A Provident Exercise Of Discretion

An effort by a law firm to collect a contingent fee was rejected by the New York Appellate Division for the First Judicial Department

The motion court’s award to Napoli, plaintiff’s prior counsel, of $300 for the costs incurred in connection with its preliminary investigation of the matter, rather than 40% of the net contingency fee that Napoli sought, was a provident exercise of discretion (see Han Soo Lee v Riverhead Bay Motors, 110 AD3d 436 [1st Dept 2013]; Hinds v Kilgallen, 83 AD3d 781, 782 [2d Dept 2011]). The court providently apportioned the legal fee to reflect that current counsel, Scott A. Wolinetz, P.C., not Napoli, commenced the lawsuit that resulted in the settlement of plaintiff’s workers’ compensation action. Napoli only preliminarily investigated the matter over approximately three months, including obtaining medical records from only one of plaintiff’s several medical providers and submitting certain no-fault and workers’ compensation applications and medical authorizations. By contrast, Wolinetz demonstrated that it commenced the underlying action, conducted discovery and depositions, engaged in motion practice, and negotiated the settlement that resulted in an award to plaintiff.

We have considered Napoli’s remaining arguments and find them unavailing.