Heilbut v. John Durante, Inc. , 732 N.Y.S.2d 861 ( 2001 )

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), entered June 5, 2000, awarding money to respondent outgoing attorney to be paid by appellant incoming attorney, and bringing up for review an order, same court and Justice, entered on or about December 7, 1999, which, in an action for personal injuries, granted the outgoing attorney’s motion to confirm a Special Referee’s report recommending, inter alia, that the outgoing attorney be awarded 70% of the legal fee, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as superceded by the appeal from the judgment.

The incoming attorney’s claim that the outgoing attorney was discharged for cause and therefore is not entitled to any fee was properly rejected for lack of evidence that the complained of delay in bringing the action to trial was caused by the outgoing attorney’s malpractice (see, Morrison Cohen Singer & Weinstein v Zuker, 203 AD2d 119, 119-120). In addition, the record substantially supports the Special Referee’s finding that the amount and value of the work performed by the attorneys warrants a 70%-30% division of the fee in favor of the outgoing attorney (see, Schoenau v Lek, 283 AD2d 200). Concur — Andrias, J. P., Wallach, Lerner, Rubin and Buckley, JJ.