MAZZA v. LLP

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

Thomas MAZZA, plaintiff, v. Robert MARCELLO, defendant; Donald Friedman, P.C., nonparty-appellant; Jacoby & Meyers, LLP, nonparty-respondent.

Decided: July 25, 2005

ANITA R. FLORIO, J.P., HOWARD MILLER, BARRY A. COZIER, and ROBERT A. SPOLZINO, JJ. Donald Friedman, P.C., Brooklyn, N.Y. (Mitchell Gorkin of counsel), nonparty-appellant pro se. Finkelstein & Partners, LLP, Newburgh, N.Y. (Terry D. Horner of counsel), for nonparty respondent.

In an action to recover damages for personal injuries, Donald Friedman, P.C., the plaintiff's attorney, appeals from an order of the Supreme Court, Richmond County (Aliotta, J.), dated July 23, 2004, which granted the motion of Jacoby & Meyers, LLP, the plaintiff's former attorney, to determine an attorney's fee for legal services rendered by Jacoby & Meyers, LLP, and directed it to pay Jacoby & Meyers, LLP, the sum of $8,929.60, representing 40% of the total attorney's fee of $22,324.

ORDERED that the order is affirmed, with costs.

 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 (see Juste v. New York City Tr. Auth., 5 A.D.3d 736, 773 N.Y.S.2d 597;  Ebrahimian v. Long Is. R.R., 269 A.D.2d 488, 703 N.Y.S.2d 731).   Contrary to the appellant's contention, the trial court did not improvidently exercise its discretion in awarding the former attorney 40% of the total legal fee, as such fee was based upon the amount of time spent on the case, and the nature of the work performed.

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