Opinion
May 24, 1989
Dreyer, Boyajian Tuttle, plaintiffs pro se. James R. Dondorf, defendant pro se.
This litigation seeks to recover the costs of disbursements incurred in the plaintiffs' representation of defendant in a Supreme Court negligence action entitled Dondorf v Town of Summit. Therein, the jury returned a verdict in favor of the defendant. Upon Mr. Dondorf's failure to pay the disbursements incurred on his behalf, the instant litigation was commenced. Presently, plaintiffs have moved for summary judgment upon the ground that there is no triable issue of fact and that as a matter of law, it is entitled to be reimbursed for the disbursements paid on behalf of its former client.
The submissions establish that the sum of $5,000 was paid to the physician who testified on plaintiff's behalf, the sum of $3,651.25 was paid to secure the testimony of the expert who testified as to plaintiff's economic losses, and that other disbursements relating to the trial of this action were incurred in the sum of $524.82. The retainer agreement provides for a contingent fee in the amount of one third of the net amount recovered, but is silent with respect to the ultimate responsibility for the payment of disbursements.
Theoretically, disbursements should be paid by the client before they are made. However, in negligence cases, it has become common practice for attorneys to advance such payments and obtain reimbursement from the proceeds of the recovery (Schwed v Parks, 14 A.D.2d 806). A retainer agreement may expressly provide that the client may be responsible for disbursements separately or that they will be included in an attorney's contingent fee. However, even in the absence of an express agreement, "the attorney is entitled to remuneration for such disbursements. It is presumed that necessary disbursements will be ultimately borne by the client." (7 N.Y. Jur 2d, Attorneys at Law, § 127, at 16.)
In the case at bar, there is nothing before the court to indicate that the disbursements incurred were unnecessary, and as such, plaintiffs are entitled to summary judgment as a matter of law.