Preview
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022
EXHIBIT “A”
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022
CONTINGENCY FEE RETAINER AGREEMENT
1, _ n ^-
, D/O/B: c | No ( ., Social
Security Number: hM the undersigned, of . 36
hÂth \ So ....
____ , New York, do hereby
employ and retain MAINETTI, MAINETTI & O'CONNOR, P.C. Attomeys at Law, to institute
legal proceedings on behalf of h\o Whb against t‰ - M4 4 ‰ fQLL
or the proper defendant or respondent to recover damages sustained by \ _h.
_, on or about the + day of neAnc , M , as a result of m r Ve
c AAk . and I do hereby agree with my said attorneys to pay them a contingent fee as
set forth hereafter of any settlement had in said case ifsame is settled at any time prior to
instituting of suit,and of any settlement, verdict or recovery had in said action after instituting of
suit;in addition, the undersigned agrees to reimburse said attorneys for all costs and disbursements,
including medical records requests, and including expert and investigative fees, and all costs of
prosecution of suit undertaken during the prosecution of the case from the gross proceeds of said
settlement, verdict or recovery had in said action. The undersigned understands that medical bills
incurred for treatment and any liens by doctors, hospitals, insurance companies, or by operation of
law are not costs of litigation, but are the responsibility of the client and are to be paid from net
any
recovery to client. There shall be no legal fee unless prosecution is successful. Mainetti, Mainetti
& O'Connor, P.C. shall receive a filemaintenance fee in the amount of $250.00 to be paid from the
amount recovered. This agreement does not include the cost of defense or prosecution of possible
appeals after trial. Any such appellate practice will be subject to further agreement and retainer.
1. Scope of Services:
(a) Services Included in This Engagement
Client has agreed to retain the services of Law Firm in connection with Client's
claim for personal injuries arise out of the following incident that occurred on
4 4 C . Law Firm will perform the following legal services, ifnecessary or
appropriate, with respect to the claims flowing from this single incident: investigation of claim(s);
determining responsible parties; preparing and filing of lawsuit; settlement procedures and
negotiations; prosecution of claim(s) by arbitration or legal action until settlement, award, or
judgement is obtained, and ifjudgment is obtained in Client's favor, opposing an opposing party's
motion for new trial (ifany). Client authorizes Law Firm to engage a contract lawyer, from time to
time, for matters of efficiency. Client acknowledges that Law Firm has made no guarantees as the
outcome or the amounts recoverable in connection with Client's claim(s). This retainer is not
valid until counter-signed by Law Firm.
(b) Services Not Included in This Engagement
This Agreement encompasses only services required for a single litigated trial,if
necessary. Additional services which may be necessary or appropriate subsequent to a single
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022
litigated trial are not included within the scope of this Agreement. Such additional services which
may be required and an additional reasonable legal free charged for include: Any and all appeals
before, during or after trial;any judgment enforcement proceedings; any and all estate work,
including the appointment of fiduciaries; any and allguardianship matters; any and allproceedings
regarding liens including Medicare and Medicaid liens; any and all probate proceedings; all
proceedings to appoint executors(s) or administrator(s) of my estate, if 1 should die, or to appoint
the executor or administrator of any other party to a lawsuit brought to enforce your claim. Client
understands that the current law and regulations regarding Medicare, Medicaid or private health
insurance plans may require all parties involved in this matter to compromise, settle or execute a
Providers'
release of Health Care separate claim for reimbursement/lien for past and future
payments prior to distributing any verdict or settlement proceeds. We agree that Law Firm may
take allsteps in this matter deemed advisable for the handling of our claim, including hiring
Providers'
separate experts/case workers who assist with resolving any Health Care reimbursement
claims or liens for past and/or future injury related-medical care. The expense of any such service
shall be treated as a case expense and deducted from our net recovery as outlined Paragraph 3(a)
and (c) and shall not paid out of Law Firm's contingent fee in this matter. Client understands that
Law Firm is under no obligation to provide such additional services.
(c) Claims Excluded From This Engagement
This Agreement does not cover other related claims that may arise and may require
workers'
legal services (for example, compensation claims; disputes with Client's insurance
company regarding coverage or amount of loss or reimbursement for benefits paid or with Client's
No-Fault insurance carrier for any and all No-Fault benefits or disputes with health care providers,
regarding amount owed or reimbursement for benefits provided; or claims against any health care
provider for medical malpractice in connection with the treatment for such claim(s). Specifically,
Client understands and agrees that Law Firm has not been retained to investigate or pursue, and
will not investigate or pursue any medical malpractice action or any other action against Defendant,
Client's doctors, medical care givers or any other party. Client further understands and agrees that
prosecuting a claim for, or submitting claims for,No-Fault benefits, and/or NYS Disability
benefits, ifapplicable, is not part of this agreement. Client understands that the statutes of
limitation applicable to any such claims may have expired before Client ever contacted Law Firm,
or that the statutes of limitation may expire in the very near future, and that each day Client waits
to file suit in any of the matters excluded from this agreement may be the last day a suit can be
filed.
(d) Client Obligations
In order for Law Firm to effectively advocate Client's interests, Client agrees that
client has an affirmative duty to assist and to cooperate with Law Firm as fully possible. Client
agrees to advise Law Firm of: any liens, encumbrances or claims asserted against any recovery
filed or filed on Client's behalf during this representation; of any address and/or phone number
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change within 30 days of change, and ifClient is receiving any benefits from a Governmental
assistance program, included, but not limited to Medicaid, Medicare, Social Services or Social
Security Disability.
