Decl. ¶ 17 & Ex. 1 (Disb. List). The largest disbursement on the list is $6,000.00, paid to “Expert Witness PA Medical Consulting Inc.” Disb. List at 1. The remaining entries reflect smaller fees for expenses such as courier service, service of process, court filing fees, and fees to obtain medical records. Id. at 1-3. Plaintiff's counsel has also submitted invoices, receipts, or other documentation of all listed expenses (except for small postage charges and the $402 filing fee in this action, which is reflected on the docket). I find that the list of disbursements is reasonable, and consequently I recommend that the Court award plaintiff's counsel the requested $11,445.32.

Conclusion

After careful review of the parties’ submissions, I recommend, respectfully, that plaintiff's application be GRANTED and that the parties’ settlement be APPROVED as fair and reasonable, except that BLH's contingency fee be reduced from $866,666.67 to $858,000.00. After deduction of that fee, together with disbursements of $11,445.32, the net settlement payment will be $1,730,554.68. The Clerk of Court is respectfully directed to close the motion at Dkt. 58.

NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), unless they receive this Report and Recommendation solely by mail, in which case they have 17 days from the date on which it was mailed. See Fed. R. Civ. P. 6(a), 6(d). Any objections must be filed with the Clerk of the Court, addressed to the Hon. Vernon S. Broderick, and delivered to Judge Broderick in accordance with Judge Broderick's individual practices. Any request for an extension of the deadline to file objections must also be directed to Judge Broderick. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

In light of the time constraints imposed by EPTL § 5-4.6(a), the parties may, if they wish, inform Judge Broderick in writing that they waive the 14-day objection period.

FOOTNOTES

1.   The Rankin Declaration was mistakenly e-filed as a motion rather than as a declaration in support of a motion.

2.   Plaintiff did not attach an executed settlement agreement, nor otherwise apprise the Court of the details of the periodic payment portion of the proposed settlement.

3.   Pursuant to N.Y.C.R.R. § 603.25(e)(3)(ii), plaintiff elected to have BLH pay the costs and of the litigation, and agreed to compute the firm's contingency fee “on the gross sum recovered before deducting expenses and disbursements.” See Ret. Ag. ¶ 5.

BARBARA MOSES United States Magistrate Judge