Tutarashvili v. Barzilay

Apr 24, 2007
Versions:39 A.D.3d 851
832 N.Y.S.2d 810

Nina Tutarashvili, Plaintiff, v Avraham Barzilay et al., Defendants. Steven V. Podolsky, P.C., Nonparty Appellant; Napoli Bern Ripka, LLP, et al., Nonparty Respondents. [832 NYS2d 810]—In an action to recover damages for personal injuries, the nonparty Steven V. Podolsky, P.C., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated January 18, 2006, as, in effect, denied that branch of its motion which was to award it an attorney‘s fee pursuant to Judiciary Law § 475.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to award Steven V. Podolsky, P.C., an attorney‘s fee pursuant to Judiciary Law § 475 is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of the fee to be awarded to Steven V. Podolsky, P.C.

As the plaintiff‘s initial attorney of record, the appellant has a statutory lien pursuant to Judiciary Law § 475 against the settlement reached in this action (see Russell v Zaccaria, 8 AD3d 255 [2004]). In this fee dispute with the plaintiff‘s new attorneys, the appellant elected to receive a contingent percentage fee based on the proportionate share of the work it performed on the entire case (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658 [1993]; Matter of Gary E. Rosenberg, P.C. v McCormack, 250 AD2d 679, 679-680 [1998]). Therefore, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of the fee to be awarded to the appellant (see Smerda v City of New York, 7 AD3d 511, 512-513 [2004]).

Mastro, J.P., Ritter, Skelos, Carni and McCarthy, JJ., concur.