Rice v. Bankers Trust Co.

83 Misc. 2d 797, 374 N.Y.S.2d 87, 1975 N.Y. Misc. LEXIS 2984

• Court: New York Supreme Court
• Decided: September 3, 1975
• Status: Published

Opinion

Abraham J. Multer, J.

Motion to fix and determine the amount of the lien of Underwriters Adjusting Company.

This negligence action, after two trials and an appeal, resulted in collection by plaintiff of an award of $80,000.

Respondent claimed a workmen’s compensation law lien, which its counsel and plaintiff’s counsel agree is the sum of $9,563.82.

All parties were given the opportunity for a hearing for the submission of any proof available. The court has now been requested to determine the motion on the court record.

The allowance to plaintiff’s counsel for fees and disbursements has heretofore been fixed by this court’s order (Hirsch, J.) at a sum equal to 40% of the recovery. No question is raised as to the amount thereof.

The sole question for determination on this motion is whether or not the lienor’s share of recovery should be charged with its equitable share of the attorneys’ fees and disbursements.

The reasoning of this court at Trial Term in Matter of Koutrakos v Long Is. Coll. Hosp. (78 Misc 2d 39), even though rejected by the Appellate Division of this department (47 AD2d 500), is now made the law of this State effective June 10, 1975, prior to the making of this motion (Workmen’s Compensation Law, § 29, as amd by L 1975, ch 190).

The lien is charged with 40% thereof, to wit, the sum of $3,825.52 which shall be paid to plaintiff’s attorneys and plaintiff given credit therefor accordingly, and the balance of $5,738.30 paid to respondent Underwriters Adjusting Company in full satisfaction of its lien asserted herein.

This is the order of the court made on all the papers, pleadings, and proceedings had herein.