Opinion
November 19, 1993
Appeal from the Supreme Court, Monroe County, Affronti, J.
Present — Pine, J.P., Lawton, Fallon, Doerr and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: This appeal involves a dispute between plaintiff's former and new attorneys over the division of a potential attorney's fee. Plaintiff's new attorney moved, on plaintiff's behalf, for an order to change the attorney of record in the underlying wrongful death action. Plaintiff's former attorney did not oppose that motion but cross-moved for an order fixing his fee at one half of any attorney's fee realized. In support of his motion, he annexed a copy of a letter dated December 22, 1992, addressed to him from his successor, which stated that, "in the event that there is any fee recovered on this case, I fully intend to honor my commitment to you of one-half of any fee realized". Supreme Court granted plaintiff's motion but denied the cross motion of plaintiff's former attorney.
It is well established that an agreement between attorneys regarding the division of a legal fee is valid and enforceable in accordance with its terms, "provided that the attorney who seeks his share of the fee contributed some work, labor or service toward the earning of the fee" (Oberman v Reilly, 66 A.D.2d 686, 687, lv dismissed 48 N.Y.2d 602, 654; see, Gore v Kressner, 157 A.D.2d 575, lv denied 76 N.Y.2d 701; Proner, P.C. v Julien Schlesinger, 134 A.D.2d 182, 184-185; Matter of Fuller, 122 A.D.2d 792).
We conclude that the parties, by virtue of their agreement, were required to divide equally the attorney's fee realized in the underlying action. We reject any assertion that the December 22, 1992 letter constituted merely an offer that was subsequently revoked. Furthermore, it is undisputed that plaintiff's former attorney performed work, labor and services in the underlying action. Therefore, we modify the order by granting the cross motion.