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Improper repair of a tire causes van accident


On August 24, 2002 nonparty driver was driving a van with eight passengers, one of whom was an adult and seven of whom were children. While driving on a divided highway in Pennsylvania, the driver lost control of the van when the right rear tire blew out. During the resulting crash, the van barrel-rolled across the median and became airborne before landing in the lanes of oncoming traffic. All of the children were ejected from the van and sustained varying degrees of injury. The adult passenger, who remained in the vehicle, died. The appellant lawyer was retained to litigate an action on behalf of the estate and the husband of the deceased, and on behalf of these five infant passengers.

Appellant based her action upon conclusion that the tire at issue had been improperly repaired and was not the proper size for the van. Second, she concluded that the van had a faulty liftgate latch, which allowed the liftgate to open during the car accident. Consequently, she named the manufacturer of the van as a defendant.

Appellant lawyer requested an award of an attorney’s fee in a sum consistent with her retainer agreement, representing one third of the net settlement from the manufacturer of the van and 25% of the net settlement from the driver’s insurer. The Supreme Court approved so much of the proposed infant’s compromise order as concerned the amounts recovered by the infant plaintiffs, but awarded appellant lawyer an attorney’s fee in a sum representing approximately 25% of the aggregate net settlement. The lawyer appealed.

In affirming the infant’s compromise order, the court said that Judiciary Law § 474 expressly exempts, from the general rule, a contingency fee agreement between an attorney and a guardian of an infant, and provides that such agreements are always “subject to the power of the court, as hereinafter provided, to fix the amount of such compensation.” Pursuant to the statute, the court “shall proceed summarily to determine the value of the services of said attorney, taking such proof from either the attorney or the guardian by affidavit, reference or the examination of witnesses before the said court, judge or surrogate, as may seem to be necessary and proper, and shall thereupon make an order determining the suitable compensation for the attorney for his services therein”. Consequently, in rendering a determination as to “suitable compensation” within the meaning of Judiciary Law § 474, the court must determine the reasonable value of the legal services provided in light of all of the facts and circumstances, with consideration given to any agreement as to compensation, and award an amount consistent with such a determination and with the court’s duty to ensure fair and adequate compensation for the infant. Here, applying this standard, we find that the attorney’s fee awarded by the Supreme Court is “suitable compensation” within the meaning of Judiciary Law § 474.

Consequently, while the amount of the recovery was commensurate with the number of injured parties, the time and effort needed to investigate and prosecute the case was not. Rather, although some factors varied as between the injured parties, such as the nature and extent of their injuries, the core inquiries into causation and liability required no more effort than that necessary to litigate the action on behalf of only one injured party. Moreover, there were more injured parties to be compensated from the same limited pool of funds. Finally, the court note that the requested attorney’s fee of one third of the recovery from the manufacturer van represents the upper limit, in general, of what is deemed reasonable under the rules of the Court (see 22 NYCRR 691.20 [e]; cf. 22 NYCRR 603.7 [e]). Nassau and Westchester have similar laws.

In light of all of these facts and circumstances, and weighing the competing interests, the court find the amount of the attorney’s fee awarded-approximately 25% of the net aggregate settlement-to be suitable compensation.

Stephen Bilkis and Associates can provide you with New York Injury Lawyers to provide you legal advise at the same time ensuring you are properly compensated from any injury you have suffered. It has offices within New York Metropolitan area, including Corona, New York.

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