DECISION AND ORDER On October 21, 2021, petitioners, the Law Office of Thomas F. Liotti, LLC and Joseph F. DeFelice, Esq., claimant’s former attorneys, electronically filed with the New York State Courts Electronic Filing system (NYSCEF) a proposed order to show cause along with affirmations in support accompanied by Exhibits A-X (NYSCEF Doc. Nos. 81-104). By prior Order, Exhibits Q-V (NYSCEF Doc. Nos. 97-102) were sealed pursuant to 22 NYCRR 216.1 (a). Respondent, Elefterakis, Elefterakis & Panek, claimant’s current attorneys, filed an Affirmation in Opposition accompanied by Exhibits 1-8 (NYSCEF Doc. Nos. 112-120). Petitioners electronically filed a Reply with affirmations in support accompanied by Exhibits and correspondence A-K (NYSCEF Doc. Nos. 123-145). The underlying case in this matter concerned a claim for unjust conviction and imprisonment pursuant to Court of Claims Act §8-b. A stipulation of settlement and discontinuance was filed by respondent in this case on August 13, 2021. Petitioners filed an order to show cause seeking half of the $600,000 in legal fees paid to respondent following the settlement of this matter. Petitioners were retained by Josiah Galloway on September 13, 2018. The retainer agreement provided for a contingency legal fee of 33 and 1/3 percent of the settlement amount and was duly filed with the Office of Court Administration and assigned a retainer number. Petitioners represented Mr. Galloway until September 11, 2019 when they received a consent to change attorneys and substitution of counsel from Mr. Galloway naming respondent as new counsel. Petitioners legal services included obtaining files and transcripts of the criminal proceeding; securing a loan for claimant; filing a verified claim; responding to a motion to dismiss and preparing a cross-motion for summary judgment in response to the motion to dismiss. Additionally, petitioners prepared and filed a federal civil rights claim as well as appeared at a 50-h hearing conducted by the County of Nassau. Petitioner, Thomas Liotti, contends that his ledger shows 52 hours but that he represents he spent an additional 50 hours which he did not account for because this was a contingency case. Petitioner, Joseph DeFelice, also contends that because this was a contingency case, his records are reflective of the totality of the work performed. With respect to the summary judgment motion, this Court rendered a decision on September 19, 2019. While true, that partial summary judgment was issued to claimant, it is important to note that the Court found that, “[c]laimant failed to establish any of the criteria required by Court of Claims Act §8-b (3) by documentary evidence in his Verified Claim. However it is the existence of the fact as opposed to the documentation of the fact that is a statutory requirement conditioning suit (Harris v. State of New York, 38 AD3d 144 [2d Dept 2007]).” Additionally, this Court found that “[i]mperfect compliance with the preliminary proof requirements of Court of Claims Act §8-b (3) is curable by amendment (Turner v. State of New York, 50 AD3d 890 [2d Dept 2008]; Harris v. State of New York, 38 AD3d 144 [2d Dept 2007]). Thus, the Court found that claimant’s submissions in opposition to defendant’s motion satisfied the documentary proof requirements of Court of Claims Act §8-b (3). Additionally, the Court did find that claimant established by clear and convincing evidence that he was convicted of multiple felonies; served a portion of his sentence; that his judgment of conviction was vacated pursuant to CPL 440.10 (1) (g) and that his indictment was dismissed. Accordingly, the Court found that claimant was entitled to partial summary judgment as to these two elements of his claim based upon the documentary evidence presented. However, the Court denied summary judgment under Court of Claims Act §8-b (5) (c), finding that claimant failed to establish by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instrument and that he did not by his own conduct cause or bring about his conviction under Court of Claims Act §8-b (5) (d). Lastly, the Court directed claimant to attach to his Amended Verified Claim a copy of Exhibits from his cross motion as Exhibits to his Amended Verified Claim prior to filing the Amended Verified Claim to cure the preliminary proof defects. Respondent provided legal assistance for almost two years, working approximately 1,400 hours on behalf of their client. Their first action was filing the Amended Verified Claim. Thereafter, respondent appeared at numerous Court conferences and conducted all of the discovery including over 24 depositions. Additionally, respondent retained and worked with experts which they contend was pivotal in negotiating a settlement offer of 1.8 million dollars. The settlement was so-ordered by this Court on August 4, 2021. On September 20, 2019, petitioners filed a Lien of Outgoing Attorney. On September 24, 2021, respondent informed this Court that it had reimbursed petitioners for out of pocket expenses and attempted to settle the lien. Petitioners accepted the out of pocket expenses reimbursement but rejected the offer of $30,000 to settle the lien. To the extent that incoming counsel thereafter accused the petitioners of violating the Rules of Professional Conduct, those allegations pertained solely to the petitioners’ actions after they had been discharged as claimant’s attorneys, and are not a bar to the petitioners’ entitlement to retaining and charging liens for the legal work performed prior to the discharge (Maher v. Quality Bus Serv., LLC, 144 AD3d 990 [2d Dept 2016] [citations omitted]). Additionally, respondent failed to make a prima facie showing that petitioners were discharged for cause. The letter discharging petitioners did not state that the dismissal was for cause. Respondent’s argument that claimant would have been justified in discharging petitioners for cause is insufficient to establish cause (see, Chadbourne & Parke, LLP v. AB Recur Finans, 18 AD3d 222, 223 [2d Dept 2005]). In the case of a fee dispute between outgoing and incoming attorneys, the outgoing attorney has the right to elect either immediate compensation based on quantum meruit for the reasonable value of the services rendered, or a contingent percentage fee to be determined at the conclusion of the litigation. Where no election has been made, as in this matter, there is a presumption that the attorney receive a fee based on a percentage of the recovery (Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655 [1993]). Apportionment of an attorney’s fee is controlled by the circumstances and equities of each case and an award of a reasonable attorney’s fee is within the sound discretion of the Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed (Rodriguez v. Ryder Truck Rental, Inc., 171 AD3d 963, 964 [2d Dept 2019] [internal citations omitted]). Based upon the nature of the action, the time and labor spent by each attorney, the actual work performed and the effectiveness of the legal work performed, the Court finds that petitioners are entitled to 7.5 percent ($45,000) of the attorneys fees recoverable in the action and respondent, is entitled to 92.5 percent of the attorneys fees recoverable in the action. Dated: April 11, 2022
