Gennett v. New York State Elec. & Gas Corp.
Docket CV-24-1969
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Dismissed
- Citation
- 2026 NY Slip Op 02310
- Docket
- CV-24-1969
Appeal from an order denying plaintiff's motion to determine the amount of his second attorney's charging lien prior to the conclusion of the action
Summary
The Appellate Division dismissed plaintiff David Gennett's appeal challenging Supreme Court's refusal to fix his second attorney Ronald Benjamin's charging lien before the case concluded. The case had settled while the appeal was pending, making the request for an immediate fee determination moot. The appellate court also held that whether the second attorney's compensation should be measured by quantum meruit instead of the contingency agreement is not yet ripe because Supreme Court has not resolved the fee allocation and has placed a portion of settlement funds in escrow pending that determination. The appeal was dismissed without costs.
Issues Decided
- Whether the trial court erred by declining to fix an attorney charging lien amount before final resolution of the underlying case
- Whether the second attorney's fee should be calculated on a quantum meruit basis rather than under the contingency agreement
Court's Reasoning
The court concluded the request for an immediate fee ruling was moot because the underlying case settled while the appeal was pending. As to the quantum meruit claim, the appellate court found the issue not ripe because Supreme Court has not yet decided how fees will be allocated and has placed settlement funds in escrow pending that determination. Therefore there was no final decision for the appellate court to review on those fee questions.
Authorities Cited
- Stein v Paes165 AD3d 1510 (3d Dept 2018), lv denied 32 NY3d 916 (2019)
- Matter of Tompkins County [Tompkins County Deputy Sheriffs' Assn., Inc.]126 AD3d 1156 (3d Dept 2015)
- 517-525 W. 45 LLC v Avrahami202 AD3d 611 (1st Dept 2022)
Parties
- Appellant
- David J. Gennett
- Respondent
- Ronald R. Benjamin
- Defendant
- New York State Electric & Gas Corporation
- Judge
- Oliver Blaise III
- Judge
- Ceresia, J.
Key Dates
- Decision date
- 2026-04-16
- Order entered (trial court)
- 2024-09-23
- Calendar date (argument)
- 2026-02-09
What You Should Do Next
- 1
Await trial court's fee determination
Do not pursue immediate appellate relief; monitor the Supreme Court proceeding where the allocation of settlement funds and the basis for attorney fees will be decided.
- 2
Consider presenting evidence on fee basis
Prepare and submit any evidence or argument to Supreme Court supporting either the contingency agreement or quantum meruit valuation before the court issues its fee allocation ruling.
- 3
Consult counsel about appeal strategy
If unhappy with the forthcoming Supreme Court ruling on fees, consult an attorney promptly to preserve appellate rights and prepare any necessary record for review.
Frequently Asked Questions
- What did the court decide?
- The appellate court dismissed the appeal because the underlying case settled (making the immediate fee ruling moot) and because the question of measuring the attorney's fee on quantum meruit is premature until the trial court decides and allocates the settlement.
- Who is affected by this decision?
- The plaintiff (David Gennett), his prior and current attorneys, and any parties entitled to settlement distributions are affected because fee allocation remains unresolved and part of the settlement is held in escrow.
- What happens next in the case?
- Supreme Court will decide the fee issues — including whether fees are measured by the contingency agreement or quantum meruit — and then distribute escrowed settlement funds accordingly; the appellate court may be able to review the matter after that final determination.
- Can this dismissal be appealed further?
- The decision dismissed the appeal; once Supreme Court issues a final fee determination, the losing party may seek further appellate review of that final decision.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Gennett v New York State Elec. & Gas Corp. - 2026 NY Slip Op 02310 Gennett v New York State Elec. & Gas Corp. 2026 NY Slip Op 02310 April 16, 2026 Appellate Division, Third Department David J. Gennett, Appellant, v New York State Electric & Gas Corporation et al., Defendants. Ronald R. Benjamin, Respondent. Decided and Entered:April 16, 2026 CV-24-1969 Calendar Date: February 9, 2026 Before: Clark, J.P., Reynolds Fitzgerald, Ceresia, Powers And Corcoran, JJ. Law Office of B. Shamus O'Donniley, Astoria (B. Shamus O'Donniley of counsel), for appellant. Ronald R. Benjamin, Binghamton, respondent pro se. Ceresia, J. Appeal from an order of the Supreme Court (Oliver Blaise III, J.), entered September 23, 2024 in Broome County, which denied plaintiff's motion to determine the amount of Ronald R. Benjamin's charging lien prior to the conclusion of the action. In 2014, plaintiff was injured in a workplace accident at a construction site. In 2017, this action was commenced on plaintiff's behalf by his first attorney. Two years later, the first attorney withdrew from representation of plaintiff, and Supreme Court issued an order providing that the first attorney's legal fees, if any, would be determined at the conclusion of the case. Plaintiff then hired his second attorney, whose retainer agreement provided for a one-third contingency fee. In 2024, plaintiff wrote a letter to the court that, while never filed on any court docket, apparently contained negative allegations about his relationship with his second attorney, who then moved to withdraw from representing plaintiff. Before the withdrawal motion was decided, plaintiff filed a pro se motion to "determine and fix the amount of [his second attorney's] charging lien for a fixed dollar amount on the basis of quantum meruit." Plaintiff claimed that he needed to know the exact amount of his second attorney's counsel fees and out-of-pocket expenses so that he could pay them and more easily retain a third attorney. Plaintiff also argued that his second attorney had demanded, and he had paid, a substantial cash payment during the representation, thereby converting the fee arrangement from contingency to hourly. The second attorney opposed, alleging that the contingency fee agreement remained in place and that the calculation of fees for plaintiff's attorneys should await the final resolution of the matter. Supreme Court ordered that the second attorney's fee, like that of the first attorney, would be calculated at the case's conclusion. Plaintiff appeals. To the extent that plaintiff claims that he was entitled to an immediate ruling on his motion rather than the court delaying its determination until the end of the case, this contention has been rendered moot, given that the case settled during the pendency of this appeal ( see Stein v Paes , 165 AD3d 1510, 1510-1511 [3d Dept 2018], lv denied 32 NY3d 916 [2019]; Matter of Tompkins County [Tompkins County Deputy Sheriffs' Assn., Inc.] , 126 AD3d 1156, 1157 [3d Dept 2015]). As for plaintiff's argument that the second attorney's fees should be calculated on a quantum meruit rather than contingency basis, we note that Supreme Court has yet to decide this issue. Indeed, pending such a determination, the court has ordered a portion of the settlement funds to be held in escrow, not to be distributed until it finally resolves the fee issues relative to each of plaintiff's attorneys. Therefore, this question is not ripe for our review ( see 517-525 W. 45 LLC v Avrahami , 202 AD3d 611, 613 [1st Dept 2022]; CGM Constr., Inc. v Sydor , 144 AD3d 1434, 1438 [3d Dept 2016]). Clark , J.P., Reynolds Fitzgerald, Powers and Corcoran, JJ., concur. ORDERED that the appeal is dismissed, as partially moot and partially unripe, without costs.