Dickey v. Prevost

Appellate Division of the Supreme Court of New York

Dickey v. Prevost

Appellate Division of the Supreme Court of the State of New York·Decided July 24, 2026·No. 522 CA 25-01548·Published

Opinion

Dickey v Prevost - 2026 NY Slip Op 04689

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Law Reporting
Bureau Thomas J.K. Smith, State Reporter

Dickey v Prevost

2026 NY Slip Op 04689

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

THOMAS J. DICKEY, SANDRA J. DICKEY, ET AL., PLAINTIFFS,

v

JACOB ROBERT PREVOST, ET AL., DEFENDANTS. --------------------------------------------- MAXWELL MURPHY, LLC, APPELLANT; COLLINS & COLLINS ATTORNEYS, LLC, RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

522 CA 25-01548

Present: Lindley, J.P., Montour, Ogden, Nowak, And Delconte, JJ.

MAXWELL MURPHY, LLC, BUFFALO (CHRISTOPHER M. BORGATTI OF COUNSEL), FOR APPELLANT.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (T. DYLAN COLLINS OF COUNSEL), FOR RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (Frank A. Sedita, III, J.), entered March 20, 2025. The order and judgment granted Maxwell Murphy, LLC, judgment against Collins & Collins Attorneys, LLC, in the amount of $64,811.87.

[*1]

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified in the exercise of discretion by deleting the provision thereof granting Maxwell Murphy, LLC judgment against Collins & Collins Attorneys, LLC in the amount of $64,811.87 and substituting therefor a provision granting the motion of Maxwell Murphy, LLC to the extent of awarding it two-thirds of the gross contingency fee in the action less disbursements already paid, and as modified the order and judgment is affirmed without costs.

Memorandum: Thomas J. Dickey and Sandra J. Dickey (plaintiffs) retained appellant, Maxwell Murphy, LLC (Maxwell Murphy firm), to represent them in a personal injury action and, following a mediation, the Maxwell Murphy firm recommended that plaintiffs accept a settlement offer. Plaintiffs thereafter sought representation from respondent, Collins & Collins Attorneys, LLC (Collins & Collins firm), which agreed to represent plaintiffs only if plaintiffs' outgoing attorney would be paid on a quantum meruit basis. The Collins & Collins firm then advised the Maxwell Murphy firm that plaintiffs had retained it and had elected that the fee for the Maxwell Murphy firm be determined based on a quantum meruit basis. Following a second mediation, the Collins & Collins firm recommended that plaintiffs accept a new, higher settlement offer, which plaintiffs agreed to, and the personal injury action was then discontinued. Thereafter, the Maxwell Murphy firm filed a motion seeking to apportion attorneys' fees between the two firms. Following a hearing, Supreme Court apportioned the attorneys' fees by allocating one-third of the total attorneys' fees of $200,000 to the Maxwell Murphy firm and two-thirds to the Collins & Collins firm. The court then issued an order and judgment in favor of the Maxwell Murphy firm and against the Collins

& Collins firm in the amount of $64,811.87. The Maxwell Murphy firm appeals.

Preliminarily, we note that although the Collins & Collins firm initially took a cross-appeal, its cross-appeal was deemed dismissed for failure to timely perfect (see 22 NYCRR 1250.10 [a]). In addition, we granted a motion of the Maxwell Murphy firm, insofar as it sought to strike portions of the respondent's brief, to the extent that any arguments set forth in support of the cross-appeal in that brief are stricken. Consequently, any request by the Collins & Collins firm for affirmative relief on appeal is not before us (see Amber Well Drilling, LLC v Reed, 248 [*2]AD3d 1736, 1737 [4th Dept 2026]; Edgett v North Fork Bank, 72 AD3d 1635, 1635 [4th Dept 2010]).

With respect to the Maxwell Murphy firm's appeal, although generally "[i]n the case of a fee dispute between outgoing and incoming attorneys, the outgoing attorney has the right to elect either immediate compensation based on quantum meruit for the reasonable value of the services rendered, or a contingent percentage fee to be determined at the conclusion of the litigation" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370 [1st Dept 2007], lv denied 10 NY3d 702 [2008]; see McCarthy v Roberts Roofing & Siding Co., Inc., 45 AD3d 1375, 1375 [4th Dept 2007]), " '[o]nly if the client and attorney agree may the attorney receive a fee based on a percentage of the recovery' " (Kennedy v Point Dedicated Servs., LLC [appeal No. 2], 31 AD3d 1117, 1118 [4th Dept 2006], quoting Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658 [1993]). That is because "a client may discharge an attorney at any time, with or without cause . . . [and a]s against the client, a discharged attorney may [only] recover the fair and reasonable value of the services rendered . . . , determined at the time of discharge and computed on the basis of quantum meruit" (id. [internal quotation marks omitted]; see Cohen, 81 NY2d at 658). Here, inasmuch as plaintiffs elected that the Maxwell Murphy firm, as the outgoing firm, would be paid on a quantum meruit basis, the court properly applied a quantum meruit analysis to the allocation of attorneys' fees (see Kennedy, 31 AD3d at 1118).

