Winston-Moore v. Miserendino, Celniker, Seegert & Estoff, P. C.

280 A.D.2d 924, 720 N.Y.S.2d 860, 2001 N.Y. App. Div. LEXIS 1277

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order unanimously reversed on the law with costs. Memorandum: Petitioners discharged respondent, a law firm retained to represent them on a personal injury claim, and instead hired the firm of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria L. L. P. (Lipsitz), their current attorneys. Petitioners instructed respondent to deal with Lipsitz regarding payment of any fees and disbursements claimed by respondent. Lipsitz was unable to reach an agreement with respondent on the issue of fees and sought an order transferring the case file to it upon payment of respondent’s outstanding disbursements, thus deferring the apportionment of fees until the conclusion of the case. We agree with petitioners and Lipsitz that Supreme Court erred in apportioning attorneys’ fees on a percentage basis between Lipsitz and respondent at the time of substitution. The percentage to be received by each firm “is properly determined at the end of litigation when the amount of the recovery and the relative contributions of the lawyers to it can be ascertained” (Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 459). (Appeal from Order of Supreme Court, Erie County, Burns, J. — Counsel Fees.) Present — Pigott, Jr., P. J., Pine, Hayes and Kehoe, JJ.