Collum v. New York City Health & Hospitals Corp. , 737 N.Y.S.2d 863 ( 2002 )

—In an action to recover damages for medical malpractice, the appeal and cross appeal are from an order of the Supreme Court, Queens County (LeVine, J.), dated April 11, 2001, which granted the motion of the plaintiffs’ present attorneys, Shayne, Dachs, Stanisci, Corker & Sauer, and Jules Epstein, and the cross motion of the plaintiffs’ former attorneys, Louis Venezia and Gusmorino & Marx, to the extent of apportioning attorneys’ fees between them in the amount of 51% to the present attorneys, and 49% to the former attorneys.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing on the issue of the apportionment of attorneys’ fees.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in apportioning attorneys’ fees between the plaintiffs’ former attorneys and their present attorneys based solely upon the affidavits submitted by counsel, and without the benefit of any other supporting evidence. Accordingly, the matter is remitted to the Supreme Court, Queens County, for a hearing to determine, based upon testimony and documentary evidence, the extent of the services rendered by both the former counsel and present counsel, and the value of those services.

In light of our determination, we decline to reach the parties’ remaining contentions. Ritter, J.P., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.