2. Law Firm's Right to Withdraw After Investigation:
It isagreed that Law Firm is prosecuting Client's claim(s) subject to its investigation of the
facts and that if Law Firm determines in itssole judgment that Client's claims(s) are.being
presented for any improper purpose; are not warranted by existing law or by a non-frivolous
argument for the extension, modification, or reversal of existing law or the establishment of new
law; do not have or are not likely to have evidentiary support; itis not feasible to prosecute Client's
claim(s); Client fails to cooperate with Law Firm, including, but not limited to Client misrepresents
material facts, Client failsto follow advice of Law Firm (other than with respect to settlement,
which is solely for Client to decide), or if Client requests Law Firm to take any position or action
that in the Law Firm's good faith opinion requires Law Firm to violate applicable Rules of
Professional Conduct. The Law Firm is then permitted to cease all work on Client's claim(s) and
is authorized to discontinue the prosecution of such claim(s), upon written notice to Client at
Client's last known address by regular mail. Law Firm and Client agree that upon such
withdrawal, Law Firm shall cease to be Client's counsel, and client will have the right to seek new
counsel.
3. Contingency Fee to Law Firm:
(a) Calculation of Contingency Fee
Client agrees to pay Law Firm a contingency fee of thirty-three and one-third
percent (33 1/3) of any recovery, whether such recovery is by suit, settlement, judgrnent,
compromise or otherwise; and Client agrees this arrangement is fair and reasonable. If Client was
referred by another lawyer to Law Firm, Client authorizes Law Firm to share the contingency fee
with said lawyer and understands that no additional fee will be incurred. If the matter was referred
by another law firm, each law firm agrees to be jointly responsible for the prosecution of the case.
Unless a recovery is made, Client shall have no obligation to pay a fee to Law Firm.
The Court's rules provide for an election by Client of two different ways of
providing for the payment of litigation costs, expenses and disbursements (see Section 4, below).
Client may elect to bear responsibility for these costs or Client may clect to have Law Firm pay the
case costs and be repaid for the case costs only ifthere is a recovery.
attorneys'
Depending on Client's election, the fees will be calculated differently.
Choice 1: the Gross Sum Fee Arrangement. Law Firm will agree to pay the case
costs the Law Firm determines are reasonable and appropriate, and to be repaid such case costs
only if there is a recovery. If Client elects this choice, then the contingency fee of 33 1/3% will
be calculated on the gross amc=t recovered, so that the attorneys will receive one-third of the
total amount recovered plus the case costs they have paid . If there is a recovery but the recovery is
less than the case costs so paid, then Law Firm will recover no more than the amount of the
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recovery, and Client will have no responsibility to repay Law Firm for the deficiency. If there is no
recovery, Client will have no responsibility to repay the attorneys for the case costs.
An example of how the Contingency Fee is computed for Choice 1 is as follows:
Gross Recovery $100,000.00
Attorney's Fee (33 1/3%): 33,333.33
Net Recovery: $ 66,667.67
Costs, Disbursements and Expenses: 10,000.00
Client's share: $ 56,667.67
Choice 2: the Net Sum Fee Arrangement. Client agrees to be responsible for the
payment of the case costs that Law Firm determines are reasonable and appropriate, whether or
not there is any recôvery. In that event, the contingency fee shall be calculated on the net amount
after deduction for the costs paid.
_A_n_example of how the Contingency Fee is computed for Choice 2 is as follows
Gross Recovery $100,000.00
Costs, Disbursements and Expenses: -10,000.00
Net Recovery: $ 90,000.00
Attorneys'
Fee (33 1/3%) -30,000.00
Client's Share: $ 60 000.00
Client understands and agrees that in electing to retain Law Firm under the terms
attorneys'
expressed in Choice 1, Client's net recovery will be less and the fee will be greater than
itClient elects to retain Law Firm under the terms expressed in Choice 2. If Client elects to retain
Law Firm under the terms expressed in Choice 1 under this agreement, Client shall have no
responsibility for payment and/or repayment of the case costs even in the event there is no recovery
on behalf of the Client.
Client has had an opportunity to consider which fee arrangement Client prefers and
agrees that Law F recovery will be calculated under
Choice 1, thegross sum fee arrangement.
Choice 2, the net sum fee arrangement.
(b) Items deducted solely from Client recovery
Client understands that under either Choice 1 or Choice 2, the following items are
attorneys'
not to be deducted in computing the fee percentage , but rather are chargeable against
Client's share of the recovery: liens, including Medicare and Medicaid, executed by Client and
filed with Law Firm and assigñmeñts or claims in favor of hospital; for medical treatment by health
care of self-insurers or insurance carries; or by Law Firm for other legal services. Client further
understands Law Firm discourages and recommends against Client advances from non-
obtaining
recourse personal injury investing/funding companies that advances monies and places a lien on
this matter. Should Client seek such funding and Law Firm must work on the funding agreement
such work is not part of the contingent fee set forth above and Law Firm shall be entitled to
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receive $125.00 for each funding company application Client requests Law Firm to complete.
4. Litigation Costs and Exnenses:
(a) Advancement of Costs
Law Firm is authorized to incur reasonable costs and expenses in performing legal
services under this Agreement. Law Firm utilizes very extensive trialsupport services in order to
obtain the best possible verdict or settlement, which can result in large expenditures by Law Firm.
The costs, expenses and disbursement necessary in this case may include any or all of the following
items: court filing fees; process serving fees; witness fees; private investigator fees; investigative
fees; photographer/graphic artist fees; fees to experts for consultation and/or appearance at
deposition or trial, mail, messenger and other delivery charges; parking and other local travel;
transportation, meals, lodging and all other costs of necessary out-of-town travel; long distance
charges'
telephone photocopying, imaging, faxing and digital storage charges; and computerized
legal research charges; travel costs of attorneys, paralegals, witnesses and expert witnesses who
may have to travel to attend inspections, examinations, depositions or trials; medical record
retrieval fees, audiovisual rental and other equipment and exhibit rental; and film and image
duplication; computerized trialpresentation sothvare such as PowerPoint and/or Trial Director
together with audiovisual equipment. This listis not exclusive. in addition to the foregoing
expenses, other charges may be incurred in connection with the performance of the services
described herein by Law Firm. Law Firm may employ such technical experts or investigators who,
in itsopinion, are necessary to investigate the facts surrounding Client's case or claim. All such
experts shall report exclusively to Law Firm. Itis agreed that Law Firm may decline, in itssole
discretion, to advance costs and disbursements for expert testimony, investigation or other similar
services.
