76 A.D.2d 800 | N.Y. App. Div. | 1980
Lead Opinion
Order, Supreme Court, New York County, entered February 15, 1979, granting partial summary judgment to plaintiff class and awarding attorneys’ fees to plaintiffs’ attorneys in an amount to be later determined, reversed, without costs, on the law and on the facts, to the extent that it awarded counsel fees, without prejudice to a new application to be made on notice to members of the class, and remanded for further proceedings in accordance herewith. Order, Supreme Court, New York County, entered June 22, 1979, fixing the amount of attorneys’ fees at $26,000 reversed, on the law and on the facts, without costs. The principal issue litigated on this appeal is whether the record supports an attorneys’ fee award of $26,000 payable out of a $525,255 fund resulting from plaintiffs’ motion for partial summary judgment which was essentially unopposed by defendants. The fund resulted from a recomputation of death benefits payable to members of the class because of retroactive pay increases mandated by the Court of Appeals in Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York (41 NY2d 205). Under the circumstances presented, attorneys’ fees should not have been awarded without notice of the application to members of the class. Moreover, we find the record inadequate to enable us to determine the reasonable value of the legal services rendered. On September 14, 1977, Margaret Sheridan, a police officer’s widow, commenced an action on behalf of herself and all other beneficiaries of death benefits from the defendant Police Pension Fund of the City of New York (Pension Fund) claiming that additional benefits were due under several different, and cumulative, theories. One of the claims, set forth in paragraph 16 of the complaint, alleged that defendants "computed and continue to compute the benefits of plaintiff and of other beneficiaries at an amount less than that actually due by failing to include retroactive pay and other sums becoming due or received after the death of the member of the pension fund.” On October 19, 1977, the defendants served an answer consisting of a general denial of the substantive allegations of the complaint. On December 14, 1977, Mrs. Sheridan moved to maintain the action as a class action. On January 19, 1978, a representative of the Pension Fund conceded, in the course of a deposition, that the death gamble benefits (Administrative Code of City of New York, § B18-38.0, subd d) were going to be recalculated to include retroactive salary increases. It therefore appears that prior to April 5, 1978, when an order for class action status was entered, there was virtually no "risk of litigation” with regard to payments due to the plaintiff class which resulted in the fund of $525,255. By notice dated September 22, 1978, plaintiffs moved for partial summary judgment and attorneys’ fees solely with regard to the claim contained in paragraph 16 of the complaint. It is notable that the attorney’s affirmation in support of the motion mentioned, for the first time, that the retroactive wage increases referred to in paragraph 16 were mandated by the Court of
Concurrence Opinion
I add only that in my view a court should never award an attorney a fee out of moneys belonging to third persons— here the class that the attorneys undertook to represent—without notice, actual or constructive, of the application to those third persons.
Concurrence in Part
I would affirm the order of February 15, 1979. With respect to the order of June 22, 1979, I concur only on the limited basis that it would be preferable when attorneys’ fees are awarded in a class action, that there be a hearing on notice to all interested parties.