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JOHN J. BRADBURY v. VIOLA FARBER ET AL. (02/17/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


February 17, 1969

JOHN J. BRADBURY, APPELLANT,
v.
VIOLA FARBER ET AL., DEFENDANTS. LEAHEY & JOHNSON, RESPONDENTS

Appeal by plaintiff, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated October 2, 1968, as, in granting his motion for substitution of his attorneys, and without a hearing, fixed the fee of respondents as outgoing attorneys at 10% of any recovery in the case and granted them a lien therefor and for their disbursements.

Beldock, P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.

In this personal injury negligence action, plaintiff, a former employee of the outgoing attorneys, sought to substitute attorneys. The case has not yet come to trial and there is still work to be done. After the outgoing attorneys asked for 50% of the attorneys' fee to consent to the substitution, plaintiff made the motion under review to have the fee determined on a quantum meruit basis. Plaintiff and the outgoing attorneys requested that a hearing be conducted. It is well established that either the plaintiff or his outgoing attorney may object to the fixation of a fee on a percentage formula (Brown v. Moffitt, 5 A.D.2d 1002). As this court held in Finkelstein v. Cauldwell Wingate Co. (29 A.D.2d 943): "it is unfair and premature to fix an outgoing attorney's fee on a percentage formula when there is still work to be done in the case and where no recovery figures are available (Kern v. Karnbach, 27 A.D.2d 954; * * *)." Respondents thus have the option of acceding to plaintiff's demand for a presently fixed quantum meruit fee or of seeking a percentage fee "still on the basis of quantum meruit " at the conclusion of the case (Finkelstein v. Cauldwell Wingate Co., supra).

Disposition

Order modified, on the law, by (1) striking out the third decretal paragraph thereof, which fixed the fee and granted the lien, and (2) providing in lieu thereof that a hearing shall be held at Special Term and a new determination made on the issue of the amount of the fee and lien, in accordance with the memorandum herein. As so modified, order affirmed insofar as appealed from, without costs. The findings of fact below have not been affirmed.

19690217

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