Grasso v. Kubis , 604 N.Y.S.2d 396 ( 1993 )

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: This appeal involves a dispute between plaintiff’s former and new attorneys over the division of a potential attorney’s fee. Plaintiff’s new attorney moved, on plaintiff’s behalf, for an order to change the attorney of record in the underlying wrongful death action. Plaintiff’s former attorney did not oppose that motion but cross-moved for an order fixing his fee at one half of any attorney’s fee realized. In support of his motion, he annexed a copy of a letter dated December 22, 1992, addressed to him from his successor, which stated that, "in the event that there is any fee recovered on this case, I fully intend to honor my commitment to you of one-half of any fee realized”. Supreme Court granted plaintiffs motion but denied the cross motion of plaintiffs former attorney.

It is well established that an agreement between attorneys regarding the division of a legal fee is valid and enforceable in accordance with its terms, "provided that the attorney who seeks his share of the fee contributed some work, labor or service toward the earning of the fee” (Oberman v Reilly, 66 AD2d 686, 687, lv dismissed 48 NY2d 602, 654; see, Gore v Kressner, 157 AD2d 575, lv denied 76 NY2d 701; Proner, P. C. v Julien & Schlesinger, 134 AD2d 182, 184-185; Matter of Fuller, 122 AD2d 792).

We conclude that the parties, by virtue of their agreement, were required to divide equally the attorney’s fee realized in the underlying action. We reject any assertion that the December 22, 1992 letter constituted merely an offer that was subsequently revoked. Furthermore, it is undisputed that plaintiff’s former attorney performed work, labor and services in the underlying action. Therefore, we modify the order by granting the cross motion. (Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Attorney’s Fees.) Present —Pine, J. P., Lawton, Fallon, Doerr and Davis, JJ.