This Decision will address the issue of the division of attorney's fees regarding the resolution of the above captioned complex products liability action.

A Hearing was conducted in accordance with §475 of the Judiciary Law so as to enable the Court to calculate the measure of attorney's fees, if any, to which McMahon Kublick is entitled pursuant to its initial representation of Plaintiffs from February 2015 through September 2015 when Smith Sovik took over the representation of Plaintiffs. During the course of this proceeding, the Court has had the unique opportunity to hear and evaluate the testimony of the witnesses and attorneys who testified, and assess and measure the quality of the services provided by the respective law firms. In addition to this unique opportunity, the Court has been [*2]the IAS Justice presiding over the underlying action since its inception.

A brief scenario of this matter is as follows: On February 12, 2015, Plaintiff William Tarolli was employed by Third Party Defendant Anheuser-Busch, Inc. During the course of his employment, he was struck by an unmanned automatic robotic forklift resulting in numerous injuries including the partial amputation of his left leg. On the recommendation of his union representative, Plaintiff retained the services of McMahon Kublick to represent him concerning a worker's compensation claim. The attorney handling the compensation claim recommended that an attorney for the firm represent him concerning a possible products liability claim regarding the robotic mechanism that caused his injury. Upon this recommendation, McMahon Kublick was retained to pursue that claim.

McMahon Kublick commenced this action against the manufacturer, Jervis B. Webb Company on May 15, 2015. Subsequently, McMahon Kublick was replaced by Smith Sovik, and Attorney James W. Cunningham successfully negotiated a comprehensive settlement including $3.5 million dollars for personal injuries as well as a waiver of the $170,000 compensation lien and the funding of a $165,000 Medicare set aside. The net contingent attorney fee after $44,123.10 in disbursements and $6,000 paid to McMahon Kublick for its compensation attorney fee was $1,145,958.80.

McMahon Kublick maintains that based on the work and services performed on behalf of Plaintiffs, it is entitled to no less than 25% of the attorney's fees recovered pursuant to the settlement of the action by Smith Sovik. In opposition, Smith Sovik contends that McMahon Kublick was discharged for cause and is therefore not entitled to any portion of the attorney's fees. In the alternative, if the Court does not find a discharge for cause, McMahon Kublick is entitled to less than 10% of the attorney's fees.

The testimony of both Mr. and Mrs. Tarolli indicated that they were not content with the representation provided by McMahon Kublick concerning the personal injury/product liability aspect of their claims. However, there does not appear to have been any complaint regarding the firm's representation concerning the workers compensation claim. The Plaintiffs remained with McMahon Kublick on the workers compensation claim with encouragement by Attorney Cunningham.

Based on the record before the Court, it appears that the Tarollis' main issue on the personal injury/product liability claim was a lack of contact and updates as to the status by Attorney Anthony Martoccia. While Attorney Martoccia may not have provided the Plaintiffs with the detailed status of this claim, the records reflect that counsel did undertake diligent efforts to preserve the subject machine and IT information relevant to its operation, and commenced the lawsuit in a timely and expeditious manner. Although Plaintiffs testified that they intended to seek substitute counsel when advised that Attorney Martoccia was leaving McMahon Kublick, and ultimately retained Smith Sovik, it has not been shown nor can it be concluded that McMahon Kublick was discharged for cause. Therefore, the Court finds that McMahon Kublick was not discharged for cause.

As such, the Court will proceed to determine the percentage of the contingent fee to which McMahon Kublick is entitled on a quantum meruit basis.

In making this determination, the Court must consider the five factors enumerated by the Court of Appeals in Lai Ling Cheng v. Modansky Leaseing Co., Inc., 73 NY2d 454 (1989). [*3]Those factors are: (1) the time spent by each firm on the matter; (2) the nature of the work performed; (3) the contributions of counsel; (4) the quality of service; and (5) the effectiveness in achieving the ultimate resolution.

