McCARTHY v. A. Angelo DiMillo, Respondent. (2007)

Brown Chiari, LLP (Brown Chiari), the law firm representing plaintiff when this personal injury action was settled, appeals from an order granting the motion of A. Angelo DiMillo, plaintiff's outgoing attorney, to enforce his attorney's lien upon the settlement proceeds received in this action and awarding him 35% of the net contingent attorney's fee.   Under the circumstances of this case, where the fee dispute is solely between the incoming and outgoing attorneys, DiMillo is entitled to elect the method of computing his fee, and the record establishes that he has elected to receive a contingent percentage fee based upon the proportionate share of the work he performed on the whole case (see Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 602 N.Y.S.2d 788, 622 N.E.2d 288;  Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458, 541 N.Y.S.2d 742, 539 N.E.2d 570;  Smerda v. City of New York, 7 A.D.3d 511, 512, 776 N.Y.S.2d 86).

 Contrary to the contention of Brown Chiari, Supreme Court properly considered the amount of time that DiMillo and Brown Chiari spent on the case, the work performed, and the amount of money recovered in fixing the respective percentages to be awarded to them (see Lai Ling Cheng, 73 N.Y.2d at 458, 541 N.Y.S.2d 742, 539 N.E.2d 570;  Abenante v. Star Gas Corp., 33 A.D.3d 638, 821 N.Y.S.2d 911;  Brown v. Governele, 29 A.D.3d 617, 815 N.Y.S.2d 651).   Both DiMillo and Brown Chiari performed significant work on the case resulting in the settlement, and we conclude that the court did not abuse its discretion in awarding 35% of the net contingent attorney's fee to DiMillo (see generally Matter of Wingate, Russotti & Shapiro, LLP v. Friedman, Khafif & Assoc., 41 A.D.3d 367, 370-371, 839 N.Y.S.2d 469).

 The further contention of Brown Chiari that DiMillo should be precluded from recovering an attorney's fee because he engaged in unethical conduct is raised for the first time in its reply brief and thus is not properly before us (see Turner v. Canale, 15 A.D.3d 960, 790 N.Y.S.2d 347, lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189;  Greene v. Xerox Corp., 244 A.D.2d 877, 878, 665 N.Y.S.2d 137, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: