Becker v. Huss Co., Inc.
| Decision Date | 17 December 1976 |
| Citation | 390 N.Y.S.2d 349,55 A.D.2d 854 |
| Parties | Charles E. BECKER, Jr., Appellant, v. HUSS CO., INC., Defendant. HUSS CO., INC., Third-Party Plaintiff, v. SPAULDING LUMBER COMPANY, Third-Party Defendant, and Fedders Corporation, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Cosgrove & O'Connor, David C. Quinn, Buffalo, for appellant.
Peter M. Pryor, New York City, Evan E. James, Buffalo, of counsel, for third-party defendant-respondent.
Before MOULE, J.P., and SIMONS, DILLON, GOLDMAN and WITMER, JJ.
Plaintiff appeals from an order denying him apportionment of attorneys' fees for recovery of a judgment for damages in a third-party action which was subject to a Workmen's Compensation lien.
Plaintiff was injured in a work related incident on January 19, 1970 and received compensation benefits from his employer totalling $3,449.75. Thereafter he brought a third-party action and in November, 1975 received a verdict for damages of $10,000 upon which his employer filed a lien for the compensation benefits paid earlier. Plaintiff then brought this motion for apportionment of the attorneys' fees pursuant to section 29, subdivision (1) of the Workmen's Compensation Law (L.1975, c. 190, § 1, effective June 10, 1975).
We hold that the statute applies to any recovery by settlement or judgment after June 10, 1975 and that plaintiff is entitled to apportionment (see Gonzalez v. Mans, 54 A.D.2d 576, 387 N.Y.S.2d 142; Cardillo v. Long Island College Hospital, 86 Misc.2d 438, 382 N.Y.S.2d 642; Wargo v. Longo, 85 Misc.2d 898, 380 N.Y.S.2d 1009; Arman v. Marx, 85 Misc.2d 406, 381 N.Y.S.2d 592; Greenough v. Deblinger, 84 Misc.2d 463, 376 N.Y.S.2d 869). The fee may be computed upon a contingent percentage basis of the amount received. Although the statute is silent on the point, such fees are commonly accepted in personal injury litigation and the percentage which may be charged is specifically set forth in the rules of this court (Wargo v. Longo, supra; 22 NYCRR 1022.30; and see DeGraff, Foy, Conway & Holt-Harris v. McKesson & Robbins, Inc., 31 N.Y.2d 862, 340 N.Y.S.2d 171, 292 N.E.2d 310). The record does not contain evidence of the agreed fees and disbursements which will enable us to make an apportionment. We, therefore, remit the matter to determine respondent's pro rata share of the one-third contingent fee after deducting expenses and disbursements (see 22 NYCRR 1022.30). Respondent is also...
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O'CONNOR v. Lee-Hy Paving Corp.
...agree on a calculation, they may make such further submissions as they think necessary. It is so ORDERED. 1 Two of the cases included in the Becker appeal appear to have allocated the fee to the lien in the ratio that the lien bore to the total recovery: Becker v. Huss Co., Inc., 55 App. Di......
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Butterfield v. Carpenter
...Grosse & Rossetti, Arthur A. Herdzik, Buffalo, for respondents. Order unanimously affirmed with costs. (See Becker v. Huss Co., Inc., 55 A.D.2d 854, 390 N.Y.S.2d 349, decided Dec. 17, 1976.) (Appeal from Order of Erie Supreme Court, Callahan, J.--Apportionment of Present: MARSH, P.J., and M......