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DeSalvatore v. Lavigne

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 27, 1988
143 A.D.2d 513 (N.Y. App. Div. 1988)

Opinion

September 27, 1988

Appeal from the Supreme Court, Oneida County, Lynch, J.

Present — Dillon, P.J., Doerr, Green, Pine and Balio, JJ.


Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term properly permitted petitioners to withdraw as plaintiff's counsel (see, Sansiviero v Sanders, 117 A.D.2d 794, 795, lv dismissed 68 N.Y.2d 805) and properly granted petitioners a charging lien against moneys plaintiff may recover due to petitioners' efforts in the litigation (see, Judiciary Law § 475; Matter of Heinsheimer, 214 N.Y. 361, 364-365). Special Term erred, however, in prematurely setting the amount of the lien at one third of any settlement or verdict up to $18,000, which is the amount of the settlement petitioners negotiated but plaintiff refused to accept. The amount of a charging lien should be determined on a quantum meruit basis (see, Matter of Montgomery, 272 N.Y. 323, 326; Matter of Regan v Marco M. Frisone, Inc., 54 A.D.2d 1125) and subsequent to any recovery at trial or by settlement in the underlying action (see, Matter of Shaad, 59 A.D.2d 1061, 1062; Levitas v Levitas, 96 Misc.2d 929, 933).


Summaries of

DeSalvatore v. Lavigne

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 27, 1988
143 A.D.2d 513 (N.Y. App. Div. 1988)
Case details for

DeSalvatore v. Lavigne

Case Details

Full title:ALBERT DeSALVATORE, Appellant, v. RICHARD LAVIGNE, Doing Business as THE…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 27, 1988

Citations

143 A.D.2d 513 (N.Y. App. Div. 1988)

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