FILED: ERIE COUNTY CLERK 05/10/2017 10:37 AM
`FILED: ERIE COUNTY CLERK 052017 10:37 ‘
`NYSCEF DOC. NO. 41
`NYSCEF DOC. NO. 41
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`INDEX NO. 801221/2015
`INDEX NO' 801221/2015
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`EXHIBIT O
`EXHIBIT 0
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`SIATE OF NEW YORK
`SUPREI\,1E COURT
`
`COUNTY OF ERIE
`
`g.q!L]Nq & BARNES, p.C., formerty known as
`THE BARNES FIRM, P.C. and
`CELLINO & BARNES, P.C.
`
`Plaintiffs,
`
`BROWN CHIARI LLp, formorly known as
`BROWN CHIARI, LLP ANd BRbWN, CHIARI
`CAPIZZI & FRASCOGNA LLP,
`Defendants.
`
`At a Special Term of the Suoreme
`Court, State of New york. ai the
`courthouse in Buffalo, New york on
`the x'*62y o1 4i,tl lc
`,2012
`
`DECISION ANd I]RDER
`
`INDEX NO. 2011t121
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`APPEARANCES
`
`I\,ARK R. UBA, ESe., for plaintiffs
`JAMES M. |\IUCKLEWEE, ESe., for Defendants
`
`PAPERS CONSIDERED:
`
`The AFFIRMATION OF N{ARK R. UBAL ESQ.,I with annexed
`exhibits;
`
`the AFFIDAV|T OF STEPHEN C. CIOCCA[, ESQ.], with annexed
`exhibits;
`
`the AFFIDAVTT OF PATRICK J. BROWNI, ESe.l, with annexed
`exhibitsi
`
`PLAINTIFF,S IVIEIVoRANDUI,I oF LAW IN SUPPoRT oF
`APPLICATION FoR ALLoCATIoN oF ATTORNEV iE;S;
`Plaintiff's conrputer disk:
`
`the AFFIDAVIT of James M. Mucklewee, Esq., with annexecj
`exhibits;
`
`the AFFIDAVIT of James E. Brown, Esq., with annexed exhibits;
`the AFFIDAVIT of Donald p. Chiari, Esq., with annexed exhibits;
`the IVIEMORANDUM OF LAW of Defendanri
`
`Defendant's computer disk;
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`the l4arch 26, 20i2 letter of James IVl. lr4ucktewee, Esq., with
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`FILED: ERIE COUNTY CLERK 05/10/2017 10:37 AM
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`attachment; and
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`the March 27, 2012 letter of Mark R. Uba, Esq.
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`Plaintiff, a law firm, commenced this action in January 2011 against defendant, another
`law firm, seeking a iudiciai determination of plaintifls rightful share of the attorney fee portion
`($450,000) of a settlement ($1.45 million) obtained on behalf of a persr)nai injury claimant
`named Brian Brooks (Brooks or the client). Brooks was represented by defendant at flre time of
`the May 2006 settlement of his craim but previousry had been represented by plaintiff, which the
`then 37-year-old Brooks had retained in April 2003 to represent him on his claim, which arose
`out of an automobile accident that occuned in March 2003. That retainer agreement, like the
`one subsequenfly entered into between Brooks and defendant in rate Decenrber 2003, provided
`for the standard contingency fee oI 33% percent ol any urtimate net recovery by the client.l At
`the time of ihe change in representation, it was at reast tacitry agreod between the parties that
`they would await until the resolution of the personal injury claim to determine the amounl of
`plaintiffs entitlement, if any, to a portion of the fee generated by any recovery or setflemenl.
`Although plaintiff apparentty was not immediatery apprised of the setflement by defendant,
`plaintiff got wind of it anyway and subsequenfly communicated with defendant in an
`unsuccessful effort to resolve the lee allocation dispute without litigation, some four years
`later, plaintiff brought this action. Although defendant initially took the position in the ljtigation
`that plaintiff had been discharged "for cause' and thus was entitled to no portion of the fee,
`defendant has since abandoned that posilion, and thus the sole substantive issue before the
`court is the appropriate alocation of the fee, an issue that the parties have agreed to submit to
`the Court on papers alone - indeed simultaneous submissions_
`
`lThe court notes, howevel, that one third of the crient's net recovery in the ca$e wourd
`approach $483,000, not the $450,000 now in contest.
