Wilson, Elser, Moskowitz, Edelman & Dicker, LLP v
2009 NY Slip Op 50044(U) [22 Misc 3d 128(A)]
Decided on January 9, 2009
Appellate Term, Second Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected in part through February 24, 2009; it will not be
published in the printed Official Reports.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP v Tsafatinos
Decided on January 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., RIOS and STEINHARDT, JJ
2008-61 K C.
Wilson, Elser, Moskowitz, Edelman and Dicker, LLP, Respondent,
Matina Tsafatinos, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter
Paul Sweeney, J.), entered June 6, 2007. The judgment, after a nonjury trial, awarded plaintiff the
principal sum of $7,060.65 and implicitly dismissed defendant's counterclaims.
Judgment affirmed without costs.
Plaintiff law firm brought the instant action to recover unpaid attorney's fees from defendant, a former client. The firm sought recovery based on breach of a retainer agreement as well as on an account stated. Defendant counterclaimed, seeking, inter alia, return of the $7,500 retainer, claiming that said amount was supposed to have been held in escrow and used towards an appeal. She also alleged that plaintiff acted willfully and maliciously by fraudulently inducing her to enter into the retainer agreement, and sought punitive damages.
The evidence at trial established that the parties had entered into a retainer agreement which set forth the scope of plaintiff's representation and the hourly rates which defendant would be charged. According to its terms, plaintiff was to review the record of an arbitration hearing, which had resulted in an award adverse to defendant's husband and his corporation, and the subsequent confirmation of the award, in order to determine whether grounds existed for an appeal. Defendant paid plaintiff an initial retainer of $7,500. After reviewing the substantial record and performing research on the applicable law, plaintiff drafted a 12-page memorandum which concluded that there were no viable grounds for an appeal. Plaintiff billed defendant a total of $14,560.65, and periodically sent itemized invoices to defendant. As of August 26, 2005, defendant owed plaintiff a balance of $7,060.65. The trial court, concluding that defendant had breached the retainer agreement, awarded judgment in favor of plaintiff in the principal sum of $7,060.65 and implicitly dismissed defendant's counterclaims. [*2]
As a matter of public policy, courts will give particular
scrutiny to fee arrangements between attorneys and their clients, casting the burden on attorneys
who have drafted the retainer agreements to show that the contracts are fair, reasonable, and fully
known and understood by their clients (see Shaw v Manufacturers Hanover Trust Co., 68
NY2d 172, 176 ). Plaintiff herein met that burden. The terms of the retainer agreement
clearly and unambiguously set forth the scope of plaintiff's representation, which was limited to a
determination as to whether there was a viable basis for an appeal. The agreement was signed by
defendant, in her individual
capacity, which indicated her assent thereto. Plaintiff also established that legal services were performed for defendant and that itemized statements indicating the nature of those services and the amount of time expended for such services were sent to defendant, who did not deny having received the statements. Although defendant contends that the legal services and charges were outside the scope of the retainer agreement and were not reasonable, the evidence at trial belies this allegation. Moreover, the agreement spelled out how counsel fees were to be determined, and such fees are measured by the terms of the agreement. Consequently, plaintiff is entitled to recover the agreed reasonable value of its services (see McAcoy v Schramme, 238 App Div 225 , affd 263 NY 548 ). Accordingly, the judgment is affirmed.
Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 09, 2009