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Luchejko v. Membreno

Decided: December 23, 1983.

ANDREW LUCHEJKO, PLAINTIFF,
v.
DR. D. MEMBRENO, ET AL DEFENDANTS



Simpson, A.j.s.c.

Simpson

This is an application under R. 1:21-7(f) for an increased attorney's fee in excess of the amount allowable pursuant to R. 1:21-7(c). Plaintiff has a serious disability known as vestibular dysfunction resulting from over-treatment, following surgery, with garamycin and other aminoglycosides. His balance and ability to walk are permanently impaired.

There was extensive discovery and pretrial motions and a number of difficult legal issues in addition to a six-day trial resulting in a $150,000 verdict. Prejudgment interest totalled approximately $60,000 and after post-trial motions were all denied both sides filed notices of appeal. With the aid of the trial judge, the appeals were withdrawn and the case settled for $165,000. R. 1:21-7(d) disbursements were $6,402.72 and counsel seeks a flat one-third fee on the net aggregate recovery of $158,597.28. This would calculate to $52,865.76, although the notice of motion erroneously calculated the amount as $52,812.89. The notice also erroneously specified an $8,712.57 increase, since the increase over the amount allowable under R. 1:21-7(c) would be $11,679.63:

Amount requested -- 1/3 of $158,597.28 or -- $52,865.76. Amount allowable under the rule:

R. 1:21-7(c) % On

(1) 50 $1,000.00 $500.00

(2) 40 2,000.00 800.00

(3) 1/3 47,000.00 15,666.67

(4) 25 50,000.00 12,500.00

(5) 20 58,597.28 11,719.46 41,186.13

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$158,597.28 $11,679.63

An allowance, of course, can never exceed a noticed request, Iskander v. Columbia Cement Co., Inc., 192 N.J. Super. 114 (Law Div.1983); accordingly, the request will be considered in the amount of $8,712.57. The client does not object to the ...


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