Lamonte v. Shapiro
| Decision Date | 27 October 1964 |
| Citation | 44 Misc.2d 643,254 N.Y.S.2d 887 |
| Court | New York Supreme Court |
| Parties | Joseph LAMONTE, Plaintiff, v. Ben SHAPIRO, Defendant. |
Mortimer Getzels, Legal Aid Society (Irwin A. Rosenberg, New York City, of counsel), for plaintiff.
Perrell, Nielsen & Stephens, New York City, for defendant.
Zale & Toberoff, New York City, pro se.
Joseph M. Soviero, New York, City, for State Ins. Fund (Leonard M. Schnitzer and Arnold M. Herzog, New York City, of counsel).
Pepperbloom & Pepperbloom, New York City, for Schlossmans, Inc.
SEYMOUR BIEBER, Special Referee.
By an order of Hon. Edward T. McCaffrey, a Justice of this Court, dated August 7, 1964, the issue regarding the amount of monies to be allocated from the proceeds of a judgment to each of the parties involved was referred to me, to hear and report, together with may recommendations.
A hearing was held before me on October 15, 1964, at which plaintiff, his attorney, moving trial counsel, The State Insurance Fund and Schlossman's Inc., by its attorney, appeared. Although all other parties concerned were properly served with a notice of hearing, (see Ex. 1), it is to be noted that neither the Welfare Department, Ulster County, New York nor Bronx Hospital, two principal lienors, appeared. A transcript of the minutes taken by an Official Stenographer was waived. All exhibits and legal memoranda submitted by counsel at the conclusion of the hearing are filed herewith.
The record shows that after a jury trial of a negligence action for personal injuries, plaintiff recovered a judgment of $7,233.00, including costs. Arthur C. Zale, Esq., his trial counsel, had duly filed a contingent retainer agreement which provided for a sliding scale fee in accordance with the applicable rules of the Appellate Division. None of the parties before me disputes counsel's claim that he is entitled to recover his fee and disbursements from the proceeds of the judgment before any payment may be made to other lienors or assignors (see Secs. 474, 475, Judiciary Law; Sec. 29, Workmen's Compensation Law).
As set forth in the moving affidavit, the credible evidence adduced before me established that counsel disbursed and expended monies on behalf of plaintiff during the prosecution and trial of this action amounting to $2,761.32. The claimed expenditures of $10 for photostats, $4 for service of motion papers and $15 for long distance telephones have been disallowed because, in my opinion, counsel failed to prove same by proper proof. All other expenditures, in my opinion, were necessary, reasonable and proper.
Giving due consideration to the rules of the Appellate Division regarding contingent retainer agreements in personal injury actions, the following as a computation of the legal fee which moving counsel is entitled to recover first here:
Judgment $7,233.00
Less disbursements 2,761.32
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Total $4,471.68
$500 equals 50% of first $1,000 1,000.00
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$3,471.68
$800 equals 40% of next $2,000 2,000.00
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1,471.68
$515.08 equals 35% of next $22,000
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$1,815.08 -- Total Fee allowable
After deducting the counsel fee of $1,815.08 and the disbursements of $2,761.32 from the judgment of $7,233.00, a total of $4,576.40, there remains a balance of $2,656.60 for the satisfaction of liens and assignments pending against plaintiff. These include a lien of $1,585.74 of The State Insurance Fund for medical treatment payments and Workmen's Compensation Board awards and a $2,069.51 lien of the Commissioner of Public Welfare of Ulster County, New York. It is obvious that there are insufficient monies remaining to satisfy these liens, let alone any balance of monies to make a payment to plaintiff, as requested by his attorney. Efforts to have these agencies reduce or waive their respective lien have been of no avail. Moreover, although it is a most unfortunate result that the person suffering the injuries and pain will not receive any part of the recovery here, nevertheless, contrary to the argument set forth in plaintiff's counsel's brief, nothing in the record warrants the conclusion that the contingent fee agreement was unconscionable, nor is there any valid reason to deny trial counsel the full fee he is entitled to by virtue thereof. Significantly, no monies deducted from such fee would revert to plaintiff himself in view of the outstanding liens and assignments still existing after the allocation of the subject funds. With respect to the purported liens of Bronx Hospital and Schlossman's, Inc., as...
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