Marcelli v. United Parcel Service, Inc. 80 A.D.2d 827

Appeals by plaintiff’s outgoing attorney (1) from an order of the Supreme Court, Kings County, dated October 4, 1979, which fixed its lien at 20% of the total fees that will eventually be earned by the plaintiff’s new attorney and, (2) as limited by its brief, from so much of an order of the same court dated October 30, 1979, as, upon granting reargument adhered to the original *828determination. Appeal from the order dated October 4, 1979 dismissed, without costs or disbursements. This order was superseded by the order granting reargument. Order dated October 30, 1979 modified, on the law and the facts, by vacating the order dated October 4, 1979 and by increasing the amount of the lien to 50%. As so modified order affirmed insofar as appealed from, without costs or disbursements. In the circumstances of this case, the fixing of the appellant’s lien at 20% of the total fees that will eventually be earned by the plaintiff’s new attorney was an improvident exercise of discretion. The amount of the lien should be increased as indicated. Gibbons, J.P., Rabin, Gulotta and Margett, JJ., concur.