Plaintiffs' challenge to the referral is unpersuasive. The record reflects that "the amount of counsel fees for which plaintiffs were obligated to counsel" ( see 288 A.D.2d 126, lv dismissed 98 N.Y.2d 692) cannot be determined without a factfinding process, which is here best left to a referee. Plaintiffs' initial papers failed to substantiate the $4.93 million they were seeking for this purpose from Frota. Although their "summary judgment" motion finally provided some basis for their claim, that figure had dropped to $4.16 million. The record additionally indicates that plaintiffs had also been charged $11,000 for disbursements, which have not yet been itemized.
Frota argues for the first time on appeal that the retainer agreement violates this Court's rule on contingency fees ( 22 NYCRR 603.7[e][1]), governing "any claim or action for personal injury or wrongful death, other than one alleging medical, dental or podiatric malpractice." Plaintiffs argue that rule is inapplicable in a maritime action for consequential damages arising from a contractual obligation; however, the original complaint contained claims which, albeit subsequently dismissed, alleged personal injury. Plaintiffs' failure to include a copy of the contingency agreement in the record presents yet another basis for referring this matter to a referee.
Frota argues that plaintiffs may only be awarded attorneys' fees for the cause of action and award for past maintenance and cure, which would limit the recovery to $61,000. However, that issue has already been decided, and Frota is barred from challenging it anew ( see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343).
M-1011 M-1243 M-1306 M-1563 Pires, et al. v. Frota Oceanica Brasileira, S.A.
Motions seeking leave to dismiss appeal, to strike brief, for oral argument and to refer appeal to prior panel, and for other related relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.