NUNEZ v. LLP (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, nonparty Krentsel Guzman Herbert, LLP, appeals from an order of the Supreme Court, Queens County (Laurentina S. McKetney Butler, J.), entered July 22, 2024. The order, insofar as appealed from, after a hearing, denied that branch of the motion of nonparty Krentsel Guzman Herbert, LLP, which was for an allocation of a portion of a net contingency fee obtained in the action.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the motion of nonparty Krentsel Guzman Herbert, LLP, which was for allocation of a portion of the net contingency fee obtained in the action, and substituting therefor a provision granting that branch of the motion to the extent of determining that nonparty Krentsel Guzman Herbert, LLP, is entitled to 10% of the net contingency fee obtained in the action; as so modified, the order is affirmed insofar as appealed from, with costs to the nonparty-appellant.

Nonparty Krentsel Guzman Herbert, LLP (hereinafter the Krentsel firm), represented the plaintiff in commencing this action to recover damages for personal injuries. Approximately one year later, the plaintiff discharged the Krentsel firm, and nonparty Alan Ripka & Associates, LLP (hereinafter the Ripka firm), was substituted as counsel for the plaintiff. Approximately two years later, the Ripka firm settled the matter. The Krentsel firm moved, inter alia, for an allocation of a portion of a net contingency fee obtained in the action for its prior representation of the plaintiff. After a hearing, the Supreme Court, among other things, denied that branch of the motion, finding insufficient evidence to warrant a fee award. The Krentsel firm appeals.

“When there is a fee dispute between the current and discharged attorneys for the plaintiff in an action to which a contingent fee retainer agreement applies, the discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on his or her proportionate share of the work performed on the whole case” (Tirado-Sottosanyti v Crowley, 220 AD3d 820, 822 [alteration and internal quotation marks omitted]; see Del Rosso v Staten Is. Univ. Hosp., 246 AD3d 875, 876). “Where, as here, an election was not made by the outgoing attorney at the time of discharge, there is a presumption that the attorney has chosen a proportionate share of the contingency fee” (Reyes-Lopez v Mendez, 217 AD3d 798, 799; see Llivicura v 101 W. 78th, LLC, 214 AD3d 862, 863). “ ‘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' ” (Jules v David, 210 AD3d 970, 972, quoting Robinson & Yablon, P.C. v Sacco & Fillas, LLP, 192 AD3d 1154, 1155). “ ‘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’ ” (Tirado-Sottosanyti v Crowley, 220 AD3d at 822, quoting Lamanna v Compitiello, 213 AD3d 833, 834).

The Supreme Court improvidently exercised its discretion in declining to award the Krentsel firm a portion of the contingency fee, since there was evidence with which the court could determine the Krentsel firm's proportionate share of the work performed for the plaintiff in this case (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658–660).

Here, while the Krentsel firm failed to submit time records in support of the services it rendered, the value of its services can be ascertained based on the testimony at the hearing of the attorney who handled the case, who estimated the number of hours spent on the matter, and documents reflecting the work performed (see Tucker v Schwartzapfel Lawyers, P.C., 196 AD3d 527, 529; Kokkalis v. Arnstein, 173 AD3d 723, 724; cf. Oz v. GCPKOP, LLC, 210 AD3d 689, 690).

Under the circumstances and considering the time and labor expended by each attorney in the action, the skill required for the various work performed, and the effectiveness of each counsel's legal work, the Krentsel firm is entitled to 10% of the net contingency fee obtained in the action (see Lamanna v. Compitiello, 213 AD3d at 834; Jules v. David, 210 AD3d at 973).

GENOVESI, J.P., CHAMBERS, VOUTSINAS and HOM, JJ., concur.