Plaintiffs' son died allegedly as a result of defendants' medical malpractice. Defendants counterclaimed for indemnification and contribution against one of the plaintiffs, a doctor, alleging that he treated his son and committed malpractice himself. Pare was retained to defend Dr. Speken on the counterclaim. By the terms of the retainer, Pare was to be compensated in the amount of 25% of the net proceeds received by plaintiffs in the wrongful death action after payment of plaintiffs' attorneys' fees in the wrongful death action. Such a contingency retainer will leave plaintiffs with less than what they are entitled to under the mandatory maximum fee contingency schedule for malpractice actions in Judiciary Law § 474-a(2), and is thus unenforceable (see, Matter of Polyan, 204 A.D.2d 727).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.