IN RE: POLIZZOTTO & POLIZZOTTO (2026)

DECISION & ORDER

In a proceeding pursuant to Judiciary Law § 475 to apportion attorney's fees, David S. Kohn appeals from an order of the Supreme Court, Nassau County (Rhonda E. Fischer, J.), entered March 18, 2025.  The order, after a hearing, awarded the petitioner 80% of the net contingency fee recoverable in a related action and awarded David S. Kohn only 20% of the net contingency fee.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, David S. Kohn is awarded 831/313% of the net contingency fee recoverable in the related action and the petitioner is awarded 162/323% of the net contingency fee.

In November 2021, Maryum Qureshi retained David S. Kohn to represent her in commencing an action to recover damages for personal injuries (hereinafter the personal injury action).  After Kohn secured a settlement offer of $500,000 on behalf of Qureshi, Qureshi retained the petitioner to represent her in the personal injury action.  The petitioner obtained a settlement of $600,000 on behalf of Qureshi.  Following the settlement, the petitioner commenced this proceeding pursuant to Judiciary Law § 475 to apportion the attorney's fees.  Following a hearing, the Supreme Court awarded 80% of the net contingency fee to the petitioner and only 20% to Kohn. Kohn appeals.

When there is a fee dispute between the current and discharged attorney 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 (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658;  Messina v Wedderburn, 222 AD3d 741, 743).  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 (see Messina v Wedderburn, 222 AD3d at 743;  Reyes–Lopez v Mendez, 217 AD3d 798, 799).  The issue of apportionment of an attorney's fee is controlled by the circumstances and equities of each particular case (see Reyes–Lopez v Mendez, 217 AD3d at 799;  Jules v David, 210 AD3d 970, 972).  The apportionment of the attorney's fee is a discretionary determination to be made by the court based upon such factors as the amount of time spent by the attorneys on the case, the nature of the work performed, and the relative contributions of counsel toward achieving the outcome (see Reyes–Lopez v Mendez, 217 AD3d at 799–800;  Jules v David, 210 AD3d at 972).

Here, the Supreme Court improvidently exercised its discretion in awarding the petitioner 80% and Kohn only 20% of the net contingency fee recovered in the personal injury action, as the record reflects that Kohn's contributions to the personal injury action were both proportionally and substantively greater than those of the petitioner.  The testimony adduced at the hearing established that Kohn was an experienced personal injury attorney and that he conducted the initial investigation into Qureshi's accident, developed a theory of liability, drafted the pleadings, commenced the personal injury action, and engaged in discovery, including by obtaining Qureshi's medical records, drafting discovery demands and responses, and drafting a bill of particulars.  Kohn also represented the plaintiff at her examination under oath and at a mediation, which ultimately resulted in the $500,000 settlement offer.  In contrast, the petitioner obtained and produced updated medical records, responded to outstanding discovery demands, and continued settlement negotiations in the personal injury action, ultimately settling the action for $600,000.  Under these circumstances, where Kohn contributed substantially more of the work and brought the case to a settlement offer that was not substantially less than the one that ultimately was accepted, the court's determination was not warranted by the facts (see Soriano v EAN Holdings, LLC, 220 AD3d 641, 642;  Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 371;  see generally Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499).  Under the circumstances, we deem it appropriate to award Kohn 831/313% of the net contingency fee and the petitioner 162/323% of the net contingency fee.

BARROS, J.P., BRATHWAITE NELSON, LOVE and QUIRK, JJ., concur.