| Fuentes v Brookhaven Mem. Hosp. |
| 2007 NY Slip Op 06830 [43 AD3d 992] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Carmen Fuentes et al., Plaintiffs, v Brookhaven MemorialHospital et al., Defendants. Pulvers Pulvers & Thompson, LLP, Nonparty Appellant; RappaportGlass Greene & Levine LLP, Nonparty Respondent. (And a Third-PartyAction.) |
—[*1] Rappaport Glass Greene & Levine LLP, Hauppauge, N.Y. (Michael G. Glass of counsel),nonparty respondent pro se.
In an action to recover damages for medical malpractice, the nonparty Pulvers Pulvers &Thompson, LLP, former counsel to the plaintiff Carmen Fuentes, appeals, as limited by its brief,from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated May 31,2006, as granted that branch of the motion of the nonparty Rappaport Glass Greene & LevineLLP, current counsel to the plaintiff Carmen Fuentes, which, in effect, was to preclude itsentitlement to an award of an attorney's fee.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion which, in effect, was to preclude the nonparty appellant's entitlement to anaward of an attorney's fee is denied, and the matter is remitted to the Supreme Court, SuffolkCounty, for a determination of the proportionate amount of the total attorney's fee to be awardedto the nonparty appellant.
On or about August 28, 1992 the plaintiff Carmen Fuentes (hereinafter the plaintiff) [*2]retained Carl Maltese to commence a medical malpractice actionagainst Dr. Erol Caypinar and Brookhaven Memorial Hospital (hereinafter the hospital). Theretainer did not contain Maltese's name, was not signed by the plaintiff Eric Embro, and providedfor a 33
On May 15, 1997 the action against Dr. Caypinar was dismissed for Maltese's failure to havefiled a notice of claim. Thereafter the Supreme Court granted the hospital's motion, in effect, forsummary judgment dismissing the complaint insofar as asserted against it on the ground that thehospital's liability was only vicarious and thus the dismissal against the physician requireddismissal of the action against the hospital. On behalf of the plaintiff, the appellant filed a noticeof appeal from the order granting the hospital's motion but did not take any further action on theappeal. The plaintiff subsequently retained the nonparty Rappaport Glass Greene & Levine LLP(hereinafter Rappaport), to prosecute a legal malpractice action against Maltese. Counsel forMaltese's legal malpractice insurance carrier thereafter perfected and prosecuted the appeal fromthe order granting the hospital's motion in the medical malpractice action. On August 9, 2004 thisCourt reversed that order and the medical malpractice action was reinstated against the hospital(see Fuentes v Brookhaven Mem.Hosp., 10 AD3d 384 [2004]). Rappaport then prosecuted the revived medicalmalpractice action until it was settled on June 17, 2005 leading to this dispute betweenRappaport and the appellant concerning disbursement of the legal fees earned.
On July 1, 2005 Rappaport moved, inter alia, in effect, to preclude the entitlement of theplaintiff's prior attorneys to an award of an attorney's fee with respect to their representation ofthe plaintiff in the medical malpractice action. The appellant claimed it was entitled to a portionof the fees earned pursuant to Judiciary Law § 475, while Maltese did not assert any claimto the fee. In the order appealed from, the Supreme Court determined, among other things, thatthe appellant was not entitled to a share in the fees on the ground that it was operating underMaltese's unenforceable "blank" retainer agreement. We reverse the order insofar as appealedfrom.
The appellant has a statutory lien pursuant to Judiciary Law § 475 against thesettlement obtained in the underlying action since it was an "attorney of record" (see Russell v Zaccaria, 8 AD3d255 [2004]). It is undisputed that the appellant filed the summons and complaint andthereafter prosecuted the action to the point of trial (see Rodriguez v City of New York,66 NY2d 825, 827 [1985]; Wahba v S.I.Parmar, 1 AD3d 507, 508 [2003]). "Although portions of the retainer agreement wereleft blank, those portions are not the subject of dispute" (Miszko v Gress, 4 AD3d 575, 579 [2004]), and thus the missinginformation does not bar recovery of a fee. Although the subject retainer agreement failed toidentify the attorney being retained, the plaintiff does not dispute that she retained Maltese or thatthe appellant handled the case through the filing of the note of issue and pretrial preparations.Moreover, the appellant did file a retainer statement, albeit late, with the OCA which wassufficient under the circumstances to preserve its right to recover a share of the fee (see Garrett v New York City Health &Hosps. Corp., 25 AD3d 424 [2006]).
Accordingly, we remit this matter to the Supreme Court, Suffolk County, for a determinationof the proportionate amount of the total attorney's fee to be awarded to the appellant (see Tutarashvili v Barzilay, 39 AD3d851 [2007]; Smerda v City of NewYork, 7 AD3d 511, 512-513 [2004]). Schmidt, J.P., Krausman, Goldstein, Covello andAngiolillo, JJ., concur.