A quantum meruit analysis for an allocation of attorneys' fees is based upon "the reasonable value of [the outgoing firm's] services" (Steinhoff v Bayoumi, 140 AD3d 1641, 1642 [4th Dept 2016]). However, "[q]uantum meruit compensation is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate" (Gould v Decolator, 131 AD3d 445, 447 [2d Dept 2015]; see Padilla v Sansivieri, 31 AD3d 64, 67 [2d Dept 2006]), and "[t]he calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations" (Renaissance Contrs. & Bldrs. Corp. v Academy Charter Sch. Middle Sch., 227 AD3d 1015, 1016 [2d Dept 2024] [internal quotation marks omitted]; see Tucker v Schwartzapfel Lawyers, P.C., 196 AD3d 527, 529 [2d Dept 2021]). Under either method, while the determination of what constitutes "reasonable attorney's fee[s] is within the sound discretion of the [court]" (Robinson & Yablon, P.C. v Sacco & Fillas, LLP, 192 AD3d 1154, 1155 [2d Dept 2021] [internal quotation marks omitted]), it must be based upon a consideration of such factors as "the percentage agreement, the nature and complexity of the litigation, the time spent, the results achieved, the attorney's experience, ability and reputation, and the fee typically charged by other attorneys in the same locality for similar services" (Kennedy

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Dickey v Prevost - 2026 NY Slip Op 04689

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Law Reporting
Bureau Thomas J.K. Smith, State Reporter

Dickey v Prevost

2026 NY Slip Op 04689

July 24, 2026

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

THOMAS J. DICKEY, SANDRA J. DICKEY, ET AL., PLAINTIFFS,

v

JACOB ROBERT PREVOST, ET AL., DEFENDANTS. --------------------------------------------- MAXWELL MURPHY, LLC, APPELLANT; COLLINS & COLLINS ATTORNEYS, LLC, RESPONDENT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

522 CA 25-01548

Present: Lindley, J.P., Montour, Ogden, Nowak, And Delconte, JJ.

MAXWELL MURPHY, LLC, BUFFALO (CHRISTOPHER M. BORGATTI OF COUNSEL), FOR APPELLANT.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (T. DYLAN COLLINS OF COUNSEL), FOR RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (Frank A. Sedita, III, J.), entered March 20, 2025. The order and judgment granted Maxwell Murphy, LLC, judgment against Collins & Collins Attorneys, LLC, in the amount of $64,811.87.

[*1]

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified in the exercise of discretion by deleting the provision thereof granting Maxwell Murphy, LLC judgment against Collins & Collins Attorneys, LLC in the amount of $64,811.87 and substituting therefor a provision granting the motion of Maxwell Murphy, LLC to the extent of awarding it two-thirds of the gross contingency fee in the action less disbursements already paid, and as modified the order and judgment is affirmed without costs.

Memorandum: Thomas J. Dickey and Sandra J. Dickey (plaintiffs) retained appellant, Maxwell Murphy, LLC (Maxwell Murphy firm), to represent them in a personal injury action and, following a mediation, the Maxwell Murphy firm recommended that plaintiffs accept a settlement offer. Plaintiffs thereafter sought representation from respondent, Collins & Collins Attorneys, LLC (Collins & Collins firm), which agreed to represent plaintiffs only if plaintiffs' outgoing attorney would be paid on a quantum meruit basis. The Collins & Collins firm then advised the Maxwell Murphy firm that plaintiffs had retained it and had elected that the fee for the Maxwell Murphy firm be determined based on a quantum meruit basis. Following a second mediation, the Collins & Collins firm recommended that plaintiffs accept a new, higher settlement offer, which plaintiffs agreed to, and the personal injury action was then discontinued. Thereafter, the Maxwell Murphy firm filed a motion seeking to apportion attorneys' fees between the two firms. Following a hearing, Supreme Court apportioned the attorneys' fees by allocating one-third of the total attorneys' fees of $200,000 to the Maxwell Murphy firm and two-thirds to the Collins & Collins firm. The court then issued an order and judgment in favor of the Maxwell Murphy firm and against the Collins

& Collins firm in the amount of $64,811.87. The Maxwell Murphy firm appeals.