With respect to what the total costs and expenses will be at the end of your case, it
is impossible to give you a precise figure as this amount can vary considerably from case to case
depending on many factors such as liability issues, nature and extent of injuries, number and type
of experts, and the magnitude of the defense experts. However, we can tell you that your costs and
expenses, particularly ifyour claims involve traumatic brain injuries or other neurological
impairment, may be substantial because of the volume of medical records and the large number of
highly specialized medical experts frequently needed to investigate and prove such claims. In
addition, your costs and expenses may be substantial, even if your case ultimately settles, because
we believe itis generally in your best interest to prepare every case as if itis going to be tried to
verdict.
(b) Independent Contractors
During the course of the investigation and litigation of your case, we may hire
various thirty-party companies and individuals, for example, medical and technical expert
witnesses and/or consultants, economists, investigation firms, nurses and doctors, travel
consultants, record requisition firms, forensic accountants, story consultants, and litigation
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technology consultants. Investigators are often hired for various purposes such as finding and
obtaining statements from witnesses, or serving subpoenas. Record requisition firms may be hired
to assist us in obtaining and collating the often voluminous medical and other records that we are
required to obtain ad review to properly prosecute your case. Nurses and doctors may be hired as
consúltãñts to conduct medical-legal chart reviews. Bookkeeping services may be engaged to
collate the medical expenses from the various medical records, insurance and disability claims files
and other records, to calculate and properly prepare claims to recover these costs.
(c) Interest on Costs Advanced by Law Firm
Client understands and authorizes Law Firm to secure financing on Client's behalf
for costs, expenses and disbursements from a third party funding source. Client authorizes Law
Firm to pay any and all financing expenses to the third party funding source during Law Firm's
representation and Client agrees to pay all interest related to monies so advanced. This financing,
together with the interest will be deducted from the proceeds of the case the same as if the costs
were paid with Law Firm funds as outlined in Paragraph 3(b). The financing will accrue monthly
compounding interest at the rate of 6% per year over the Prime Rate (or less). The loan is not due
until the case is settled or monies are received in a recovery but you can choose to repay litigation
expenses as they are incurred to avoid borrowings and interest charges. in the even you decide to
change attorneys and discharge this Law Firm, all case costs incurred to date, along with any and
all interest expense associated with those cause costs, become immediately due and payable to this
Law Firm. Upon discharge, Law Firm shall retain your file until allcase cots and interest is paid in
full. Client may at any time remit to Law Firm the entire amount, or any partial amount, of
outstanding cost, expense and disbursement, together with interest accrued to avoid borrowing and
interest charges.
5. Recovery
(a) In connection with any recovery on behalf of Client's claim(s), Client expressly
grants Law Firm authority to endorse and deposit into itsTrust Account any checks in Client's
name.
(b) In the event of a loss after trial,a judgment for costs may be entered against the
losing party and Client is responsible for any judgment entered against them.
I hereby agree with my attorneys not to make any settlement unless they are present
and receive their contingent fee in accordance with this agreement. And by this agreement I hereby
bind my heirs, executors and legal representatives.
I HAVE READ OVER AND FULLY UNDERSTAND THE ABOVE CONTRACT.
DATED: 27
Witness: owed
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CONTINGENCY FEE RETAINER AGREEMENT
1, Andrew Belair, as Administrator of the Estate of Ashlev McDonald. D/O/B: 3/ 2 / ÓFS
, Social Security Number: ócz -70 +M/ the undersigned, of
608 Ulster Street, Syracuse, NY 13204 , New
York, do hereby employ and retain O'CONNOR & PARTNERS, PLLC, 130 North Front Street,
Estate of Ashley
Suite 200, Kingston, New York 12401, to institute legal proceedings on behalf of
McDonald against Defendañt Phelix, et al. or the proper defendant or respondent to recover
damages sustained Ashley McDonald on or about the 4th of December
by , day
2015 , , as a result of neclicence _ , and I do hereby agree with
my said attorneys to pay them a contingent fee as set forth hereafter of any settlement had in said
case if same is settled at any time prior to instituting of suit, and of any settlement, verdict or
recovery had in said action after instituting of suit; in addition, the undersigned agrees to reimburse
said attorneys for all costs and disbursements, including medical records requests, and including
expert and investigative fees, and all costs of prosecution of suit undertaken during the prosecution
of the case from the gross proceeds of said settlement, verdict or recovery had in said action. The
undersigned understands that medical bills incurred for treatment and any liens by doctors,
hospitals, insurance companies, or by operation of law are not costs of litigation, but are the
responsibility of the client and are to be paid from any net recovery to client. There shall be no
legal fee unless prosecution is successful. O'CONNOR & PARTNERS, PLLC, shall receive a file
maintenance fee in the amount of $300.00 to be paid from the amount recovered. This agreement
does not include the cost of defense or prosecution of possible appeals after trial. Any such
appellate practice will be subject to further agreement and retainer.
1. Scope of Services:
(a) Services Included in This Engagement
Client has agreed to retain the services of Law Firm in connection with Client's
claim for personal injuries arise out of the following incident that occurred on
12/04/2015 . Law Firm will perform the legal if or
following services, necessary
appropriate, with respect to the claims flowing from this single incident: investigation of claim(s);
determining responsible parties; preparing and filing of lawsuit; settlement procedures and
negotiations; prosecution of claim(s) by arbitration or legal action until settlement, award, or
judgement is obtained, and ifjudgment is obtained in Client's favor, opposing an opposing party's
motion for new trial (ifany). Client authorizes Law Firm to engage a contract lawyer, from time to
time, for matters of efficiency. Client acknowledges that Law Firm has made no guarantees as the
outcome or the amounts recoverable in connection with Client's claim(s).
