Vance v. Northern Electric Co. , 689 N.Y.S.2d 584 ( 1999 )

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in its apportionment of the legal fees awarded to respondent, Dixon & Hamilton, L. L. P. (Dixon), the firm substituted for petitioner, DeMarie & Schoenborn, P. C. (DeMarie), as counsel for plaintiff. The partners of Dixon were formerly employed as associates by DeMarie. DeMarie and its former employees entered into an agreement providing that an associate who brought a client to the firm would receive 60% of the fee charged to that client and the firm would receive 40%. The agreement did not specify a fee arrangement in the event that the associate’s employment relationship was terminated, and the court erred in constructing such an agreement (see, McLean v Michaelowsky, 117 Mise 2d 699, 701). The court erred in determining that DeMarie is entitled to only 40% of the fee because the fee at issue was earned both during the employment relationship and after its termination. Therefore, it is not subject to the agreement (cf, Grasso v Kubis, 198 AD2d 811). The court properly calculated that 62.2% of the fee was earned during the employment relationship with DeMarie. Thus, DeMarie is entitled to 62.2% of the total fees earned (see, Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 458-459). We modify the order accordingly by providing that the award to DeMarie is $15,333.99.

We do not consider the further contention of DeMarie that the court erred in denying its application for a hearing. DeMarie failed to take a timely appeal from the order denying that application. (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Counsel Fees.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Callahan, JJ.