Ferrara v. Remlein

Appellate Division of the Supreme Court of New York

Ferrara v. Remlein

16 A.D.2d 952, 229 N.Y.S.2d 887, 1962 N.Y. App. Div. LEXIS 9132

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

DecidedJune 18, 1962

StatusPublished

This text of 16 A.D.2d 952 (Ferrara v. Remlein) 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

Ferrara v. Remlein, 16 A.D.2d 952, 229 N.Y.S.2d 887, 1962 N.Y. App. Div. LEXIS 9132 (N.Y. Ct. App. 1962).

Pincite

Opinion

In a proceeding to substitute attorneys for the plaintiff in a negligence action to recover damages for personal injuries, plaintiff appeals from so much of an order of the Supreme Court, Suffolk County, dated March 31, 1961, as ordered that the first or former attorneys shall have a lien of 20% of any recovery in the action, whether by settlement or trial. Order modified by reducing the former attorneys’ lien to 12%%. As so modified, order, insofar as appealed from, affirmed, without costs. Plaintiff’s former attorneys had a 50% contingent retainer. Prior to the making of the motion for substitution, plaintiff’s then trial counsel suggested that a reasonable lien would be 15% of the gross recovery and plaintiff’s incoming attorney suggested 10% as a compromise between the 5% lien that he thought would be reasonable and the figure of 15% suggested by plaintiff’s then trial counsel. On the motion, plaintiff requested that the compensation of the former attorneys be fixed on “ the basis of the retainer ”, whereas such attorneys requested that a lien of 20% be fixed. There was no request that their fee be fixed in a definite dollar amount based on quantum meruit, or that the fixation of the fee be deferred until the conclusion of the action. There is no claim that the action has actually been settled. Under the circumstances, it was not an improvident exercise of discretion for Special Term to fix the fee of the former attorneys on a percentage basis (Schwed v. Parks, 14 A D 2d 806; Konick v. Kerbawy, 7 A D 2d 745). However, on this record, the fixation of the fee at 20% was grossly excessive. In our opinion, 12%% would be adequate and appropriate compensation. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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In a proceeding to substitute attorneys for the plaintiff in a negligence action to recover damages for personal injuries, plaintiff appeals from so much of an order of the Supreme Court, Suffolk County, dated March 31, 1961, as ordered that the first or former attorneys shall have a lien of 20% of any recovery in the action, whether by settlement or trial. Order modified by reducing the former attorneys’ lien to 12%%. As so modified, order, insofar as appealed from, affirmed, without costs. Plaintiff’s former attorneys had a 50% contingent retainer. Prior to the making of the motion for substitution, plaintiff’s then trial counsel suggested that a reasonable lien would be 15% of the gross recovery and plaintiff’s incoming attorney suggested 10% as a compromise between the 5% lien that he thought would be reasonable and the figure of 15% suggested by plaintiff’s then trial counsel. On the motion, plaintiff requested that the compensation of the former attorneys be fixed on “ the basis of the retainer ”, whereas such attorneys requested that a lien of 20% be fixed. There was no request that their fee be fixed in a definite dollar amount based on quantum meruit, or that the fixation of the fee be deferred until the conclusion of the action. There is no claim that the action has actually been settled. Under the circumstances, it was not an improvident exercise of discretion for Special Term to fix the fee of the former attorneys on a percentage basis (Schwed v. Parks, 14 A D 2d 806; Konick v. Kerbawy, 7 A D 2d 745). However, on this record, the fixation of the fee at 20% was grossly excessive. In our opinion, 12%% would be adequate and appropriate compensation. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

16 A.D.2d 952, 229 N.Y.S.2d 887, 1962 N.Y. App. Div. LEXIS 9132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrara-v-remlein-nyappdiv-1962.