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`Before addressing the substantive issue, however, the court is asked to decide the
`appropriateness of its considering the affidavit of patrick J. Brown, Esq., an attorney employed
`by neither pafty but retained by plaintiff to set forth certain matters thouglrt to be of possible
`"assisrance" to this court in deciding the fee aflocation issue. Defendant objects to such
`consideration on the ground that patrick Brown is a non-discrosed expe(. As the plainliff points
`our, however, its obrigation to make expert disctosure expricifly hinges on its expectation of
`carring such expert as a witness at triar (see cpLR 3101 tdr I1r {ir), which is not the situation at
`bar. rn any event, we are not tarking about a jury triar, and it is obvious to the court, at least,
`that the court must considerthe patrick Brown affidavit in order to determine whether to
`consider it' upon doing so, the court sees nothing in the affidavit of a purportedly factuar
`nature that is not competenfly presented to the court by other means. MoTeover, the court
`sees ritfle in it that purpods to be in the nature of expert regar opinion that is not arready fury
`addressed in the parties' respeclive memoranda of raw- rndeed, to the extent that the patrick
`Brown affidavit purports to set fofih such legal opinion, the court assures the parties that is well
`accustomed to sorting through Iitigants' respective regar presentations and assuming for itserf
`the rore of urtimate regar exped in a given case. Moreover, to the extent thal the object of the
`Patrick Brown affidavit is to generary inform the court concerning what transpires upon the
`intake and deveropment of a personar injury craim by a praintiff,s cou.rser, the coud notes its
`familjarity with that process after 35 years of conducting pre-trial conferences as a law clerk and
`judge and defending personar iniury craims on beharf of governmentar defendant$. The court
`thus will consider the patrick J. Brown affidavit for whatever it is worth in the utter confidence
`that nothing in it will prove preju(,icial to defendant.
`Turning to the merits of the dispute, the Court obse.es ,rat, as the outgoang law lirm
`discharged by the crient without cause, praintiff wourcr be entifled to recover on a theory of
`quantum meruit the fair and reasonable value of its services lo the client (see Lai Ling Cheng v
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`Mondansky Leasing co.,TzNyzd 4s4 , 4sT 4ig t1g1ol; Kennedy v poitlt Dedicated se,us.,
`tLC,31 AD3d 1117,1119 [4th Dept 2006]). Moreover, to the extent thatthe fee dispute is
`between the outgoing and incoming attorneys as opposed to between the outgoing attorney
`and the client, plaintiff was entifled, at its own election, to have the amounl of its fee fixed as of
`the time of the discharge in a given doflar amount computed on the basis of quantum meruit
`(see Cohenv eranger, Tesoriero & Be ,Bl Ny2d655,658 [1993]; Lai Lilg Cheng,72 Ny2d at
`458), or to take its share of lhe fee based on a contingent percentage of the uitimate set ement
`or recovery and further based on its proportionate share of aI of ihe regar work performed on
`lhe case - in other words, taking into account rhe amount oi the recovery and the relative
`contribulions of the lawy'rs to such recovery Gee Lai Ling cheng,72 Nyzd at 4sg-4s9).
`lndeed, "[t]he percentage may be fixed at rhe time of substitution but . . . is better determined at
`the conclusion of the case when such factors as the amount of time spent by each lawyer on
`the case, the work performed and the amount of recovery can be ascertained,, (id- at asg). rf
`the outgoing attorney specifies at the time of discharge that it will seek its fee at the time of
`disposition oflhe case but does not at that time erect the rneflrod of payment, it wi be
`presumed that the contingent fee/proportion of responsibirity method of carcurating the fee has
`been chosen rather than a quantum-meruit-based recovery (see cohen, 81 Ny2d at 65s-660;
`see also Lai Ling Cheng,TZ Ny2d at459-460; Jonesv Birnie Bus Se/v., tnc., 15 AD3rJg51,
`951-952 [4th Dept 2005]). rn determining the varue of the outgoing attorney,s services to the
`client, "the court shouid consider the terms of the percent6ge agreement, the nature and
`complexity of the litigation, the time spent, the resurts achieved, the attorney,s experience,
`abilily and reputation, and the fee typicaly charged by other attorneys in the same iocarity for
`$imilar services (see padira v sansivieri,3i AD3d 64 120a6); schneider, Kteinick, weitz,
`Damashek & Sltoot v City of New york,3OZ AD2d.183, 1Be_1e9 lZOOZli Rosenzweig v Gomez,
`250 AD2d 664 I19981; smith v Boscov's Dept. store, rg? AD?d g49, 950-951 [1993]: see a/so
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`Matter of rirman,2sg Ny 133 t1ggzD" 6ennedy,31 AD3d at 1119). As noted in its decision in
`a similar case (see Kennedy v point Dedicated SeNs., LLC, 15 Mjsc 3d 1146[4] -4
`120071, this
`Court is of the view, that, of the value of a particular personal injury case, one ,.iird is
`attributabl6 to the signing of the initiar retainer agreement, one thifd to the discovery and
`preparation phase ofthe litigation, and one third to the urtimate resorution of the matter by
`settlement or triar to verdict or decision. The court has noled before (rd.) and herein notes
`again that such division of the fee is not atypicar of referrar arrangements between or among
`personal iniury attorneys.