1. Time Spent by Each Firm:

McMahon Kublick represented Plaintiffs from February 2015 through September 2015. Thereafter, Plaintiffs were represented by Smith Sovik through November 2018 when the matter was finally settled. It is quite obvious that the attorney hours devoted to this matter by Smith Sovik overshadow those of McMahon Kublick. (796[Ex. P-3] v 107 [Ex. D-4]). Despite this overshadowing and the fact that McMahon Kublick's hours were not contemporaneously recorded, the Court has not given this disparity great weight in reaching its ultimate conclusion. Rather, concentration has been directed toward the services performed by McMahon Kublick during its seven month representation of the Plaintiffs.

2. Nature of Work Performed:

There is no question that McMahan Kublick performed significant work to institute this litigation. Attorney Martoccia moved immediately for pre-action discovery to preserve evidence. Subsequently, he ascertained the proper Defendant, prepared and filed the Summons and Complaint to initiate the action, secured the preservation of the software utilized in the operation of the robotic forklift at the time of the incident, and examined the forklift with a mechanical engineer.

While these actions were sufficient to preserve evidence and commence the action, based on the testimony at the Hearing, it appears that certain actions were not taken by McMahon Kublick in its seven month representtion of Plainitffs. No one from McMahon Kublick spoke with Mr. Tarolli to gather his knowledge and perspective as to how this robotic forklift operated. No one from McMahon Kublick concentrated on Plaintiffs' damages in that there were no conversations with his health care providers or the chronicling of his post injury daily activities. The focus appeared to be more on the issues of liability rather than damages.

In that regard, it must be noted that McMahon Kublick did not respond to discovery demands served by the Defendant nor did it serve any Interrogatories on Defendant. Also, while an inspection of the robotic forklift was conducted, it was not conducted until six months post injury and said inspection was not operationally conducted. Moreover, the mechanical expert utilized by McMahon Kublick was, by his own subsequent admission, not qualified or versed in the software applications of this robotic machine so as to render a meaningful analysis and report as to its potential defects.

In addition, while laudable, it appears that a substantial part of the reconstructed hours spent on this matter by McMahon Kublick were devoted to the securing of disability benefits for Mr. Tarolli. However, this time and the nature of this service cannot be attributable to the prosecution of this action.

On the other hand, upon being substituted in as Plaintiffs' counsel, Smith Sovik, through the representation by Attorney Cunningham, immediately began an active prosecution of Plaintiffs' claim as to both the liability and damages aspects. Electronic software, vocational, and economic experts were consulted and retained. A video detailing Mr. Tarolli's daily activities was commissioned. Numerous conferences were had with Mr. Tarolli to ascertain his knowledge of the operation of the robotic forklift and how any of his actions did not cause or contribute to [*4]the accident or his injuries. Interviews with co-workers and non-party witnesses were also conducted.

Discovery demands were served on Defendant and Third Party Defendant. Numerous motions were made to compel Defendant and Third Party Defendant to produce extensive documentation including, inter alia, design plans, blueprints, inspection and accident reports. All of these motions were opposed by Defendant and Third Party Defendant. These motions, coupled with numerous chamber conferences with this Court, resulted in the production of thousands of documents that were reviewed and analyzed by Smith Sovik and its expert.

Attorney Cunningham worked at great length to prepare Mr. And Mrs. Tarolli for their depositions and mediation sessions and conducted detailed depositions of Defendant and Third Party Defendant's experts and representatives. Through the efforts of Attorney Cunningham, and other members of the firm, a comprehensive settlement was achieved which included $3.5 million dollars for Plaintiffs, a waiver of the worker's compensation lien and the funding of a structured Medicare set aside fund.

III. Contributions of Counsel

During its seven month representation of Plaintiffs, McMahon Kublick made contributions to the prosecution of this products liability claim. As stated, Attorney Martoccia brought a timely Order to Show Cause for pre-action discovery and preserved evidence. He also expeditiously commenced the action. In addition, he hired an expert to examine the robotic forklift, albeit a mechanical rather than a software engineer, that performed a photographic inspection some six months post accident.

