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Allstate Insurance Co. v. Denbleyker3/21/2001
es caused by third-party tortfeasors. Thus, defendant's attorneys are not entitled to any recovery against the lien amount based on the so-called "Kelly fee" principle.
Rather, as Allstate correctly notes, the precise issue raised herein was addressed by the First Department in Breier v Government Empls. Ins. Co. (79 AD2d 967). On similar facts, the court in Breier determined that, " hile the services of counsel led to the availability of the fund against which [the insurer] placed its lien, the contingency fee arrangement between the [insured] and her counsel could not be enforced against the lienor" (Breier v Government Empls. Ins. Co., supra, at 967). We agree with that reasoning. Here, although the services of defendant's attorneys led to the availability of the fund against which Allstate placed its lien, the contingency fee agreement was between the defendant and her attorneys and cannot be enforced against one not a party to the agreement, in this case the lienor (see, Breier v Government Empls. Ins. Co., supra).
Accordingly, we conclude that the order should be reversed, the motion of defendant's attorneys denied, and the cross motion of Allstate granted.
(Filed Mar. 21, 2001.)
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