Chugerman v. Wagner

Appellate Division of the Supreme Court of New York

Chugerman v. Wagner

42 A.D.2d 772, 346 N.Y.S.2d 462, 1973 N.Y. App. Div. LEXIS 3690

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 30, 1973

StatusPublished

Cited by3 cases

This text of 42 A.D.2d 772 (Chugerman v. Wagner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chugerman v. Wagner, 42 A.D.2d 772, 346 N.Y.S.2d 462, 1973 N.Y. App. Div. LEXIS 3690 (N.Y. Ct. App. 1973).

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Opinion

In a negligence action to recover damages for personal and property injuries, plaintiffs and their present attorneys appeal from an order of the Supreme Court, Kings County, entered December 8, 1972, which, upon motion of plaintiffs’ previous attorneys, fixed the fee of the latter at 12% of " any gross amount received by settlement, in or out of Court, or by judgment, satisfaction or other form ” and granted them a lien therefor. Order reversed, on the law, with $20 costs and disbursements, and motion remitted to Special Term for further proceedings not inconsistent herewith. In our opinion, while the imposition of a lien was proper, any percentage fee at this ineompleted stage of the action is premature and should be deferred until the conclusion of the entire case (Finkelstein v. Gauldmiell Wingate Go., 29 A D 2d 943). However, since the former attorneys have the right to elect whether they will accept their compensation on the basis of a presently fixed dollar amount quantum meruit [773]*773or whether, still on the basis of quantum meruit, they will accept a contingent percentage instead (Beubenbaum v. 5. & H. Express, 6 A D 2d 47), and since an election by them is not reflected in the record before us, the matter should be remitted to Special Term for such further proceedings as will require the exercise of such an election and permit a determination not inconsistent herewith. Martuscello, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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In a negligence action to recover damages for personal and property injuries, plaintiffs and their present attorneys appeal from an order of the Supreme Court, Kings County, entered December 8, 1972, which, upon motion of plaintiffs’ previous attorneys, fixed the fee of the latter at 12% of " any gross amount received by settlement, in or out of Court, or by judgment, satisfaction or other form ” and granted them a lien therefor. Order reversed, on the law, with $20 costs and disbursements, and motion remitted to Special Term for further proceedings not inconsistent herewith. In our opinion, while the imposition of a lien was proper, any percentage fee at this ineompleted stage of the action is premature and should be deferred until the conclusion of the entire case (Finkelstein v. Gauldmiell Wingate Go., 29 A D 2d 943). However, since the former attorneys have the right to elect whether they will accept their compensation on the basis of a presently fixed dollar amount quantum meruit [773]*773or whether, still on the basis of quantum meruit, they will accept a contingent percentage instead (Beubenbaum v. 5. & H. Express, 6 A D 2d 47), and since an election by them is not reflected in the record before us, the matter should be remitted to Special Term for such further proceedings as will require the exercise of such an election and permit a determination not inconsistent herewith. Martuscello, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

42 A.D.2d 772, 346 N.Y.S.2d 462, 1973 N.Y. App. Div. LEXIS 3690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chugerman-v-wagner-nyappdiv-1973.

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