Chugerman v. Wagner , 346 N.Y.S.2d 462 ( 1973 )

In a negligence action to recover damages for personal and property injuries, plaintiffs and their present attorneys appeal from an order of the Supreme Court, Kings County, entered December 8, 1972, which, upon motion of plaintiffs’ previous attorneys, fixed the fee of the latter at 12% of " any gross amount received by settlement, in or out of Court, or by judgment, satisfaction or other form ” and granted them a lien therefor. Order reversed, on the law, with $20 costs and disbursements, and motion remitted to Special Term for further proceedings not inconsistent herewith. In our opinion, while the imposition of a lien was proper, any percentage fee at this ineompleted stage of the action is premature and should be deferred until the conclusion of the entire case (Finkelstein v. Gauldmiell Wingate Go., 29 A D 2d 943). However, since the former attorneys have the right to elect whether they will accept their compensation on the basis of a presently fixed dollar amount quantum meruit or whether, still on the basis of quantum meruit, they will accept a contingent percentage instead (Beubenbaum v. 5. & H. Express, 6 A D 2d 47), and since an election by them is not reflected in the record before us, the matter should be remitted to Special Term for such further proceedings as will require the exercise of such an election and permit a determination not inconsistent herewith. Martuscello, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.