PEREZ v. John P. DeMaio, nonparty-respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, nonparties Kenneth J. Gorman and Wade T. Morris appeal from a judgment of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated December 6, 2022.  The judgment, insofar as appealed from, upon an order of the same court dated November 2, 2022, without a hearing, inter alia, awarding nonparties Kenneth J. Gorman and Wade T. Morris attorneys’ fees in the sum of only $50,000, awarded nonparties Kenneth J. Gorman and Wade T. Morris attorneys’ fees in the sum of only $46,816.70, after a deduction for disbursements already paid.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

A client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney (see Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 43, 556 N.Y.S.2d 239, 555 N.E.2d 611;  Sessa v. Doxey, 172 A.D.3d 939, 940, 97 N.Y.S.3d 871).  “In general, a hearing is required to determine whether a client has cause for discharging an attorney” (Doviak v. Finkelstein & Partners, LLP, 90 A.D.3d 696, 699, 934 N.Y.S.2d 467;  see Sessa v. Doxey, 172 A.D.3d at 940, 97 N.Y.S.3d 871;  Hawkins v. Lenox Hill Hosp., 138 A.D.2d 572, 572, 526 N.Y.S.2d 153).  However, “ ‘a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue’ ” (Hawkins v. Lenox Hill Hosp., 138 A.D.2d at 572, 526 N.Y.S.2d 153, quoting People v. Gruden, 42 N.Y.2d 214, 215, 397 N.Y.S.2d 704, 366 N.E.2d 794;  see Sessa v. Doxey, 172 A.D.3d 939, 97 N.Y.S.3d 871).  Under the circumstances of this case, the Supreme Court properly determined that a hearing was not required, as there was no factual dispute as to the attorneys’ conduct (see Sessa v. Doxey, 172 A.D.3d at 940, 97 N.Y.S.3d 871;  Hawkins v. Lenox Hill Hosp., 138 A.D.2d at 572, 526 N.Y.S.2d 153).

Further, the award of attorneys’ fees in favor of nonparties Kenneth J. Gorman and Wade T. Morris in the sum of only $50,000 is supported by the record.  “The issue of apportionment of an attorney's fee is controlled by the circumstances and equities of each particular case, and the trial court is in the best position to assess such factors” (Lamanna v. Compitiello, 213 A.D.3d 833, 834, 184 N.Y.S.3d 767;  see Oz v. GCPKOP, LLC, 210 A.D.3d 689, 178 N.Y.S.3d 122).  “An award of ․ reasonable attorney's fee[s] is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed” (Lamanna v. Compitiello, 213 A.D.3d at 834, 184 N.Y.S.3d 767 [internal quotation marks omitted];  see Tirado–Sottosanyti v. Crowley, 220 A.D.3d 820, 822, 198 N.Y.S.3d 150;  Oz v. GCPKOP, LLC, 210 A.D.3d at 690, 178 N.Y.S.3d 122).

Here, notwithstanding the Supreme Court's finding that Gorman and Morris were discharged for cause, an affidavit of Venus Ortiz, without more, failed to establish that Gorman and Morris were discharged for cause, a circumstance that would have defeated their right to compensation for their services (see Tirado–Sottosanyti v. Crowley, 220 A.D.3d at 823, 198 N.Y.S.3d 150).  Based upon the record in this case, it cannot be said that the award of attorneys’ fees in the sum of $50,000 to Gorman and Morris was an improvident exercise of discretion (see id.).

GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.