`
`At the outset, the court rejects praintiff's contention that defendant,s aIocation ot the fee
`should be downwardry adjusted because of defendant's asserted breach of the Lawyers code
`of Professionar Responsibirity. By the same token, the court rejects plaintiff,s contention that
`defendant's arrocation shourd be further reduced, or that defenclant shourd be made to pay
`costs and reasonabre altorneys fees to praintiff, based upon its conduct in the present ritigation.
`The court does agree with praintiff, however, that whatever principar sum praintiff recovers
`herein as its arlocabre share of fee shourd be reimbursed with interest at the legar rate of g%
`per year dating frorn defendant's receipt of the attorney fee portion of the setgement (see cplR
`5001 through s004i see arso Ruta & sourios LLp v Litnan & Litman, pc, 9 Misc 3d 1123[A] -6
`n5 [sup ct NY co 2005], affcl2T ADSd 236 [1st Dept 2006]). The court bases its award of
`prejudgment interest on the fact thal the instant claim is based upon a contract (see cpLR
`5001 [al) - whether one inrplied in fact by the parties, course of dearing with one another
`following the change in representation and indeed foflowing the setflement of the craim, ancj/or
`one implied in law based upon the conjoint duty ofrhe crient and the successor raw tirm to pay
`the predecessor law flrm a reasonable fee for it$ work on the file.z However, lacking any
`
`,, .. '?of c-oylse, praintiff's optio! tg recover its fee on a quantum meruit basis signifres thal
`the theory of this action is quasi-contractuat at rhe teast, miining inat int.r"rt is recoverabre
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`ififormation as to when exacUy defendant collected its fee on the unclerlying claim and should
`have paid plaintiff its share thereof (tho settlement appears to have been reached in principle by
`April 2006 and effectuated in June or July of that year), the court will order that prejudgment
`interest shall be payabte for the pefiod beginning August 1, 2006 (see CpLR 5001 {bl, tcl).
`Concerning the appropriate allocation, plaintiff seeks one hatf of the 9450,000 fee.
`Plaintiff bases that request mostly upon its claimed entiflement to a one-third share of the fee
`for bringing in the case and obtaining the client's signature on the retainer agreement. plaintiff
`further seeks an additional $75,000, or one-quarter of the two-thirds (or gg00,000) balance of
`the fee, for a total demand of 9225,000. ln its prcsentation, defendant does not suggest a
`specific dollar flgure or percentage fee allocation for plaintiff. However, defendant suggests at
`several points tllat plaintiff, having "abandoned' its claim for reinlbursen.rent, is entifled to
`
`nothing (a suggestion that the court rejects out of hand), and at other points defendant
`suggests that plaintiff is entitled to something less than a third of the counset fee. otheru,ise
`defendant, like plaintiff, attempts to persuade this court of the sheer magnitude of its own
`efforts on behalf of the client by presenting this court with materiai from its case file. Much of
`the material put in by both parties consists of the client's mBdical (and no-fault medical)
`
`records, which really speak far more about what the client's doctors did or couldn,t do for him
`
`than about what his respective lawyers did for him (such records do, however, evince the
`exislence of some issues of causation and damages that might have had to be r;tigated).
`
`otherwise, the two law firms put in materials more properly constituting or reflectjve of attomey
`work product on the personal injury claiftr file, such as EBT transcripts in the underlying and
`
`from the date of the accrual ofthe cause of action (see siegel, Ny prac, January 2012 pocket
`Part 9 411, p 31 ; see atso Tesser_v A boro Equip_ Co., 73 AD3d 1OZB, i o27-fi;s lzo Oepi
`2O1O); Ogletree, Deakins, Nash, Smoak & Stewad. p.C. v Albany Steet 1nc.,243 AD2d bii,
`879-880 [3d Dept 1997]; Freclerick v Clark, 162 ADZd SOg, S64 i3d Dept 19901; Ash&Miierv
`Freedman, 114 AD2d 823 [1st Dept 19BF]),
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`current action; letters, pleadings, and other papers generated in lhe underlying and cunenl
`litigation; lists of days worked and things accomplishecl on the underlying case; and internal
`memoranda of counsel or notations to the underlying case file.
