Fuentes v. Brookhaven Memorial Hospital

• Citation: 843 N.Y.S.2d 639,2007 NY Slip Op 06830,43 A.D.3d 992
• Decision Date: 18 September 2007
• Docket Number: 2006-06294.
• Parties: CARMEN FUENTES et al., Plaintiffs, v. BROOKHAVEN MEMORIAL HOSPITAL et al., Defendants. PULVERS PULVERS & THOMPSON, LLP, Nonparty Appellant; RAPPAPORT GLASS GREENE & LEVINE LLP, Nonparty Respondent. (And a Third-Party Action.)
• Court: New York Supreme Court Appellate Division

43 A.D.3d 992

843 N.Y.S.2d 639

2007 NY Slip Op 06830

CARMEN FUENTES et al., Plaintiffs, v. BROOKHAVEN MEMORIAL HOSPITAL et al., Defendants PULVERS PULVERS & THOMPSON, LLP, Nonparty Appellant RAPPAPORT GLASS GREENE & LEVINE LLP, Nonparty Respondent. (And a Third-Party Action.)

2006-06294.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 18, 2007.

In an action to recover damages for medical malpractice, the nonparty Pulvers Pulvers & Thompson, LLP, former counsel to the plaintiff Carmen Fuentes, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated May 31, 2006, as granted that branch of the motion of the nonparty Rappaport Glass Greene & Levine LLP, current counsel to the plaintiff Carmen Fuentes, which, in effect, was to preclude its entitlement to an award of an attorney's fee.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which, in effect, was to preclude the nonparty appellant's entitlement to an award of an attorney's fee is denied, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the proportionate amount of the total attorney's fee to be awarded to the nonparty appellant.

On or about August 28, 1992 the plaintiff Carmen Fuentes (hereinafter the plaintiff) retained Carl Maltese to commence a medical malpractice action against Dr. Erol Caypinar and Brookhaven Memorial Hospital (hereinafter the hospital). The retainer did not contain Maltese's name, was not signed by the plaintiff Eric Embro, and provided for a 33 1/3 percent legal fee. Maltese filed a retainer statement with the Office of Court Administration (hereinafter OCA) and thereafter retained the nonparty appellant, Pulvers Pulvers & Thompson, LLP (hereinafter the appellant), as trial counsel. The appellant commenced the action by filing a summons and complaint and prosecuted it through the filing of the note of issue and pretrial preparations.

On May 15, 1997 the action against Dr. Caypinar was dismissed for Maltese's failure to have filed a notice of claim. Thereafter the Supreme Court granted the hospital's motion, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the hospital's liability was only vicarious and thus the dismissal against the physician required dismissal of the action against the hospital. On behalf of the plaintiff, the appellant filed a notice of appeal from the order granting the hospital's motion but did not take any further action on the appeal. The plaintiff subsequently retained the nonparty Rappaport Glass Greene & Levine LLP (hereinafter Rappaport), to prosecute a legal malpractice action against Maltese. Counsel for Maltese's legal malpractice insurance carrier thereafter perfected and prosecuted the appeal from the order granting the hospital's motion in the medical malpractice action. On August 9, 2004 this Court reversed that order and the medical malpractice action was reinstated against the hospital (see Fuentes v Brookhaven Mem. Hosp., 10 AD3d 384 [2004])....