SPEKEN v. Claire Pare, Nonparty-Appellant. (2001)

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about April 12, 2000, which, in a wrongful death action based on medical malpractice, insofar as appealed from, declared the retainer agreement between plaintiff Dr. Speken and Claire Pare, Esq. to be invalid, and referred the issue of whether Pare is entitled to a fee based on quantum meruit to a Special Referee, unanimously affirmed, without costs.

Plaintiffs' son died allegedly as a result of defendants' medical malpractice.   Defendants counterclaimed for indemnification and contribution against one of the plaintiffs, a doctor, alleging that he treated his son and committed malpractice himself.   Pare was retained to defend Dr. Speken on the counterclaim.   By the terms of the retainer, Pare was to be compensated in the amount of 25% of the net proceeds received by plaintiffs in the wrongful death action after payment of plaintiffs' attorneys' fees in the wrongful death action.   Such a contingency retainer will leave plaintiffs with less than what they are entitled to under the mandatory maximum fee contingency schedule for malpractice actions in Judiciary Law § 474-a(2), and is thus unenforceable (see, Matter of Polyan, 204 A.D.2d 727, 612 N.Y.S.2d 427).