DeSalvatore v. Lavigne

143 A.D.2d 513, 533 N.Y.S.2d 41, 1988 N.Y. App. Div. LEXIS 10761

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term properly permitted petitioners to withdraw as plaintiff’s counsel (see, Sansiviero v Sanders, 117 AD2d 794, 795, lv dismissed 68 NY2d 805) and properly granted petitioners a charging lien against moneys plaintiff may recover due to petitioners’ efforts in the litigation (see, Judiciary Law § 475; Matter of Heinsheimer, 214 NY 361, 364-365). Special Term erred, however, in prematurely setting the amount of the lien at one third of any settlement or verdict up to $18,000, which is the amount of the settlement petitioners negotiated but plaintiff refused to accept. The amount of a charging lien should be determined on a quantum meruit basis (see, Matter of Montgomery, 272 NY 323, 326; Matter of Regan v Marco M. Frisone, Inc., 54 AD2d 1125) and subsequent to any recovery at trial or by settlement in the underlying action (see, Matter of Shaad, 59 AD2d 1061, 1062; Levitas v Levitas, 96 Misc 2d 929, 933). (Appeal from order of Supreme Court, Oneida County, Lynch, J. — withdrawal of counsel.) Present — Dillon, P. J., Doerr, Green, Pine and Balio, JJ.