Preliminarily, we note that although the Collins & Collins firm initially took a cross-appeal, its cross-appeal was deemed dismissed for failure to timely perfect (see 22 NYCRR 1250.10 [a]). In addition, we granted a motion of the Maxwell Murphy firm, insofar as it sought to strike portions of the respondent's brief, to the extent that any arguments set forth in support of the cross-appeal in that brief are stricken. Consequently, any request by the Collins & Collins firm for affirmative relief on appeal is not before us (see Amber Well Drilling, LLC v Reed, 248 [*2]AD3d 1736, 1737 [4th Dept 2026]; Edgett v North Fork Bank, 72 AD3d 1635, 1635 [4th Dept 2010]).

With respect to the Maxwell Murphy firm's appeal, although generally "[i]n the case of a fee dispute between outgoing and incoming attorneys, the outgoing attorney has the right to elect either immediate compensation based on quantum meruit for the reasonable value of the services rendered, or a contingent percentage fee to be determined at the conclusion of the litigation" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370 [1st Dept 2007], lv denied 10 NY3d 702 [2008]; see McCarthy v Roberts Roofing & Siding Co., Inc., 45 AD3d 1375, 1375 [4th Dept 2007]), " '[o]nly if the client and attorney agree may the attorney receive a fee based on a percentage of the recovery' " (Kennedy v Point Dedicated Servs., LLC [appeal No. 2], 31 AD3d 1117, 1118 [4th Dept 2006], quoting Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658 [1993]). That is because "a client may discharge an attorney at any time, with or without cause . . . [and a]s against the client, a discharged attorney may [only] recover the fair and reasonable value of the services rendered . . . , determined at the time of discharge and computed on the basis of quantum meruit" (id. [internal quotation marks omitted]; see Cohen, 81 NY2d at 658). Here, inasmuch as plaintiffs elected that the Maxwell Murphy firm, as the outgoing firm, would be paid on a quantum meruit basis, the court properly applied a quantum meruit analysis to the allocation of attorneys' fees (see Kennedy, 31 AD3d at 1118).

A quantum meruit analysis for an allocation of attorneys' fees is based upon "the reasonable value of [the outgoing firm's] services" (Steinhoff v Bayoumi, 140 AD3d 1641, 1642 [4th Dept 2016]). However, "[q]uantum meruit compensation is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate" (Gould v Decolator, 131 AD3d 445, 447 [2d Dept 2015]; see Padilla v Sansivieri, 31 AD3d 64, 67 [2d Dept 2006]), and "[t]he calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations" (Renaissance Contrs. & Bldrs. Corp. v Academy Charter Sch. Middle Sch., 227 AD3d 1015, 1016 [2d Dept 2024] [internal quotation marks omitted]; see Tucker v Schwartzapfel Lawyers, P.C., 196 AD3d 527, 529 [2d Dept 2021]). Under either method, while the determination of what constitutes "reasonable attorney's fee[s] is within the sound discretion of the [court]" (Robinson & Yablon, P.C. v Sacco & Fillas, LLP, 192 AD3d 1154, 1155 [2d Dept 2021] [internal quotation marks omitted]), it must be based upon a consideration of such factors as "the percentage agreement, the nature and complexity of the litigation, the time spent, the results achieved, the attorney's experience, ability and reputation, and the fee typically charged by other attorneys in the same locality for similar services" (Kennedy, 31 AD3d at 1119; see Robinson & Yablon, P.C., 192 AD3d at 1155).

Here, based on our review of the record, including the testimony adduced at the court-directed quantum meruit hearing, the Maxwell Murphy firm represented plaintiffs for over three years, during which time it investigated the case, obtained medical records, prepared the pleadings, conducted discovery including taking and defending depositions, and prepared for and conducted a mediation session that culminated in a significant settlement offer. The Collins & Collins firm, in turn, represented plaintiffs for approximately three months, during which time it obtained medical records, reviewed the file documents, and prepared for and conducted a second mediation session that culminated in a larger settlement offer, which plaintiffs accepted. Under all of the circumstances, and considering the requisite factors, we substitute our discretion, which we may exercise " 'even though there has been no abuse of discretion by the lower branch of the court' " (Smith v MDA Consulting Engrs., PLLC, 210 AD3d 1448, 1449 [4th Dept 2022], lv denied 39 NY3d 910 [2023], quoting Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367, 370 [1962]), and conclude that the proper apportionment of the contingency fee is two-thirds to the Maxwell Murphy firm, less the disbursements that were already paid by the Collins & Collins firm to the Maxwell Murphy firm (see Stephen v City of New York, 216 AD3d 1029, 1030-1031 [2d Dept 2023]; cf. Berkowitz v Helms Bros., Inc., 193 AD3d 671, 672 [2d Dept 2021]). We therefore modify the order and judgment accordingly.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court

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Dickey v. Prevost, (N.Y. Ct. App. 2026).

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Dickey v Prevost

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