(b) Services Not Included in This Engagement
This Agreement encompasses only services required for a single litigated trial,if
necessary. Additional services which may be necessary or appropriate subsequent to a single
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022
litigated trial are not included within the scope of this Agreement. Such additional services which
may be required and an additional reasonable legal free charged for include: Any and allappeals
before, during or after trial;any judgment enforcement proceedings; any and allestate work,
including the appointment of fiduciaries; any and all guardianship matters; any and all proceedings
regarding liens including Medicare and Medicaid liens; any and allprobate proceedings; all
proceedings to appoint executors(s) or administrator(s) of my estate, if I should die, or to appoint
the executor or administrator of any other party to a lawsuit brought to enforce your claim. Any
and all appellate work or estate work will be billed at an hourly rate of $500.00 per hour for
partners and $350.00 per hour for associates. Client understands that the current law and
regulations regarding Medicare, Medicaid or private health insurance plans may require allparties
Providers'
involved in this matter to compromise, settle or execute a release of Health Care
separate claim for reimbursement/lien for past and future payments prior to distributing any verdict
or settlement proceeds. We agree that Law Firm may take all steps in this matter deemed advisable
for the handling of our claim, including hiring separate experts/case workers who assist with
Providers'
resolving any Health Care reimbursement claims or liens for past and/or future injury
related-medical care. The expense of any such service shall be treated as a case expense and
deducted from our net recovery as outlined Paragraph 3(a) and (c) and shall not paid out of Law
Firm's contingent fee in this matter. Client understands that Law Firm is under no obligation to
provide such additional services.
(c) Claims Excluded From This Engagement
This Agreement does not cover other related claims that may arise and may require
workers'
legal services (for example, compensation claims; disputes with Client's insurance
company regarding coverage or amount of loss or reimbursement for benefits paid or with Client's
No-Fault insurance carrier for any and allNo-Fault benefits or disputes with health care providers,
regarding amount owed or reimbursement for benefits provided; or claims against any health care
provider for medical malpractice in connection with the treatment for such claim(s). Specifically,
Client understands and agrees that Law Firm has not been retained to investigate or pursue, and
will not investigate or pursue any medical malpractice action or any other action against Defendant,
Client's doctors, medical care givers or any other party. Client further understands and agrees that
prosecuting a claim for, or submitting claims for,No-Fault benefits, and/or NYS Disability
benefits, if applicable, is not part of this agreement. Client understands that the statutes of
limitation applicable to any such claims may have expired before Client ever contacted Law Firm,
or that the statutes of limitation may expire in the very near future, and that each day Client waits
to file suit in any of the matters excluded from this agreement may be the last day a suit can be
filed.
(d) Client Obligations
In order for Law Firm to effectively advocate Client's interests, Client agrees that
client has an affirmative duty to assist and to cooperate with Law Firm as fully possible. Client
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agrees to advise Law Firm of: any liens, encumbrances or claims asserted against any recovery
filed or filed on Client's behalf during this representation; of any address and/or phone number
change within 30 days of change, and if Client is receiving any benefits from a Govemmental
assistance program, included, but not limited to Medicaid, Medicare, Social Services or Social
Security Disability.
2. Law Firm's Right to Withdraw After Investigation:
It isagreed that Law Firm is prosecuting Client's claim(s) subject to its investigation of the
facts and that if Law Firm determines in itssole judgment that Client's claims(s) are being
presented for any improper purpose; are not warranted by existing law or by a non-frivolous
argument for the extension, modification, or reversal of existing law or the establishment of new
law; do not have or are not likely to have evidentiary support; itis not feasible to prosecute Client's
claim(s); Client fails to cooperate with Law Firm, including, but not limited to Client misrepresents
material facts, Client fails to follow advice of Law Firm (other than with respect to settlement,
which is solely for Client to decide), or if Client requests Law Firm to take any position or action
that in the Law Firm's good faith opinion requires Law Firm to violate applicable Rules of
Professional Conduct. The Law Firm is then permitted to cease allwork on Client's claim(s) and
is authorized to discontinue the prosecution of such claim(s), upon written notice to Client at
Client's last known address by regular mail. Law Firm and Client agree that upon such
withdrawal, Law Firm shall cease to be Client's counsel, and client will have the right to seek new
counsel.
3. Contingency Fee to Law Firm:
(a) Calculation of Contingency Fee
Client agrees to pay Law Firm a contingency fee of thirty-three and one-third
percent (33 1/3) of any recovery, whether such recovery is by suit, settlement, judgment,
compromise or otherwise; and Client agrees this arrangement is fairand reasonable. If Client was
referred by another lawyer to Law Firm, Client authorizes Law Firm to share the contingency fee
with said lawyer and understands that no additional fee will be incurred. If thematter was referred
by another law firm, each law firm agrees to be jointly responsible for the prosecution of the case.
Unless a recovery is made, Client shall have no obligation to pay a fee to Law Firm.
The Court's rules provide for an election by Client of two different ways of
providing for the payment of litigation costs, expenses and disbursements (see Section 4, below).
Client may elect to bear responsibility for these costs or Client may elect to have Law Firm pay the
case costs and be repaid for the case costs only if there is a recovery.
attorneys'
Depending on Client's election, the fees will be calculated differently.
Choice 1: the Gross Sum Fee Arrangement. Law Firm will agree to pay the case
costs the Law Firm determines are reasonable and appropriate, and to be repaid such case costs
only ifthere is a recovery. If Client elects this choice, then the contingency fee of 33 1/3% will
be calculated on the gross as:::‡ recovered, so that the attorneys will receive one-third of the
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022
total amount recovered plus the case costs they have paid . If there is a recovery but the recovery is
less than the case costs so paid, then Law Firm will recover no more than the amount of the
recovery, and Client will have no responsibility to repay Law Firm for the deficiency. If there is no
recovery, Client will have no responsibility to repay the attorneys for the case costs.
