Merritt Green Memorial Chapels, Inc. v. Toomer

—In a shareholder’s derivative action, the defendants Charles Toomer and Merritt Green Memorial Chapels, Inc., appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated July 17, 1998, which granted the motion of Francis X. Tuzio to intervene in the action, and fixed his attorney’s fee in the sum of $7,500.

Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof fixing the attorney’s fee of Francis X. Tuzio in the sum of $7,500; as so modified, the order is affirmed, with costs to the appellants, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the proper amount of an award of an attorney’s fee payable to Francis X. Tuzio.

By order dated June 20, 1997, the Supreme Court specifically directed that applications for attorney’s fees in this proceeding must be made to the court. The Supreme Court did not improvidently exercise its discretion in granting the motion of Francis X. Tuzio to intervene in the action to establish his attorney’s fee. However, we find that Tuzio failed to satisfactorily establish that his claimed attorney’s fee of $7,500 was justified. Thus, the matter should be remitted for a hearing to determine the proper amount of Tuzio’s attorney’s fee. S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.