Janes v 2630 Attica Rd., Inc.

[*1] Janes v 2630 Attica Rd., Inc. 2016 NY Slip Op 51907(U) Decided on December 5, 2016 Supreme Court, Wyoming County Griffith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2016
Supreme Court, Wyoming County

Richard C. Janes AND ROSEMARY JANES, Plaintiffs

against

2630 Attica Road, Inc., Individually and d/b/a BLUE DOG SALOON and SHANNON SZALAY, Defendants.



45981



SAMUEL J. CAPIZZI, ESQ.

For Collins & Collins Attorneys, LLC, current counsel to Plaintiffs

VINCENT E. DOYLE III, ESQ.

For Brown Chiari LLP, former counsel to Plaintiffs
Michael F. Griffith, J.

The attorney for the above named plaintiffs having moved for judicial determination and an order apportioning ninety percent of attorneys' fees to Collins & Collins Attorneys, LLC and ten percent to Brown Chiari, LLP, for the work performed on the case to completion, and former counsel to the plaintiffs having opposed that relief, and said motion having duly come on to be heard.

Now, on reading and filing the notice of motion of Samuel J. Capizzi, dated September 19, 2016, supported by the Attorney's Affidavit of Samuel J. Capizzi, Esq., sworn to on September 14, 2016, together with attached exhibits, and accompanying Memorandum of Law and annexed exhibits; and the affidavit of Richard C. Janes and Rosemary Janes, both sworn to on September 14, 2016; and former counsel opposing said motion through their attorney, Vincent E. Doyle III, Esq., including the Affirmation in Opposition, together with the Memorandum of Law in support, and the Affirmation of Donald P. Chiari, Esq., sworn to on November 11, 2016, and all documents filed November 14, 2016; and the Attorney's Reply Affidavit of Samuel J. Capizzi, Esq., in response sworn to on November 14, 2016, and after hearing Samuel J. Capizzi, [*2]Esq. in support of the motion, and Vincent E. Doyle III, Esq., in opposition thereto, and due deliberation having been had, the Court decides as follows.

The Court, as well as counsel, is aware of the facts and underlying accident that occurred on March 8, 2013 that gave rise to the litigation that was ultimately concluded on June 10, 2016. The sole issue before the Court is the apportioning of attorney fees between the firms. The proposed apportionment by the plaintiff was rejected by the Brown Chiari firm as being inequitable, and seek a schedule for discovery and a fee hearing. The Court has reviewed the pleadings and all attachments. It is clear to the Court that any further discovery is unnecessary, as it is not disputed as to the work that was performed, the dates it was performed or who performed the work. Therefore, the Court will deny the request to set any further discovery schedule. The Court has enough information before it to determine the apportionment of fees without the necessity of a fee hearing.

What is not in dispute, is that the appropriate percentage apportionment should be determined based upon the proportionate share of work performed on the whole case by each firm. Brown Chiari had asserted a lien based upon the proportionate share of the work done on the case while it was with their firm. On January 8, 2016, Mr. Capizzi resigned as partner at Brown Chiari. Mr. and Mrs. Janes, the plaintiffs in the underlying litigation, retained Mr. Capizzi to continue handling their case with his new firm. There are five factors to be considered by the Court to determine the apportionment of the attorneys' contribution to the resolution of the case: (1) the time each attorney spent working in the case (2) the nature of the work performed (3) the relative contributions of counsel (4) the quality of service, and (5) the effectiveness in ultimately resolving the matter (see, Lai Ling Cheng v. Mondansky Leasing Co., 73 NY2d 454).

In reviewing these factors; the time spent by each attorney working in the case, the relative contributions of counsel, and the quality of service is not of much import, given the fact Mr. Capizzi was the sole attorney doing the legal work on behalf of his clients for both firms. As stated by Mr. Janes in his Affidavit, "Mr. Capizzi was the only attorney I ever dealt with at Brown Chiari" (Janes aff. Par. 4). The period from April 2013 through January 2016, the Brown Chiari firm filed suit, obtained discovery, conducted a deposition, and generally performed legal work over the course of two and a half years for the purpose of and in anticipation of trial. While certainly some preparation was done at Brown Chiari to get ready for trial, including sending trial subpoenas and meeting with witnesses, a great majority of the actual trial preparation began when Mr. Capizzi started with his new firm. The main reason limited work was done while at Brown Chiari was because no offer was made by defense counsel to settle the case. A trial became necessary. Without a settlement offer, the majority of the work and time expended on the case began after Mr. Capizzi's departure from Brown Chiari.

This Court is acutely aware of the time Mr. Capizzi spent in Court after January 9, 2016 including motions in limine, an Order to Show Cause for return of the file, cross-motions for preclusion, appearances for oral argument of the motions, additional submissions, and finally jury selection and the trial. That does not account for the number of hours spent out of court in preparation for the necessary motions, arguments, witness preparation and time spent in court for trial, as articulated by Mr. Capizzi in his Affidavit. Additionally, there were post trial motions after the verdict, together with conferences with the Court to resolve the issue of damages. After accepting the offer to settle, the lien of Independent Health against Mr. Janes needed to be [*3]resolved as well as Court intervention regarding the release of the settlement check.

The factors for the apportionment of attorney fees enunciated in Lai Ling Cheng, namely, the nature of the work performed and the effectiveness in ultimately resolving the matter, as well as the contributions made by Mr. Capizzi at both firms, necessitates the Court awarding 75% of the fee to Collins & Collins and 25% to Brown Chiari. In awarding this percentage, the Court recognizes the efforts of Mr. Capizzi at both firms, and despite the length of time the file was at the Brown Chiari firm, a greater substantial portion of the work was done at the Collins firm.

NOW, THEREFORE, it is hereby

ORDERED, that the Brown Chiari firm is entitled to recover an amount equal to 25% of the counsel fees held in escrow in connection with the settlement of the plaintiffs' action as their share of said fee.

Dated: December 5, 2016

Warsaw, NY

ENTER

_________________________________

Hon. Michael F. Griffith

Acting Supreme Court Justice