We reported on this case, based on the hews article. Here is Siagha v. David Katz & Associates LLP, 603927/05 :
"This is a contract action to recover alleged damages concerning legal fees and expenses allegedly not included in the retainer agreement of plaintiff Omar Siagha ("plaintiff").
Plaintiff moves for an order (1) awarding partial summary judgment pursuant to CPLR 3212 on his claim for disgorgement of all fees as against defendant David Katz ("Katz") and Katz & Associates ("K&A"), (2) disgorging defendants of such fees in excess of one-third of the final amount collected from the underlying defendant and/or its carrier as a result of the judgment obtained in Siagha v. Salant-Jerome, Inc., or (3) awarding partial summary judgment against Keith LePack ("LePack") in the amount of not less than $100,000.
Defendants Katz, K&A and LePack (collectively "defendants") oppose the motion, and cross move for an order dismissing the action pursuant to CPLR 3211(a)(5) and (7), or in the alternative, awarding summary judgment pursuant to CPLR 3212 in favor of Katz, K&A and LePack., and imposing sanctions and costs against plaintiff pursuant to 22 NYCRR 130-1.1, et seq., for plaintiff’s frivolous action in keeping LePack named as a defendant.
On or about August 1998, after the damages verdict, Saint Jerome’s insurance companies denied coverage and refused to satisfy the judgment. Katz & Rosenblatt commenced a declaratory judgment action. This action was dismissed, Katz & Rosenblatt appealed and the Appellate Division First Department reversed and granted plaintiff summary judgment. The insurance companies sought leave to appeal to the Court of Appeals, and that motion was denied.
Plaintiff’s judgment was for $1,680,093.08 and K&A received a total fee of $870,057.60. This was purportedly equal to one-third of the recovery less purported expenses and minus legal fees for the appeal of the summary judgment, the appeal on the merits and the declaratory judgment action. The legal fees charged to plaintiff for the appellate and collateral matters was $182,100.00. Plaintiff recovered approximately 52 percent of the gross settlement.
A client retaining an attorney on a contingent basis, in the absence of clear and express language to the contrary, contemplates that the percentage fixed is to constitute payment for whatever services may be necessary to obtain collection of any judgment which may be recovered, whether the services be in connection with an appeal taken from the judgment or in connection with efforts to collect the judgment, or both (Ellis v. Mitchell, 193 Misc. 956, 85 N.Y.S.2d 398 [Sup. Ct. New York County 1948] citing Larkin v. Frazier, 224 N.Y. 421, 121 N.E. 105). New York law is generally hostile to midstream efforts to increase contingency fee percentages (see, e.g., 22 NYCRR 603.7[e][4] [limiting opportunities for attorneys to increase contingent fee percentages in certain types of actions]; Belzer v. Bollea, 150 Misc2d 925, 928-29 [NY Sup Ct 1990] [rejecting contingent fee increases that did not comport with 22 NYCRR 603.7(e)(4) regardless of "whether the client in fact agreed or disagreed to additional fees"]). Thus, based on a plain reading of the retainer agreement, there was no agreement for plaintiff to compensate any attorneys, including Katz and K&A separate fees related to services performed on appeal or other collateral matters beyond the 33 1/3 amount as specified in the retainer agreement."