Lai Ling Cheng v. Modansky Leasing Co.

153 A.D.2d 839, 545 N.Y.S.2d 359, 1989 N.Y. App. Div. LEXIS 11549

Opinion

In an action to recover damages for personal injuries, the plaintiffs’ successor attorneys, Sullivan & Liapakis, P.C., appeal on the ground of excessiveness, and the plaintiffs’ prior attorney, Edward Murtaugh, cross-appeals on the ground of inadequacy, from an order and judgment (one paper) of the Supreme Court, Dutchess County (Rosenblatt, J.), dated July 15, 1986, which, after a hearing, awarded Murtaugh, the attorney who represented the plaintiffs in this matter prior to the commencement of the lawsuit, the principal sum of $108,000, representing 20% of the total attorney’s fee in the underlying lawsuit, and the balance of the fee to Sullivan & Liapakis, P.C. By decision and order of this court dated February 29, 1988, the order and judgment was modified, by reducing the award to Murtaugh to the principal sum of $35,000, calculated on a strict quantum meruit basis (see, Lai Ling Cheng v Modansky Leasing Co., 137 AD2d 781). By order dated May 4, 1989, the Court of Appeals reversed the decision and order of this court and remitted the matter here for a recalculation of Murtaugh’s fee based upon a percentage of the recovery (see, Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454).

Ordered that the order and judgment is affirmed, without costs or disbursements.

The limited issue before this court upon remittitur is whether the award by the Supreme Court constituted an improvident exercise of discretion (4 NY Jur 2d, Appellate Review, § 369; Matter of Hallgarten, 130 AD2d 749). Under the facts and circumstances of this case, and in view of the quantity and quality of Murtaugh’s services prior to the commencement of the action, we conclude that the Supreme Court did not improvidently exercise its discretion in fixing Murtaugh’s fee at 20% of the recovery, or $108,000. Kunzeman, J. P., Rubin, Harwood and Balletta, JJ., concur.