Corsi v. Ott

Order unanimously reversed, without costs, and matter remitted to Supreme Court, Erie County, for a hearing in accordance with the following memorandum: An attorney was retained on a contingent fee basis by plaintiffs. Pursuant to CPLR 321 (subd. [b]), at their instance he was replaced as counsel, and in the order appealed from payment of his fee was made contingent upon plaintiffs’ ultimate success in the pending lawsuit. The displaced attorney chose quantum meruit as the measure of his relief, and upon the argument and papers the court fixed the amount to be paid to him. Under the circumstances here a quantum meruit award for legal services rendered cannot be made without a hearing to determine the nature and extent of the attorney’s services, the amount of time involved, the value of the services rendered, the amount of services still to be performed, the likelihood of plaintiff’s recovery and, if so, the amount thereof (Bradbury v. Farber, 31 A D 2d 824). Also under these circumstances payment of such award, when fixed, should be deferred until the termination of the action and should be made subject to reconsideration in light of the facts shown at that time (Friedman v. Gordon, 260 App. Div. 1023, affd. 285 N. Y. 630). The award should be made as a charging lien upon any recovery had in the action. (Appeal from order of Erie Special Term denying immediate payment of attorney’s fee.) Present — Marsh, P. J., Witmer, Moule, Cardamone and Simons, JJ.