In re Mandel

This is an application for an allowance of greater compensation pursuant to rule 4 (subd. [5], par. [d]) of the Special Rules Regulating Conduct of Attorneys of the Appellate Division, First Department. Originally this motion was made returnable before Mr. Justice Frank of the Supreme Court, New York County and referred to me since I was the Justice who presided at the Trial Part where the trial took place. At the outset it is noted that the infant plaintiff who has noto reached her majority and her mother who was the guardian ad litem have submitted an affidavit wherein they consent and agree to a 50% payment of the gross settlement as and for the legal services rendered by their attorney, subject to the approval of the court. Prior to the consolidation of the former Municipal and City Courts of the City of New York this case came before the court while on assignment to the City Court. An inquest was taken before me on January 19, 1960 and after trial a decision was rendered on January 26, 1960 granting a judgment against the defendant in favor of the then infant for $6,000 and in favor of the guardian for $2,000. The attorney for the plaintiffs was indeed beset by many problems which were reviewed by the court in the afore-mentioned decision (see Corsaro v. Lustig, 196 N. Y. S. 2d 797). Thereafter the judgment obtained ivas vacated and resulted in an appeal to the Appellate Term where a reversal was obtained (see 28 Misc. 2d 583). Two subsequent applications for leave to appeal to the Appellate Division were successfully opposed by the movant. As though insufficient obstacles had been thrown before him, the *1044moving party had to face a situation of disclaimer on the part of defendant’s insurance carrier. The moving papers together with the afore-mentioned appeal record clearly demonstrate that the services rendered here were not the ordinary or usual services expected to he performed by an attorney in a negligence action. This is an instance where the attorney is justified in seeking more than the amount decreed by the Appellate Division schedule. The subdivision under which this motion is brought places complete discretion in the court on an application of this kind. After careful consideration of all the proceedings had in this action, the court finds that the attorney for the plaintiff is deserving of the amount now sought. The great volume of work entailed in this case, the many court appearances required at the various proceedings after judgment, the substantial judgment and settlement which was procured, the diverse and serious questions of law posed at all stages of the action and after judgment and the personal diligence and tenacity of the moving party are sufficient to warrant a finding that “ extraordinary circumstances are found to be present,” as stated in the aforesaid rule. Accordingly, the motion is granted. The moving party is directed to pay tó the plaintiff and her mother 50% of the funds held on their behalf.

A copy of this order shall be served on all persons entitled to receive notice of the application, as provided in the terminal part of paragraph (d) of subdivision (5).