Opinion
09-21-2016
Christopher J. FICARO, et al., plaintiffs, v. C.M. ALEXANDER, also known as Christina M. Alexander, defendant; Bonita E. Zelman, nonparty-appellant; Irom Wittels Freund Berne & Serra, P.C., nonparty-respondent.
Bonita E. Zelman (Alexander J. Wulwick, New York, NY, of counsel), nonparty-appellant pro se. Sclar Adler LLP, New York, NY (Wesley Serra of counsel), for nonparty-respondent.
Bonita E. Zelman (Alexander J. Wulwick, New York, NY, of counsel), nonparty-appellant pro se.
Sclar Adler LLP, New York, NY (Wesley Serra of counsel), for nonparty-respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and FRANCESCA E. CONNOLLY, JJ.
Opinion In an action to recover damages for personal injuries, etc., nonparty Bonita E. Zelman appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), entered August 7, 2015, which, upon granting the motion of nonparty Irom Wittels Freund Berne & Serra, P.C., for an allocation of attorneys' fees, determined, after a hearing, that Irom Wittels Freund Berne & Serra, P.C., was entitled to 30% of the attorneys' fees recoverable in the action and she was entitled to only 70% of the attorneys' fees.
ORDERED that the order is affirmed, with costs.
“When there is a fee dispute between the current and discharged attorneys for the plaintiff in an action to which a contingent fee retainer agreement applies, ‘[t]he discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case’ ” (Wodecki v. Vinogradov, 125 A.D.3d 645, 646, 2 N.Y.S.3d 590, quoting Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 602 N.Y.S.2d 788, 622 N.E.2d 288 ; 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 ). Where, as here, an election was not made by the outgoing attorney at the time of discharge, there is a presumption that the attorney has chosen a proportionate share of the contingency fee (see Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d at 660, 602 N.Y.S.2d 788, 622 N.E.2d 288 ; Wodecki v. Vinogradov, 125 A.D.3d at 646, 2 N.Y.S.3d 590 ; Matter of Wingate, Russotti & Shapiro, LLP v. Friedman, Khafif & Assoc., 41 A.D.3d 367, 370, 839 N.Y.S.2d 469 ; see also Byrne v. Leblond, 25 A.D.3d 640, 642, 811 N.Y.S.2d 681 ). The award of reasonable attorneys' fees is a matter within the sound discretion of the court (see Ebrahimian v. Long Is. R.R., 269 A.D.2d 488, 489, 703 N.Y.S.2d 731 ).
Here, considering the amount of time spent by the plaintiffs' former and current attorneys 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 at 459, 541 N.Y.S.2d 742, 539 N.E.2d 570 ; Pearse v. Delehanty, 105 A.D.3d 1023, 1024, 964 N.Y.S.2d 557 ; Kottl v. Carey, 85 A.D.3d 870, 872, 925 N.Y.S.2d 187 ), the Supreme Court providently exercised its discretion in determining that the plaintiffs' former counsel was entitled to 30% of the attorneys' fees recoverable in the action (see Wodecki v. Vinogradov, 125 A.D.3d at 646, 2 N.Y.S.3d 590 ; cf. Montanez v. Jeffrey M. Brown Assoc., Inc., 131 A.D.3d 1024, 1025, 16 N.Y.S.3d 304 ).