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Warren v. Meyers3/9/2001
apportioned among outgoing and current counsel, based upon factors such as time and labor required, the difficulty of the questions involved, the skill required to handle the matter, the attorneys skills and experience, the effectiveness of counsel in bringing the matter to resolution, and other circumstances and equities involved in the particular case. Cody v. O'Neill, 116 A.D. 2d 616 (1986); Ebrahimian v. Long Island Railroad, 269 A.D.2d 488 (2000); Pearl v. Metropolitan Transportation Authority, supra.
The court has considered the testimony of counsel and reviewed their itemized summaries of work performed, disallowing time spent in connection with severing the attorney-client relationship and establishing or fixing attorneys fees. Trendi Sportswear, Inc. v. Air France, 146 Misc. 2d 111 (1989). The court finds that Jones and Gallina expended 82.15 hours (up to and including 12/10/97) and that Brewington expended 130.70 hours (up to and including 4/4/00). Accordingly, each of the respective attorneys, based on their proportionate share of time expended in the prosecution of this action, has earned the following respective percentages of the total fee generated herein:
Jones/Gallina--39%; Brewington -- 61%. However, since the Brewington firm assumed the case shortly after suit was commenced, managed the case through discovery, made such decisions and employed such strategies as were necessary to place the case in a favorable posture for resolution (ie: amendment of the bill of particulars; participation in settlement conferences and negotiation of settlement), the court finds that the Brewington firm is reasonably entitled to be compensated for the skills and expertise which they uniquely contributed in bringing the case to successful resolution. The court, sitting as the Nassau County Medical Malpractice Conference Part, heard the presentations in February and March 2000 of both law and facts regarding the alleged improper transection of the popeteal artery during knee surgery with a resulting second surgery scaning and loss of sensation. The sophistication of the argument and grasp of the facts were significantly responsible for the increases in the defendants' offers concluding with the $500,000.00 settlement. The court notes that neither plaintiff or defendant demonstrated that there was a custom and practice with respect to medical malpractice forwarding fees for firms who pay referral fees. However, even if such a practice could have been determined, it is inextricably altered by the inability to agree on a fee distribution following a discharge and cannot be considered in the presence of work actually performed. Accordingly, based upon the totality of the evidence and equitable considerations applicable to the facts of this particular case, the court finds that the Brewington firm is entitled to retain 75% of the net contingency fee and that Jones, together with his agent, Gallina, shall collectively be entitled to a fee distribution of 25%.
Based on Judiciary Law ยง474-a, the net fee earned on the $500,000 settlement, less costs and disbursements is $136,080.08. Accordingly, William Jones and the Gallina firm have earned a fee of $34,020.02; the Law Offices of Frederick Brewington has earned a fee of $102,060.06.
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