Albunio v City of New York

Albunio v City of New York 2012 NY Slip Op 09187 Decided on December 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2012
Mazzarelli, J.P., DeGrasse, Manzanet-Daniels, Clark, JJ.
8923N 113037/03

[*1]Captain Lori Albunio, et al., Plaintiffs-Appellants-Respondents,

v

The City of New York, et al., Defendants, Mary D. Dorman, Nonparty Respondent-Appellant.




Leon Friedman, New York, for appellants-respondents.
Paul O'Dwyer, New York, for appellant.

Order, Supreme Court, New York County (Martin Shulman, J.), entered May 1, 2012, which granted nonparty respondent's motion to determine her fees to the extent of including her statutory attorneys' fee award for trial level work in the total recovery for purposes of calculating her contingency fee and excluding from consideration of her fees for trial level work the statutory attorneys' fee awards for appellate level work, and denied the motion to the extent of requiring nonparty respondent to credit nonrefundable retainers totaling $15,000 against her contingency fee, unanimously affirmed, without costs.

The broad terms of the contingency fee agreement providing for a fee of 33 ⅓ percent of "the sum recovered, whether recovered by suit, settlement or otherwise," unambiguously require that the award of attorneys' fees be included in "the sum recovered." The cases cited by plaintiffs involve retainer agreements with narrower provisions (see e.g. Bates v Kuguenko, 100 F3d 961, 1996 WL 654449, *1, 1996 US App LEXIS 29385, *2 [9th Cir 1996] [contingency fee to be computed as percentage of "damages recovered"]). Nor does this State follow the rule found in certain federal statutes that contingency counsel must take the larger of the contingency fee or the statutory fee (see e.g. id., 1996 WL 654449, *1, 1996 US App LEXIS 29385, *3).

The parties' wholly separate retainer agreements for the appeals to this Court and the Court of Appeals expressly set the statutory fees for the appeals apart from the statutory and contingency fees for the trial level work. [*2]

As the retainer letters are ambiguous as to the treatment of
the retainer fees, they must be construed in favor of plaintiffs (see Jacobson v Sassower, 66 NY2d 991, 993 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2012

CLERK