Opinion
2002-06111
Argued February 7, 2003.
June 9, 2003.
In an action to recover damages for personal injuries, the plaintiff and the nonparty Decolator, Cohen DiPrisco, LLP, appeal from a judgment of the Supreme Court, Kings County (Bernstein, J.), entered December 23, 2002, which, upon a decision and an order of the same court dated May 3, 2002, and June 3, 2002, respectively, made after a hearing, awarding the nonparty Lysaght, Lysaght Kramer, P.C., a percentage share of the attorney's fees in the action, is in favor of Lysaght, Lysaght Kramer, P.C., and against Decolator, Cohen DiPrisco, LLP, in the principal sum of $9,364.23. 4 AT Decolator, Cohen DePrisco, LLP, Mineola, N.Y. (Joseph L. Decolator of counsel), for plaintiff-appellant, and David S. Gould, P.C., Port Washington, N.Y., for nonparty-appellant (one brief filed).
Lewis, Johs, Avallone, Aviles Kaufman, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), for nonparty-respondent Lysaght, Lysaght and Kramer, P.C.
Before: ANITA R. FLORIO, J.P., STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the notice of appeal from the order dated June 3, 2002, is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,
ORDERED that the appeal by the plaintiff is dismissed, as he is not aggrieved by the judgment appealed from (see CPLR 5511); and it is further,
ORDERED that the judgment is reversed insofar as appealed from by the nonparty Decolator, Cohen DiPrisco, LLP, on the law, the order is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new hearing in accordance herewith; and it is further,
ORDERED that one bill of costs is awarded to Decolator, Cohen DiPrisco, LLP.
In October 1996, this personal injury action was commenced by the law firm of Lysaght, Lysaght Kramer, P.C. (hereinafter LLK) on behalf of the plaintiff, Sean Casey. Casey retained LLK on a contingency basis. On January 26, 1998, Peter Kramer and James Lysaght, then the sole principals and shareholders of LLK, were found guilty of conspiracy under the Federal Racketeer Influenced and Corrupt Organizations Act ( 18 U.S.C. § 1962), following a criminal trial in the United States District Court. As a result of that conviction they were disbarred by operation of law (see Matter of Lysaght, 275 A.D.2d 97; Matter of Kramer, 275 A.D.2d 100).
On February 3, 1998, LLK entered into a written contract with the newly-formed law firm of Trager, Cronin Byczek, LLP (hereinafter TCB), pursuant to which TCB purchased, inter alia, all of LLK's rights and interests in this action. The plaintiff subsequently changed attorneys twice, first on March 18, 1998, to TCB, and then on May 29, 1998, to Decolator, Cohen DiPrisco, LLP (hereinafter DCD). After this action was settled for $65,000, a hearing was directed to determine the fee to be awarded to TCB. Immediately before the fee hearing, Cronin and Byczek, LLP, the successor to TCB, assigned to LLK, now headed by Linda Nunziato, all of its right, title, and interest in, inter alia, this action. It is undisputed that TCB did only a de minimis amount of work on the file while it was the plaintiff's attorney, and the remainder of the work was done by LLK and DCD.
Following the fee hearing, the Supreme Court determined that LLK was entitled to two-thirds of the attorney's fee in the case, after deducting a forwarding fee payable to the referring attorney. This appeal ensued.
We agree with DCD that the hearing court applied the incorrect standard in fixing the fee to be awarded to LLK, essentially for the work it did prior to the disbarment of its then-principals. A disbarred attorney may only be compensated on a quantum meruit basis for the legal services rendered, as well as for disbursements which the attorney may have incurred prior to the effective date of suspension or disbarment (see 22 NYCRR 691.10 [b]; see also Rosenzweig v. Gomez, 250 A.D.2d 664). "The amount of the award should be based upon evidence of the time and skill required in that case, the complexity of the matter, the attorney's experience, ability, and reputation, the client's benefit from the services, and the fee usually charged by other attorneys for similar services" (Rosenzweig v. Gomez, supra; see Potts v. Hines, 144 A.D.2d 189, 190).
In determining the fee to be awarded to LLK under the circumstances of this case, the hearing court was required to determine the fee on a quantum meruit basis — that is, based upon the number of hours worked and LLK's hourly rate without reference to the work performed by successor counsel (see Rosenzweig v. Gomez, supra; Potts v. Hines, supra; see also Neals v. Cox, 240 A.D.2d 380; Sparks v. Barry's Plumbing Heating Corp., 230 A.D.2d 606; but see Decolator, Cohen Diprisco v. Lysaght, Lysaght Kramer, P.C., 304 A.D.2d 86 [1st Dept, Feb. 18, 2003]). Instead, while citing to the factors set out in Rosenzweig v. Gomez (supra), the hearing court fixed LLK's fee as a percentage of the contingency fee awarded in the case. Accordingly the judgment must be reversed insofar as appealed from by DCD, the order vacated, and the matter remitted to the Supreme Court, Kings County, for a new hearing on the issue of the quantum meruit fee to be awarded based solely on the work performed by LLK.
The parties' remaining contentions are without merit.
FLORIO, J.P., CRANE, COZIER and RIVERA, JJ., concur.