`
`In general terms, it appears that, between Aprir and December 2003, plaintiff took in the
`case; conducled an initial and numerous follow-up conferences or telephone conversations witlr
`the client; obtained and evaluated the accident and potice reports, photographs, and the client,s
`medical records and wage information; assisted the client in making his application for ro-fault
`beneflts; gave notice to and otherwise communicated with the insurance carriers for the
`deiendant driver and owner; communicated with the client's medical providers and hearth
`insurers; gave notice to the client's sutril carrier; counseled the client with regard to his medical
`treatment, possible bankruptcy, and other matters; coordinated some of the client,s ongoing
`medical treatment and the client's submissioh to physical examinations demanded by the no-
`faull canier; and evaluated Ieports of such examinations or treatment, plaintiff asserts that its
`communications with the liability carriers for the offending owner and driver included
`discussions in the nature of pre-action setflement negotiations. However, how far such
`negotiatlons had proceeded by December 2003 is not disclosed by plain1iff, although plaintiff
`does acknowledge that no setflement demand was ever made by it inasmuch as the client.s
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`medical srtuation was then still in flux.
`
`on ihe other hand, defendant's efforts on beharf of the crient after December 2003
`generally included taking in rhe case; conducting an inhial and between 10 and 30 foflow-up
`atlorney-clienl conferences, as well as canying on an unspecified number of telephone
`
`conversations with the client; obtaining the case file from plaintiff; helping the client with his
`application for social security djsability benefits; obtaining and reviewing the cuent,s medlcal and
`other records; gathering and analyzing his lost-wage informarion: communicating with the
`liability caniers, the no-fault carier, and the client's truslee in bankruptcy; n.ronitoring the client,s
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`ongoing medicar treatment and rMEs and anaryzing reports thereof; preparing, firing, and
`serving the preadings and virtualy aI papers in the ritigation; reviewing the other side,s
`preadings and papers; conducting afl formar discovery in the case, incruding representing the
`client at this doposition by the underiying defendants (the only deposition conducted in the
`underlying case); attending murtipre pre-triar conferences, and urtimatery obtaining a setflement
`on behalf of tlre client in the amount of g j.45 million (g50,000 less than the availabte insurance
`coverage).
`
`Arthough both parties are abre to rist their respective efforts (or most of their efforts) on
`behalf of the crient by date, neither of the panies kept time records (the claim being one for
`personar injury), nor does either parfy set forth or suggest an appropriate hourry biling rate for
`the time spent on the craim by rawyers, pararegars, or other suppor.t persons within each firm
`For that reason, the court must assess the effort-on-the-case factor using criteria other than
`dorrars-per-hour spent on the fire, As to the nature and comprexity of the metter, the coud,s
`firrn impression from reading the submissions is that the underrying mafier was a typicar and
`shaightforward if ultimately lucrative personal injury claim, and that each firm,s etforts on beharf
`of the client during its respective stint as his counsel were entirety routine.
`underthe crrcumstances, and considering the Kennedl criteria - primarily the nature of
`the matter; the unquestioned effort, competence and ski[ by which the modest demands of the
`representarion were met by the two experienced and weI|-reputed raw firms at pertinent timesi
`and the results urtimatery achieved by each party - the court concrudes that praintiff is entifled
`to a one-third share of the fee. The court bases that award of the "first third,, of the fee upon
`plaintiff's efforts and success in entering into the retainer agreement with the crient, in
`conjunction with that firm's dil:gent representation of him for the next seven months, albeit not
`to the point of commencement of the action. conversery, the coun conorudes that defendant is
`entitled to two thirds of the fee- The court bases that aliocation on <lefendants, efforts on
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`beharf ofthe crient during the apwoximatery 2y2 years between the crient,s firing of plaintiff and
`defendant's successfur ritigation, to the point of set ement, ofthe action that it commenced on
`the client's beharf. Indeed, the court wourd automaticafly award defendant the ,,tast
`third,, of the
`fee based its obtaining of the $1.45 miflion setflement for the crient. concerning the *middre
`third' of the fee, the court concrudes that the parties' presentations ove*hermingry
`demonstrate defendant's entiflement to that portion of the fee. Again, it was defendant who
`c.mmenced the action on behaif of the crient, who engaged in afl formar discovery in such
`action, and who ritigated the action to the point of recovery. with respect to praintiffs essentiar
`request to recover one harf of the "middre third" of the fee, the court wourd note that, although
`plaintiffs efforts between Aprir and December 2003 were not ot insubstantial service to tho
`client, the court perceives very ritfle that was done by praintiff that a) conrribuled direcfly and
`concretely to the ultimate successful resolution of the case; and b) \/as not duplicated or
`replicated by defendant on ils way to obtaining the favorable setflem€nt of the case.
`Accordingly, it is oRDERED and ADJUDGED that praintiff is entifled to recover
`$150,000 from defendant as praintiffs rightfur share of the attorney fee in the underrying matter,
`plus interest at the rate of golo per year from August 1, 2006.
`
`SO ORDERED:
`
`HON. PATRICK H. NeMOyER, J.S.C
`
`fuiiii,i-iPr37gn
`
`APR 63 2612
`
`J. O'CONNOn
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`-9-
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