Simpson v. Mackendrick

2023 NY Slip Op 02840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 2023
• Docket: Index No. 152507/15 Appeal No. 318 Case No. 2022-05006
• Status: Published

Opinion

Simpson v Mackendrick (2023 NY Slip Op 02840)

Simpson v Mackendrick

2023 NY Slip Op 02840

Decided on May 25, 2023

Appellate Division, First Department

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

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

Decided and Entered: May 25, 2023
Before: Kapnick, J.P., Friedman, Gesmer, Mendez, Pitt-Burke, JJ.

Index No. 152507/15 Appeal No. 318 Case No. 2022-05006

[*1]Vonetta Simpson, Plaintiff-Respondent,

v

Carl Mackendrick, Defendant, Napoli Shkolnik, PLLC, Nonparty Intervenor-Appellant.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.

Scott A. Wolinetz, P.C., Melville (Scott A. Wolinetz of counsel), for respondent.

Order, New York County (Lisa S. Headley, J.), entered April 8, 2022, which, to the extent appealed from, granted nonparty intervenor Napoli Shkolnik, PLLC's motion for attorney's fees to the extent of awarding the total sum of $300 for legal services rendered on behalf of plaintiff, unanimously affirmed, with costs.

The motion court's award to Napoli, plaintiff's prior counsel, of $300 for the costs incurred in connection with its preliminary investigation of the matter, rather than 40% of the net contingency fee that Napoli sought, was a provident exercise of discretion (see Han Soo Lee v Riverhead Bay Motors, 110 AD3d 436 [1st Dept 2013]; Hinds v Kilgallen, 83 AD3d 781, 782 [2d Dept 2011]). The court providently apportioned the legal fee to reflect that current counsel, Scott A. Wolinetz, P.C., not Napoli, commenced the lawsuit that resulted in the settlement of plaintiff's workers' compensation action. Napoli only preliminarily investigated the matter over approximately three months, including obtaining medical records from only one of plaintiff's several medical providers and submitting certain no-fault and workers' compensation applications and medical authorizations. By contrast, Wolinetz demonstrated that it commenced the underlying action, conducted discovery and depositions, engaged in motion practice, and negotiated the settlement that resulted in an award to plaintiff.

We have considered Napoli's remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 25, 2023