Gair, Gair & Conason v. Stier

Order of the Supreme Court, New York County (Alfred Ascione, J.), entered March 29, 1985, which, inter alia, granted plaintiff’s motion for summary judgment on its first cause of action, dismissed all of defendants’ counterclaims, and denied defendants’ cross motion for summary judgment, is affirmed, with costs. The facts are set forth in the dissent. We do not agree that the stipulation is ambiguous as to whether the cost of appellate counsel was intended to be absorbed proportionately by outgoing counsel under the rubric of "legal costs”. As stated in Matter of O’Brien (28 AD2d 1040): "The abundantly clear and long-recognized distinction between costs and counsel fees requires no discussion.” That a blurring of this distinction is warranted here because the word "costs” was used in a fee-sharing agreement to describe a continuing obligation of outgoing counsel, and not, as is usually the case, to describe the obligation of a losing party to pay the victorious party certain statutorily fixed amounts upon entry of judgment (CPLR arts 81, 82), is an untenable suggestion insufficient to raise a triable issue of fact. At the time they entered into the stipulation, the parties were facing each other as incoming and outgoing attorneys. The underlying personal injury action 557 was questionable on liability and strong on damages. Defendants acknowledge that an appeal was to be anticipated, and that, as incoming attorneys working under a preexisting contingent fee retainer, they were undertaking to provide all services necessary to collect the judgment, including appellate services, at no additional cost to the client. Once substituted, it was defendants who were to be solely responsible for furnishing these services, except as might have otherwise been provided in the stipulation. Against this background, we cannot accept that the parties to the stipulation were mindful enough to specify the costs of "investigation”, "prosecution”, and "trial” as deductible items, and at the same time heedless enough to omit any reference to the cost of an appeal. Concur —Carro, Kassal, Ellerin and Wallach, JJ.