Opinion
2013-04-24
April PEARSE, plaintiff, v. Valerie DELEHANTY, etc., defendant; Parker Waichman LLP, nonparty-appellant; Grace & Grace, nonparty-respondent.
Parker Waichman LLP, Port Washington, N.Y. (Jay L. T. Breakstone of counsel), nonparty-appellant pro se. Grace & Grace, Yorktown Heights, N.Y. (Michael J. Grace of counsel), nonparty-respondent pro se.
Parker Waichman LLP, Port Washington, N.Y. (Jay L. T. Breakstone of counsel), nonparty-appellant pro se. Grace & Grace, Yorktown Heights, N.Y. (Michael J. Grace of counsel), nonparty-respondent pro se.
L. PRISCILLA HALL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, nonparty Parker Waichman LLP, the plaintiff's former counsel, appeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered September 23, 2011, which, upon granting the motion of nonparty Grace & Grace, the plaintiff's current counsel, for a determination of the allocation of legal fees to be paid to Grace & Grace and Parker Waichman LLP, awarded Grace & Grace 90% of the net contingency fee following settlement of this action and Parker Waichman LLP 10% of the net contingency fee in the action.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by increasing the award to Parker Waichman LLP to 20% of the net contingency fee in the action and reducing the award to Grace & Grace to 80% of the net contingency fee in the action; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff, while operating a motor vehicle, was injured when an automobile operated by the defendant's decedent (hereinafter the decedent) struck her vehicle. Parker Waichman LLP, the plaintiff's former counsel, commenced this action on the plaintiff's behalf, investigated other possible claims on the plaintiff's behalf, and obtained a settlement offer from the decedent's insurer in the sum of $100,000. After the offer was rejected, Grace & Grace, the plaintiff's current counsel, represented the plaintiff at a nonjury trial on the issue of damages, won a significant award, and resolved an outstanding lien in favor of the plaintiff.
The Supreme Court improvidently exercised its discretion in awarding 90% of the net contingency fee in the action to the plaintiff's current counsel ( see Hinds v. Kilgallen, 83 A.D.3d 781, 782, 920 N.Y.S.2d 675;Brown v. Governele, 29 A.D.3d 617, 618, 815 N.Y.S.2d 651;Podbielski v. KMO 361 Realty Assoc., 6 A.D.3d 597, 774 N.Y.S.2d 826). While the plaintiff's current counsel performed significant work in securing the ultimate award and in reducing the lien amount owed by the plaintiff, other work performed by the plaintiff's current counsel was duplicative of the work performed by the plaintiff's former counsel, or was of no value ( see Hinds v. Kilgallen, 83 A.D.3d at 783, 920 N.Y.S.2d 675;Reyes v. Wootos Realty, Inc., 37 A.D.3d 276, 831 N.Y.S.2d 119;cf. Kottl v. Carey, 85 A.D.3d 870, 872, 925 N.Y.S.2d 187). Considering the amount of time spent by the plaintiff's former and current counsel on this action, the nature of the work performed, and their relative contributions ( see Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458, 541 N.Y.S.2d 742, 539 N.E.2d 570;Brown v. Governele, 29 A.D.3d at 618, 815 N.Y.S.2d 651;Podbielski v. KMO 361 Realty Assocs., 6 A.D.3d 597, 774 N.Y.S.2d 826), we modify the order appealed from so as to award 20% of the net contingency fee in the action to the plaintiff's former counsel and 80% of the net contingency fee in the action to the plaintiff's current counsel.