Vance v. Northern Electric Co.
261 A.D.2d 851
N.Y. App. Div.
1999
Check Treatment

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in its apportionment of the legal fees awarded to respondent, Dixon & Hamilton, L. L. P. (Dixon), the firm substituted for petitioner, DeMarie & Schoenborn, P. C. (DeMarie), as *852counsel for plaintiff. The partners of Dixon were formerly employed as associates by DeMarie. DeMarie and its former employees entered into an agreement providing that an associate who brought a client to the firm would receive 60% of the fee charged to that client and the firm would receive 40%. The agreement did not specify a fee arrangement in the event that the associate’s employment relationship was terminated, and the court erred in constructing such an agreement (see, McLean v Michaelowsky, 117 Mise 2d 699, 701). The court erred in determining that DeMarie is entitled to only 40% of the fee because the fee at issue was earned both during the employment relationship and after its termination. Therefore, it is not subject to the agreement (cf, Grasso v Kubis, 198 AD2d 811). The court properly calculated that 62.2% of the fee was earned during the employment relationship with DeMarie. Thus, DeMarie is entitled to 62.2% of the total fees earned (see, Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 458-459). We modify the order accordingly by providing that the award to DeMarie is $15,333.99.

We do not consider the further contention of DeMarie that the court erred in denying its application for a hearing. DeMarie failed to take a timely appeal from the order denying that application. (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Counsel Fees.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Callahan, JJ.