Fee Matters.

The First Department granted plaintiff's attorney's motion for a one-third fee, in Gee v. Salem Day Care, which was decided on January 17, 2008. Although plaintiff signed a retainer agreement that stated otherwise, it is uncontested that she agreed to pay her attorneys a one-third contingency fee for services rendered in connection with her personal injury action, a fee considered reasonable, pursuant top 22 NYCRR 603.7[e][2], Schedule B. Since a fee in a personal injury case may be calculated either as a fixed percentage of the sum recovered or pursuant to a sliding scale, there is no legal, policy, or logical reason to deny a contingency fee to plaintiff's attorney simply because plaintiff inadvertently signed the wrong retainer agreement form. This is especially so because the attorney earned the agreed fee and plaintiff clearly wishes to pay it.

Although plaintiff's attorney chose to remedy this mutual mistake by forthrightly seeking redress and authorization from the court, there is nothing that would have prevented plaintiff from privately and informally correcting the error, by simply paying her attorney the fee differential directly.