These actions by McMahon Kublick when viewed in the overall complexity of this matter are best described as basic, preliminary and superficial. McMahon Kublick's actions in securing the disability insurance benefits were not a contributing factor to the prosecution of Plaintiffs' claim.

In contrast, the contributions made by Smith Sovik during its three plus years representing Plaintiffs were significant and substantial. The Court will not reiterate these actions, most of which have been set forth in section II above, and are reflected in the record, but they can best be described as extensive, detailed and comprehensive.

IV. Quality of Service

During the course of this Hearing Attorney Kublick described McMahon Kublick and Smith Sovik as good law firms that performed good work for the Tarollis. The Court agrees with this assessment. However, from the outset of its substitution, it is apparent that Smith Sovik had a better handle on how and to what degree the prosecution of this claim needed to proceed. Client confidence needed to be solidified, which Attorney Cunningham accomplished through extensive contact with Mr. and Mrs. Tarolli. A message needed to be delivered to opposing counsel that the action would be vigorously pursued. Attorney Cunningham successfully delivered this message by answering the discovery/preclusion motions unattended to by McMahon Kublick, and serving discovery demands and motions to compel production of materials on behalf of Plaintiffs.

Attention was directed to the liability portion of the Plaintiffs' claim through the securing of the proper expert to inspect the robotic forklift, the securing of the specific software that controlled the machine at the time of the accident, and the interviewing of non-party witnesses to [*5]challenge the Defendant's claim that Mr. Tarolli's own actions were the cause of his injuries.

Attention was further directed by Smith Sovik to the damages portion of Plaintiffs' claim by, inter alia, the commission of the "day in the life" video of Mr. Tarolli, the retaining of economic and vocational rehabilitation experts, the preparation of the Tarollis for their depositions and preparation for the depositions of Defendants' experts, among other things.

Extensive preparation was also undertaken for the mediation that generated the first indication by Defendant and Third Party Defendant of a willingness to make a settlement offer. The global settlement was achieved by Smith Sovik through the negotiating skills of Attorney Cunningham.

V. Effectiveness in Achieving the Ultimate Resolution

Unfortunately, McMahon Kublick's actions had little to do with achieving the ultimate resolution of Plaintiffs' case. The preliminary actions of initiating pre-action discovery and the filing of the Summons and Complaint were effective in commencing the matter. However, when Mr. Martoccia left McMahon Kublick, no competent expert had been retained to properly inspect the robotic forklift, a motion was pending to compel responses to Defendant's discovery demands or dismiss the action, and minimal contact had been had with the Tarollis regarding the damages portion of the claim.

There is no need to reiterate the vigorous manner with which Smith Sovik, through the efforts of Attorney Cunningham, pursued this matter on behalf of Plaintiffs. A thorough description has hereinabove been set forth and is documented in the record of this Hearing.

Nonetheless, it must be acknowledged that despite more than three years of hard fought opposition and no offer of settlement, Attorney Cunningham persevered undaunted and thoroughly prepared Plaintiffs' case for mediation. This perseverance resulted in a settlement of $3.5 million for Plaintiffs as well as the waiver of the compensation lien and the funding of the Medicaid set aside to provide lifetime medical coverage for Mr. Tarolli. In addition, Smith Sovik paid McMahon Kublick its compensation attorney fee of $6,000 to finalize the compensation claim.

Therefore, by reason of the foregoing and based on the record before the Court, on the basis of quantum meruit, McMahon Kublick is entitled to 5% of the attorney fees and Smith Sovik is entitled to 95%. By the Court's calculations, the 5% fee amounts to $57,279.45. This amount is in addition to the $6,000 heretofore paid to McMahon Kublick for its worker's compensation fee and constitutes ample payment for the services rendered to the Plaintiffs and satisfies McMahon Kublick's lien.

Smith Sovik is hereby directed to pay said amount to McMahon Kublick within ten (10) days of the filing of this Decision.

IT IS SO ORDERED.