An examole of how the Contingency Fee is comouted for Choice 1 is as follows:
Gross Recovery $100,000.00
Attorney's Fee (33 1/3%): 33.333.33
Net Recovery:
Preview
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 EXHIBIT “A” FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 CONTINGENCY FEE RETAINER AGREEMENT 1, _ n ^- , D/O/B: c | No ( ., Social Security Number: hM the undersigned, of . 36 hÂth \ So .... ____ , New York, do hereby employ and retain MAINETTI, MAINETTI & O'CONNOR, P.C. Attomeys at Law, to institute legal proceedings on behalf of h\o Whb against t‰ - M4 4 ‰ fQLL or the proper defendant or respondent to recover damages sustained by \ _h. _, on or about the + day of neAnc , M , as a result of m r Ve c AAk . and I do hereby agree with my said attorneys to pay them a contingent fee as set forth hereafter of any settlement had in said case ifsame is settled at any time prior to instituting of suit,and of any settlement, verdict or recovery had in said action after instituting of suit;in addition, the undersigned agrees to reimburse said attorneys for all costs and disbursements, including medical records requests, and including expert and investigative fees, and all costs of prosecution of suit undertaken during the prosecution of the case from the gross proceeds of said settlement, verdict or recovery had in said action. The undersigned understands that medical bills incurred for treatment and any liens by doctors, hospitals, insurance companies, or by operation of law are not costs of litigation, but are the responsibility of the client and are to be paid from net any recovery to client. There shall be no legal fee unless prosecution is successful. Mainetti, Mainetti & O'Connor, P.C. shall receive a filemaintenance fee in the amount of $250.00 to be paid from the amount recovered. This agreement does not include the cost of defense or prosecution of possible appeals after trial. Any such appellate practice will be subject to further agreement and retainer. 1. Scope of Services: (a) Services Included in This Engagement Client has agreed to retain the services of Law Firm in connection with Client's claim for personal injuries arise out of the following incident that occurred on 4 4 C . Law Firm will perform the following legal services, ifnecessary or appropriate, with respect to the claims flowing from this single incident: investigation of claim(s); determining responsible parties; preparing and filing of lawsuit; settlement procedures and negotiations; prosecution of claim(s) by arbitration or legal action until settlement, award, or judgement is obtained, and ifjudgment is obtained in Client's favor, opposing an opposing party's motion for new trial (ifany). Client authorizes Law Firm to engage a contract lawyer, from time to time, for matters of efficiency. Client acknowledges that Law Firm has made no guarantees as the outcome or the amounts recoverable in connection with Client's claim(s). This retainer is not valid until counter-signed by Law Firm. (b) Services Not Included in This Engagement This Agreement encompasses only services required for a single litigated trial,if necessary. Additional services which may be necessary or appropriate subsequent to a single FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 litigated trial are not included within the scope of this Agreement. Such additional services which may be required and an additional reasonable legal free charged for include: Any and all appeals before, during or after trial;any judgment enforcement proceedings; any and all estate work, including the appointment of fiduciaries; any and allguardianship matters; any and allproceedings regarding liens including Medicare and Medicaid liens; any and all probate proceedings; all proceedings to appoint executors(s) or administrator(s) of my estate, if 1 should die, or to appoint the executor or administrator of any other party to a lawsuit brought to enforce your claim. Client understands that the current law and regulations regarding Medicare, Medicaid or private health insurance plans may require all parties involved in this matter to compromise, settle or execute a Providers' release of Health Care separate claim for reimbursement/lien for past and future payments prior to distributing any verdict or settlement proceeds. We agree that Law Firm may take allsteps in this matter deemed advisable for the handling of our claim, including hiring Providers' separate experts/case workers who assist with resolving any Health Care reimbursement claims or liens for past and/or future injury related-medical care. The expense of any such service shall be treated as a case expense and deducted from our net recovery as outlined Paragraph 3(a) and (c) and shall not paid out of Law Firm's contingent fee in this matter. Client understands that Law Firm is under no obligation to provide such additional services. (c) Claims Excluded From This Engagement This Agreement does not cover other related claims that may arise and may require workers' legal services (for example, compensation claims; disputes with Client's insurance company regarding coverage or amount of loss or reimbursement for benefits paid or with Client's No-Fault insurance carrier for any and all No-Fault benefits or disputes with health care providers, regarding amount owed or reimbursement for benefits provided; or claims against any health care provider for medical malpractice in connection with the treatment for such claim(s). Specifically, Client understands and agrees that Law Firm has not been retained to investigate or pursue, and will not investigate or pursue any medical malpractice action or any other action against Defendant, Client's doctors, medical care givers or any other party. Client further understands and agrees that prosecuting a claim for, or submitting claims for,No-Fault benefits, and/or NYS Disability benefits, ifapplicable, is not part of this agreement. Client understands that the statutes of limitation applicable to any such claims may have expired before Client ever contacted Law Firm, or that the statutes of limitation may expire in the very near future, and that each day Client waits to file suit in any of the matters excluded from this agreement may be the last day a suit can be filed. (d) Client Obligations In order for Law Firm to effectively advocate Client's interests, Client agrees that client has an affirmative duty to assist and to cooperate with Law Firm as fully possible. Client agrees to advise Law Firm of: any liens, encumbrances or claims asserted against any recovery filed or filed on Client's behalf during this representation; of any address and/or phone number FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 change within 30 days of change, and ifClient is receiving any benefits from a Governmental assistance program, included, but not limited to Medicaid, Medicare, Social Services or Social Security Disability. 