Malayev v. Boulevard Leasing L.P.

Opinion

Malayev v Boulevard Leasing L.P.

2026 NY Slip Op 04496

July 22, 2026

Appellate Division, Second 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.

Roman Malayev, plaintiff,

v

Boulevard Leasing Limited Partnership, et al., defendants; Gordon & Gordon, P.C., nonparty-appellant, Flomenhaft Law Firm, PLLC, nonparty-respondent (and a third-party action).

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

Decided on July 22, 2026

2023-03466, (Index No. 708959/17)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Carl J. Landicino

Susan Quirk, JJ.

Gordon & Gordon, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), nonparty-appellant pro se.

Flomenhaft Law Firm, PLLC, New York, NY (Benedene Cannata of counsel), nonparty-respondent pro se.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, nonparty Gordon & Gordon P.C., the plaintiff's former counsel, appeals from an order of the Supreme Court, Queens County (Sally E. Unger, J.), dated February 10, 2023. The order, in effect, upon granting that branch of the motion of nonparty Flomenhaft Law Firm, PLLC, the plaintiff's current counsel, which was, in effect, for an allocation of attorneys' fees, after a hearing, determined that Flomenhaft Law Firm, PLLC, was entitled to the attorneys' fees recoverable in the action on $2,500,000 of the settlement amount and Gordon and Gordon, P.C., was entitled to the attorneys' fees recoverable in the action on only $1,000,000 of the settlement amount.

ORDERED that the order is affirmed, with costs.

On November 7, 2015, the plaintiff allegedly was injured when he was struck by rocks being thrown off the roof of the defendants' building. In June 2017, this action was commenced by the plaintiff through his former counsel, nonparty Gordon & Gordon, P.C. (hereinafter G & G), against the defendants to recover damages for personal injuries. After a jury returned a verdict in favor of the plaintiff and against the defendants on the issue of liability, a

settlement offer in the sum of $1,000,000 was made, which the plaintiff rejected. The trial proceeded into its damages phase, which ultimately resulted in a mistrial on the issue of damages.

Thereafter, on June 9, 2022, nonparty Flomenhaft Law Firm, PLLC (hereinafter FLF), was substituted as the plaintiff's counsel. On November 29, 2022, a settlement in the amount of $3,500,000 was reached before the damages phase of the bifurcated trial was scheduled to be retried.

FLF moved, in effect, among other things, for an allocation of attorneys' fees recoverable between it and G & G. In an order dated February 10, 2023, the Supreme Court, in effect, upon granting that branch of FLF's motion, after a hearing, determined that FLF was entitled to the attorneys' fees recoverable in the action on $2,500,000 of the settlement amount and G & G was entitled to the attorneys' fees recoverable in the action on $1,000,000 of the settlement amount. G & G appeals.

When there is a fee dispute between the current and discharged attorneys for the plaintiff in an action to which a contingent fee retainer agreement applies, "[t]he discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case" (Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658; see Lamanna v Compitiello, 213 AD3d 833, 834; Pyong Woo Ye v Pasha, 175 AD3d 737, 738). "The issue of apportionment of an attorney's fee is controlled by the circumstances and equities of each particular case, and the trial court is in the best position to assess such factors" (Lamanna v Compitiello, 213 AD3d at 834 [internal quotation marks omitted]; see Pyong Woo Ye v Pasha, 175 AD3d at 738). "An award of reasonable attorney's fees is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed" (Lamanna v Compitiello, 213 AD3d at 834 [alterations and internal quotation marks omitted]; see Pyong Woo Ye v Pasha, 175 AD3d at 738).

Here, G & G elected to receive a contingent percentage fee at the conclusion of the underlying personal injury action. Under the circumstances and considering the time and labor expended by each counsel in the action, the skill required for the various work performed, and the effectiveness of each counsel's legal work, the Supreme Court providently exercised its discretion in determining that G & G was entitled to the attorneys' fees recoverable in the action on only $1,000,000 of the settlement amount (see Lamanna v Compitiello, 213 AD3d at 834; Pyong Woo Ye v Pasha, 175 AD3d at 738; Rodriguez v Ryder Truck Rental, Inc., 171 AD3d 963, 964-965).

The parties' remaining contentions either need not be reached in light of our determination, are not properly before this Court, or are without merit.

DILLON, J.P., BRATHWAITE NELSON, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court