DeSalvatore v. Lavigne

Order unanimously modified [514] on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term properly permitted petitioners to withdraw as plaintiff’s counsel (see, Sansiviero v Sanders, 117 AD2d 794, 795, lv dismissed 68 NY2d 805) and properly granted petitioners a charging lien against moneys plaintiff may recover due to petitioners’ efforts in the litigation (see, Judiciary Law § 475; Matter of Heinsheimer, 214 NY 361, 364-365). Special Term erred, however, in prematurely setting the amount of the lien at one third of any settlement or verdict up to $18,000, which is the amount of the settlement petitioners negotiated but plaintiff refused to accept. The amount of a charging lien should be determined on a quantum meruit basis (see, Matter of Montgomery, 272 NY 323, 326; Matter of Regan v Marco M. Frisone, Inc., 54 AD2d 1125) and subsequent to any recovery at trial or by settlement in the underlying action (see, Matter of Shaad, 59 AD2d 1061, 1062; Levitas v Levitas, 96 Misc 2d 929, 933). (Appeal from order of Supreme Court, Oneida County, Lynch, J. — withdrawal of counsel.) Present — Dillon, P. J., Doerr, Green, Pine and Balio, JJ.