2. Law Firm's Right to Withdraw After Investigation: It isagreed that Law Firm is prosecuting Client's claim(s) subject to its investigation of the facts and that if Law Firm determines in itssole judgment that Client's claims(s) are.being presented for any improper purpose; are not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; do not have or are not likely to have evidentiary support; itis not feasible to prosecute Client's claim(s); Client fails to cooperate with Law Firm, including, but not limited to Client misrepresents material facts, Client failsto follow advice of Law Firm (other than with respect to settlement, which is solely for Client to decide), or if Client requests Law Firm to take any position or action that in the Law Firm's good faith opinion requires Law Firm to violate applicable Rules of Professional Conduct. The Law Firm is then permitted to cease all work on Client's claim(s) and is authorized to discontinue the prosecution of such claim(s), upon written notice to Client at Client's last known address by regular mail. Law Firm and Client agree that upon such withdrawal, Law Firm shall cease to be Client's counsel, and client will have the right to seek new counsel. 3. Contingency Fee to Law Firm: (a) Calculation of Contingency Fee Client agrees to pay Law Firm a contingency fee of thirty-three and one-third percent (33 1/3) of any recovery, whether such recovery is by suit, settlement, judgrnent, compromise or otherwise; and Client agrees this arrangement is fair and reasonable. If Client was referred by another lawyer to Law Firm, Client authorizes Law Firm to share the contingency fee with said lawyer and understands that no additional fee will be incurred. If the matter was referred by another law firm, each law firm agrees to be jointly responsible for the prosecution of the case. Unless a recovery is made, Client shall have no obligation to pay a fee to Law Firm. The Court's rules provide for an election by Client of two different ways of providing for the payment of litigation costs, expenses and disbursements (see Section 4, below). Client may elect to bear responsibility for these costs or Client may clect to have Law Firm pay the case costs and be repaid for the case costs only ifthere is a recovery. attorneys' Depending on Client's election, the fees will be calculated differently. Choice 1: the Gross Sum Fee Arrangement. Law Firm will agree to pay the case costs the Law Firm determines are reasonable and appropriate, and to be repaid such case costs only if there is a recovery. If Client elects this choice, then the contingency fee of 33 1/3% will be calculated on the gross amc=t recovered, so that the attorneys will receive one-third of the total amount recovered plus the case costs they have paid . If there is a recovery but the recovery is less than the case costs so paid, then Law Firm will recover no more than the amount of the FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 recovery, and Client will have no responsibility to repay Law Firm for the deficiency. If there is no recovery, Client will have no responsibility to repay the attorneys for the case costs. An example of how the Contingency Fee is computed for Choice 1 is as follows: Gross Recovery $100,000.00 Attorney's Fee (33 1/3%): 33,333.33 Net Recovery: $ 66,667.67 Costs, Disbursements and Expenses: 10,000.00 Client's share: $ 56,667.67 Choice 2: the Net Sum Fee Arrangement. Client agrees to be responsible for the payment of the case costs that Law Firm determines are reasonable and appropriate, whether or not there is any recôvery. In that event, the contingency fee shall be calculated on the net amount after deduction for the costs paid. _A_n_example of how the Contingency Fee is computed for Choice 2 is as follows Gross Recovery $100,000.00 Costs, Disbursements and Expenses: -10,000.00 Net Recovery: $ 90,000.00 Attorneys' Fee (33 1/3%) -30,000.00 Client's Share: $ 60 000.00 Client understands and agrees that in electing to retain Law Firm under the terms attorneys' expressed in Choice 1, Client's net recovery will be less and the fee will be greater than itClient elects to retain Law Firm under the terms expressed in Choice 2. If Client elects to retain Law Firm under the terms expressed in Choice 1 under this agreement, Client shall have no responsibility for payment and/or repayment of the case costs even in the event there is no recovery on behalf of the Client. Client has had an opportunity to consider which fee arrangement Client prefers and agrees that Law F recovery will be calculated under Choice 1, thegross sum fee arrangement. Choice 2, the net sum fee arrangement. (b) Items deducted solely from Client recovery Client understands that under either Choice 1 or Choice 2, the following items are attorneys' not to be deducted in computing the fee percentage , but rather are chargeable against Client's share of the recovery: liens, including Medicare and Medicaid, executed by Client and filed with Law Firm and assigñmeñts or claims in favor of hospital; for medical treatment by health care of self-insurers or insurance carries; or by Law Firm for other legal services. Client further understands Law Firm discourages and recommends against Client advances from non- obtaining recourse personal injury investing/funding companies that advances monies and places a lien on this matter. Should Client seek such funding and Law Firm must work on the funding agreement such work is not part of the contingent fee set forth above and Law Firm shall be entitled to FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 receive $125.00 for each funding company application Client requests Law Firm to complete. 4. Litigation Costs and Exnenses: (a) Advancement of Costs Law Firm is authorized to incur reasonable costs and expenses in performing legal services under this Agreement. Law Firm utilizes very extensive trialsupport services in order to obtain the best possible verdict or settlement, which can result in large expenditures by Law Firm. The costs, expenses and disbursement necessary in this case may include any or all of the following items: court filing fees; process serving fees; witness fees; private investigator fees; investigative fees; photographer/graphic artist fees; fees to experts for consultation and/or appearance at deposition or trial, mail, messenger and other delivery charges; parking and other local travel; transportation, meals, lodging and all other costs of necessary out-of-town travel; long distance charges' telephone photocopying, imaging, faxing and digital storage charges; and computerized legal research charges; travel costs of attorneys, paralegals, witnesses and expert witnesses who may have to travel to attend inspections, examinations, depositions or trials; medical record retrieval fees, audiovisual rental and other equipment and exhibit rental; and film and image duplication; computerized trialpresentation sothvare such as PowerPoint and/or Trial Director together with audiovisual equipment. This listis not exclusive. in addition to the foregoing expenses, other charges may be incurred in connection with the performance of the services described herein by Law Firm. Law Firm may employ such technical experts or investigators who, in itsopinion, are necessary to investigate the facts surrounding Client's case or claim. All such experts shall report exclusively to Law Firm. Itis agreed that Law Firm may decline, in itssole discretion, to