44 Misc. 2d 643 | N.Y. Sup. Ct. | 1964
Spec. Ref. By an order of Hon. Edward T. McCaffrey, a Justice of this court, dated August 7, 1964, the issue regarding the amount of moneys 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 my recommendations.
A hearing was held before me on October 15, 1964, at which plaintiff, his attorney, moving trial counsel, the State Insurance Fund and Sehlossman’s, Inc., by its attorney, appeared.
The record shows that after a jury trial of a negligence action for personal injuries, plaintiff recovered a judgment of $7,233, 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 Buies 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 Judiciary Law, §§ 474, 475; Workmen’s Compensation Law, § 29).
As set forth in the moving affidavit, the credible evidence adduced before me established that counsel disbursed and expended moneys 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 Buies of the Appellate Division regarding contingent retainer agreements in personal injury actions, the following is a computation of the legal fee which moving counsel is entitled to recover first here:
Judgment .................................... $7,233.00
Less disbursements............................ 2,761.32
Total .................................... $4,471.68
$500 equals 50% of first $1,000.................. 1,000.00
$3,471.68
$800 equals 40% of next $2,000.................. 2,000.00
$515.08 equals 35% of next $22,000
$1,471.68
$1,815.08 — Total Fee allowable.
Due to the limited funds remaining after payment of the attorney’s fees and disbursements (supra), it is necessary to consider the question of priority between the two creditors, the State Insurance Fund and the Welfare Department of the County of Ulster. In this respect, it is to be noted that until April 16, 1964, section 104 of the Social Welfare Law did not give priority to the Commissioner of Welfare, Ulster County, over other claimants (see Matter of Smith, 11 Misc 2d 657). It merely permitted a public welfare agency to bring an action or proceeding against a person discovered to have real or personal property. By amendment effective April 16, 1964, however, it now appears that in all claims of the public welfare official made under section 104 of the Social Welfare Law, he is to be deemed a preferred creditor (see L. 1964, ch. 573). Similarly, section 29 of the Workmen’s Compensation Law, under which the State
Diving due consideration to the foregoing, it is my opinion that, after payment to counsel, as above stated, the State Insurance Fund is entitled to prior payment before the claim of the Commissioner of Welfare, Ulster County.
Accordingly, I so report and recommend payment and allocation of the funds involved as follows and in the order of their priority:
1 — Counsel fees and disbursements, $4,576.40.
2 — The State Insurance Fund, $1,'585.74.
3 — The balance of $1,070.86 to the Commissioner of Welfare, Ulster County.