Jules v. David

210 A.D.3d 970

179 N.Y.S.3d 670

Anthony JULES, plaintiff,

v.Nashonda DAVID, et al., defendants;

Law Offices of Gerald P. Gross, P.C., nonparty-appellant,

Gregory Spektor & Associates, P.C., nonparty-respondent.

2021–03798

Index No. 524452/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 22, 2022

November 23, 2022

Law Offices of Gerald P. Gross, P.C., Cedarhurst, NY (Avraham Goldberg of counsel), nonparty-appellant pro se.

Gregory Spektor & Associates, P.C., Rosedale, NY (David L. Henderson of counsel), nonparty-respondent pro se.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, nonparty Law Offices of Gerald P. Gross, P.C., appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated April 20, 2021. The order granted the motion of nonparty Gregory Spektor & Associates, P.C., for a determination of the allocation of a net contingency fee to the extent of determining that nonparty Law Offices of Gerald P. Gross, P.C., was not entitled to any portion of the net contingency fee.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the motion of nonparty Gregory Spektor & Associates, P.C., for a determination of the allocation of a net contingency fee to the extent of determining that nonparty Law Offices of Gerald P. Gross, P.C., was not entitled to any portion of the net contingency fee, and substituting therefor a provision granting the motion to the extent of determining that nonparty Law Offices of Gerald P. Gross, P.C., is entitled to 10% of the net contingency fee; as so modified, the order is affirmed, with costs to the nonparty-appellant.

In December 2015, the plaintiff allegedly sustained injuries in a motor vehicle accident. In January 2016, the plaintiff retained nonparty Law Offices of Gerald P. Gross, P.C. (hereinafter Gross), to represent him in seeking to recover damages arising from the accident. After being retained, Gross filed a no-fault benefits application, referred the plaintiff to several doctors, scheduled and rescheduled independent medical examinations, and helped the plaintiff obtain a presettlement loan. The principal of Gross also asserted that the firm investigated the accident scene, obtained and reviewed medical records and other relevant documents, and "spen[t] a great deal ... of time" on the phone with the plaintiff "answering his many questions about his claim." The plaintiff ultimately discharged Gross. In May 2018, the plaintiff retained nonparty Gregory Spektor & Associates, P.C. (hereinafter Spektor). In December 2018, Spektor filed a summons and complaint in this action on the plaintiff's behalf. In July 2020, the plaintiff obtained a $100,000 settlement.

In August 2020, Spektor moved for a determination of the allocation of the net contingency fee obtained upon the settlement of the action. In an order dated April 20, 2021, the Supreme Court, granted the motion to the extent of determining that Gross was not entitled to any portion of the net contingency fee. Gross appeals.

"When there is a fee dispute between the current and discharged attorneys for the plaintiff in an action to which a contingent fee retainer agreement applies, [t]he discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case" ( Ficaro v. Alexander , 142 A.D.3d 1043, 1043, 37 N.Y.S.3d 611, quoting Matter of Cohen v. Grainger, Tesoriero & Bell , 81 N.Y. 2d 655, 658, 602 N.Y.S.2d 788, 622 N.E.2d 288 [internal quotation marks omitted]; see Lai Ling Cheng v. Modansky Leasing Co. , 73 N.Y. 2d 454, 458, 541 N.Y.S.2d 742, 539 N.E.2d 570 ; Robinson & Yablon, P.C. v. Sacco & Fillas, LLP , 192 A.D.3d 1154, 1155, 141 N.Y.S.3d 344 ). "The issue of apportionment of an attorney's fee is controlled by the circumstances and equities of each...