advance costs and disbursements for expert testimony, investigation or other similar services. With respect to what the total costs and expenses will be at the end of your case, it is impossible to give you a precise figure as this amount can vary considerably from case to case depending on many factors such as liability issues, nature and extent of injuries, number and type of experts, and the magnitude of the defense experts. However, we can tell you that your costs and expenses, particularly ifyour claims involve traumatic brain injuries or other neurological impairment, may be substantial because of the volume of medical records and the large number of highly specialized medical experts frequently needed to investigate and prove such claims. In addition, your costs and expenses may be substantial, even if your case ultimately settles, because we believe itis generally in your best interest to prepare every case as if itis going to be tried to verdict. (b) Independent Contractors During the course of the investigation and litigation of your case, we may hire various thirty-party companies and individuals, for example, medical and technical expert witnesses and/or consultants, economists, investigation firms, nurses and doctors, travel consultants, record requisition firms, forensic accountants, story consultants, and litigation FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 technology consultants. Investigators are often hired for various purposes such as finding and obtaining statements from witnesses, or serving subpoenas. Record requisition firms may be hired to assist us in obtaining and collating the often voluminous medical and other records that we are required to obtain ad review to properly prosecute your case. Nurses and doctors may be hired as consúltãñts to conduct medical-legal chart reviews. Bookkeeping services may be engaged to collate the medical expenses from the various medical records, insurance and disability claims files and other records, to calculate and properly prepare claims to recover these costs. (c) Interest on Costs Advanced by Law Firm Client understands and authorizes Law Firm to secure financing on Client's behalf for costs, expenses and disbursements from a third party funding source. Client authorizes Law Firm to pay any and all financing expenses to the third party funding source during Law Firm's representation and Client agrees to pay all interest related to monies so advanced. This financing, together with the interest will be deducted from the proceeds of the case the same as if the costs were paid with Law Firm funds as outlined in Paragraph 3(b). The financing will accrue monthly compounding interest at the rate of 6% per year over the Prime Rate (or less). The loan is not due until the case is settled or monies are received in a recovery but you can choose to repay litigation expenses as they are incurred to avoid borrowings and interest charges. in the even you decide to change attorneys and discharge this Law Firm, all case costs incurred to date, along with any and all interest expense associated with those cause costs, become immediately due and payable to this Law Firm. Upon discharge, Law Firm shall retain your file until allcase cots and interest is paid in full. Client may at any time remit to Law Firm the entire amount, or any partial amount, of outstanding cost, expense and disbursement, together with interest accrued to avoid borrowing and interest charges. 5. Recovery (a) In connection with any recovery on behalf of Client's claim(s), Client expressly grants Law Firm authority to endorse and deposit into itsTrust Account any checks in Client's name. (b) In the event of a loss after trial,a judgment for costs may be entered against the losing party and Client is responsible for any judgment entered against them. I hereby agree with my attorneys not to make any settlement unless they are present and receive their contingent fee in accordance with this agreement. And by this agreement I hereby bind my heirs, executors and legal representatives. I HAVE READ OVER AND FULLY UNDERSTAND THE ABOVE CONTRACT. DATED: 27 Witness: owed FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 CONTINGENCY FEE RETAINER AGREEMENT 1, Andrew Belair, as Administrator of the Estate of Ashlev McDonald. D/O/B: 3/ 2 / ÓFS , Social Security Number: ócz -70 +M/ the undersigned, of 608 Ulster Street, Syracuse, NY 13204 , New York, do hereby employ and retain O'CONNOR & PARTNERS, PLLC, 130 North Front Street, Estate of Ashley Suite 200, Kingston, New York 12401, to institute legal proceedings on behalf of McDonald against Defendañt Phelix, et al. or the proper defendant or respondent to recover damages sustained Ashley McDonald on or about the 4th of December by , day 2015 , , as a result of neclicence _ , and I do hereby agree with my said attorneys to pay them a contingent fee as set forth hereafter of any settlement had in said case if same is settled at any time prior to instituting of suit, and of any settlement, verdict or recovery had in said action after instituting of suit; in addition, the undersigned agrees to reimburse said attorneys for all costs and disbursements, including medical records requests, and including expert and investigative fees, and all costs of prosecution of suit undertaken during the prosecution of the case from the gross proceeds of said settlement, verdict or recovery had in said action. The undersigned understands that medical bills incurred for treatment and any liens by doctors, hospitals, insurance companies, or by operation of law are not costs of litigation, but are the responsibility of the client and are to be paid from any net recovery to client. There shall be no legal fee unless prosecution is successful. O'CONNOR & PARTNERS, PLLC, shall receive a file maintenance fee in the amount of $300.00 to be paid from the amount recovered. This agreement does not include the cost of defense or prosecution of possible appeals after trial. Any such appellate practice will be subject to further agreement and retainer. 1. Scope of Services: (a) Services Included in This Engagement Client has agreed to retain the services of Law Firm in connection with Client's claim for personal injuries arise out of the following incident that occurred on 12/04/2015 . Law Firm will perform the legal if or following services, necessary appropriate, with respect to the claims flowing from this single incident: investigation of claim(s); determining responsible parties; preparing and filing of lawsuit; settlement procedures and negotiations; prosecution of claim(s) by arbitration or legal action until settlement, award, or judgement is obtained, and ifjudgment is obtained in Client's favor, opposing an opposing party's motion for new trial (ifany). Client authorizes Law Firm to engage a contract lawyer, from time to time, for matters of efficiency. Client acknowledges that Law Firm has made no guarantees as the outcome or the amounts recoverable in connection with Client's claim(s). (b) Services Not Included in This Engagement This Agreement encompasses only services required for a single litigated trial,if necessary. Additional services which may be necessary