| McCarthy v Roberts Roofing & Siding Co., Inc. |
| 2007 NY Slip Op 08612 [45 AD3d 1375] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| David A. McCarthy, Plaintiff, v Roberts Roofing and SidingCompany, Inc. (Improperly Sued as Jack D. Roberts, Doing Business as Roberts Roofing),Defendant. Brown Chiari, LLP, Appellant; A. Angelo DiMillo,Respondent. |
—[*1] Muscato, DiMillo & Vona, L.L.P., Lockport (George V.C. Muscato of counsel), forrespondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.),entered October 12, 2006. The order granted the motion of respondent A. Angelo DiMillo toenforce his attorney's lien upon the settlement proceeds in this action and awarded him 35% ofthe net contingent attorney's fee.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Brown Chiari, LLP (Brown Chiari), the law firm representing plaintiff whenthis personal injury action was settled, appeals from an order granting the motion of A. AngeloDiMillo, plaintiff's outgoing attorney, to enforce his attorney's lien upon the settlement proceedsreceived in this action and awarding him 35% of the net contingent attorney's fee. Under thecircumstances of this case, where the fee dispute is solely between the incoming and outgoingattorneys, DiMillo is entitled to elect the method of computing his fee, and the record establishesthat he has elected to receive a contingent percentage fee based upon the proportionate share ofthe work he performed on the whole case (see Matter of Cohen v Grainger, Tesoriero &Bell, 81 NY2d 655, 658 [1993]; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d454, 458 [1989]; Smerda v City of NewYork, 7 AD3d 511, 512 [2004]).
Contrary to the contention of Brown Chiari, Supreme Court properly considered the amountof time that DiMillo and Brown Chiari spent on the case, the work performed, and the amount ofmoney recovered in fixing the respective percentages to be awarded to them (see Lai LingCheng, 73 NY2d at 458; Abenante vStar Gas Corp., 33 AD3d 638 [2006]; Brown v Governele, 29 AD3d 617 [2006]). Both DiMillo andBrown Chiari performed significant work on the case resulting in the settlement, and weconclude that the court did not abuse its discretion in awarding 35% of the [*2]net contingent attorney's fee to DiMillo (see generally Matter of Wingate, Russotti& Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370-371 [2007]).
The further contention of Brown Chiari that DiMillo should be precluded from recovering anattorney's fee because he engaged in unethical conduct is raised for the first time in its reply briefand thus is not properly before us (seeTurner v Canale, 15 AD3d 960 [2005], lv denied 5 NY3d 702 [2005];Greene v Xerox Corp., 244 AD2d 877, 878 [1997], lv denied 91 NY2d 809[1998]). Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.