IN RE: Jacqueline Fiore BLUMERT

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Jacqueline Fiore BLUMERT, etc., Respondent, v. NANNY HAGEN LEASING, LTD., et al., Defendants; Charles Berkman, etc., Nonparty-Appellant.

Decided: May 29, 2001

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, DANIEL F. LUCIANO and HOWARD MILLER, JJ. Charles Berkman, Brooklyn, N.Y. (Ephrem Wertenteil of counsel), for nonparty-appellant pro se. Donald Brenner, Tappan, N.Y., for respondent.

In a proceeding to determine the amount of the attorney's fee owed by the estate to the former attorney for the decedent in an underlying personal injury action, the former attorney for the decedent, Charles Berkman, appeals, as limited by his brief, from so much of an order of the Surrogate's Court, Rockland County (Weiner, S.), dated May 22, 2000, as awarded him an attorney's fee in the sum of only $28,000.

ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof awarding the appellant an attorney's fee in the sum of $28,000 and substituting therefor a provision awarding the sum of $49,000;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.

Under the circumstances of this case, the appellant is entitled to recover in quantum meruit an attorney's fee in the sum of $49,000 based upon the number of hours he devoted to the decedent's case which were approved by the Surrogate's Court and his claimed hourly rate.   The appellant is entitled to his hourly rate in light of the terms of the retainer agreement, his approximately 45 years of experience as an attorney concentrating in negligence law, the fact that he brought the case to completion after the decedent's death, and the respondent's failure to adequately contest the hourly rate (see, Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 541 N.Y.S.2d 742, 539 N.E.2d 570;  Matter of Tillman, 259 N.Y. 133, 135, 181 N.E. 75;  Matter of Krooks, 257 N.Y. 329, 178 N.E. 548;  Finkelstein v. Kins, 124 A.D.2d 92, 511 N.Y.S.2d 285, amended 131 A.D.2d 351, 519 N.Y.S.2d 341).   Accordingly, the appellant is awarded an attorney's fee in the sum of $49,000.

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