or appropriate subsequent to a single FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 litigated trial are not included within the scope of this Agreement. Such additional services which may be required and an additional reasonable legal free charged for include: Any and allappeals before, during or after trial;any judgment enforcement proceedings; any and allestate work, including the appointment of fiduciaries; any and all guardianship matters; any and all proceedings regarding liens including Medicare and Medicaid liens; any and allprobate proceedings; all proceedings to appoint executors(s) or administrator(s) of my estate, if I should die, or to appoint the executor or administrator of any other party to a lawsuit brought to enforce your claim. Any and all appellate work or estate work will be billed at an hourly rate of $500.00 per hour for partners and $350.00 per hour for associates. Client understands that the current law and regulations regarding Medicare, Medicaid or private health insurance plans may require allparties Providers' involved in this matter to compromise, settle or execute a release of Health Care separate claim for reimbursement/lien for past and future payments prior to distributing any verdict or settlement proceeds. We agree that Law Firm may take all steps in this matter deemed advisable for the handling of our claim, including hiring separate experts/case workers who assist with Providers' resolving any Health Care reimbursement claims or liens for past and/or future injury related-medical care. The expense of any such service shall be treated as a case expense and deducted from our net recovery as outlined Paragraph 3(a) and (c) and shall not paid out of Law Firm's contingent fee in this matter. Client understands that Law Firm is under no obligation to provide such additional services. (c) Claims Excluded From This Engagement This Agreement does not cover other related claims that may arise and may require workers' legal services (for example, compensation claims; disputes with Client's insurance company regarding coverage or amount of loss or reimbursement for benefits paid or with Client's No-Fault insurance carrier for any and allNo-Fault benefits or disputes with health care providers, regarding amount owed or reimbursement for benefits provided; or claims against any health care provider for medical malpractice in connection with the treatment for such claim(s). Specifically, Client understands and agrees that Law Firm has not been retained to investigate or pursue, and will not investigate or pursue any medical malpractice action or any other action against Defendant, Client's doctors, medical care givers or any other party. Client further understands and agrees that prosecuting a claim for, or submitting claims for,No-Fault benefits, and/or NYS Disability benefits, if applicable, is not part of this agreement. Client understands that the statutes of limitation applicable to any such claims may have expired before Client ever contacted Law Firm, or that the statutes of limitation may expire in the very near future, and that each day Client waits to file suit in any of the matters excluded from this agreement may be the last day a suit can be filed. (d) Client Obligations In order for Law Firm to effectively advocate Client's interests, Client agrees that client has an affirmative duty to assist and to cooperate with Law Firm as fully possible. Client FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 agrees to advise Law Firm of: any liens, encumbrances or claims asserted against any recovery filed or filed on Client's behalf during this representation; of any address and/or phone number change within 30 days of change, and if Client is receiving any benefits from a Govemmental assistance program, included, but not limited to Medicaid, Medicare, Social Services or Social Security Disability. 2. Law Firm's Right to Withdraw After Investigation: It isagreed that Law Firm is prosecuting Client's claim(s) subject to its investigation of the facts and that if Law Firm determines in itssole judgment that Client's claims(s) are being presented for any improper purpose; are not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; do not have or are not likely to have evidentiary support; itis not feasible to prosecute Client's claim(s); Client fails to cooperate with Law Firm, including, but not limited to Client misrepresents material facts, Client fails to follow advice of Law Firm (other than with respect to settlement, which is solely for Client to decide), or if Client requests Law Firm to take any position or action that in the Law Firm's good faith opinion requires Law Firm to violate applicable Rules of Professional Conduct. The Law Firm is then permitted to cease allwork on Client's claim(s) and is authorized to discontinue the prosecution of such claim(s), upon written notice to Client at Client's last known address by regular mail. Law Firm and Client agree that upon such withdrawal, Law Firm shall cease to be Client's counsel, and client will have the right to seek new counsel. 3. Contingency Fee to Law Firm: (a) Calculation of Contingency Fee Client agrees to pay Law Firm a contingency fee of thirty-three and one-third percent (33 1/3) of any recovery, whether such recovery is by suit, settlement, judgment, compromise or otherwise; and Client agrees this arrangement is fairand reasonable. If Client was referred by another lawyer to Law Firm, Client authorizes Law Firm to share the contingency fee with said lawyer and understands that no additional fee will be incurred. If thematter was referred by another law firm, each law firm agrees to be jointly responsible for the prosecution of the case. Unless a recovery is made, Client shall have no obligation to pay a fee to Law Firm. The Court's rules provide for an election by Client of two different ways of providing for the payment of litigation costs, expenses and disbursements (see Section 4, below). Client may elect to bear responsibility for these costs or Client may elect to have Law Firm pay the case costs and be repaid for the case costs only if there is a recovery. attorneys' Depending on Client's election, the fees will be calculated differently. Choice 1: the Gross Sum Fee Arrangement. Law Firm will agree to pay the case costs the Law Firm determines are reasonable and appropriate, and to be repaid such case costs only ifthere is a recovery. If Client elects this choice, then the contingency fee of 33 1/3% will be calculated on the gross as:::‡ recovered, so that the attorneys will receive one-third of the FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/18/2022 total amount recovered plus the case costs they have paid . If there is a recovery but the recovery is less than the case costs so paid, then Law Firm will recover no more than the amount of the recovery, and Client will have no responsibility to repay Law Firm for the deficiency. If there is no recovery, Client will have no responsibility to repay the attorneys for the case costs. An examole of how the Contingency Fee is comouted for Choice 1 is as follows: Gross Recovery $100,000.00 Attorney's Fee (33 1/3%): 33.333.33 Net Recovery: