Nadelman v Goldman
Annotate this CaseDecided on March 22, 2005
Civil Court of the City of New York, New York County
RICHARD NADELMAN, Plaintiff,
against
A. BRUCE GOLDMAN, Defendant.
47870/03
Jeffrey K. Oing, J.
In this action to recover for legal services rendered, defendant, A. Bruce Goldman, moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint, and, pursuant to 22 NYCRR 130-1.1, for an award of attorney's fees, costs, and an imposition of sanctions.
Background
Plaintiff attorney, proceeding pro se, and defendant were neighbors in a Manhattan apartment building located at 440 Riverside Drive (the "building") during the period from 1979 to 1996 (Nadelman Affirm., ¶ 5). On December 30, 2002, defendant called plaintiff at home and asked if he would testify on defendant's behalf in connection with a dispute he was having with the building's co-op board, 440 Riverside Owners Corp. (the "board") (Id., ¶ 6). Defendant's dispute concerned the board's failure to provide him with heat, and its refusal to furnish a recognition agreement, a maintenance letter, and an insurance certificate so that he could refinance his co-op loan (Id.). Plaintiff told defendant that because the apartment [*2]corporation had been his client for many years he would not be comfortable testifying against the board in any kind of proceeding, and that he believed it might be a violation of professional ethics (Id.). After declining to testify for defendant, plaintiff offered to facilitate a resolution of the dispute for him as a courtesy (Id., ¶ 7). Plaintiff contends that he did not expect to spend more than a few hours assisting defendant in the matter because defendant had other representation (Id.).
For the next eight business days, plaintiff expended time and effort on defendant's behalf which resulted in obtaining a letter from a board member on January 10, 2003 (Id., ¶ 8). The letter, written by board member Edward A. Kent, set forth a proposed agreement between defendant and the board (See, Opp'n Papers, Ex. 3). Defendant rejected the terms of the board's offer (Nadelman Affirm., ¶ 8).
Up to January 10, 2003, plaintiff invested about twelve hours assisting defendant at no charge (Id.). After defendant rejected the terms of the board's offer, plaintiff allegedly told defendant that if he were to continue assisting defendant he must be paid $250 per hour for future services (Id.). Plaintiff claims that defendant told him that he did not expect him to render his services without charge, and that defendant agreed to pay him the rate of $250 per hour for all services rendered thereafter (Id.).
Plaintiff provided defendant with an itemized bill, dated February 28, 2003, on March 3, 2003, and again on May 8, 2003 and July 16, 2003 (Id., ¶ 2). Plaintiff's bill for "[s]ervices rendered, re 440 Riverside Owners Corp. and loan refinancing: December 30, 2002 through February 11, 2003," lists the services plaintiff claims to have rendered and shows an amount of $4,000 (Moving Papers, Ex. B).
Defendant does not dispute that he sought assistance from plaintiff. He maintains, however, that he never had a conversation with plaintiff whereby plaintiff told him that if he was to continue providing services to defendant he must be paid $250 per hour (Goldman Aff., 1/11/05, ¶ 16 & 17). Instead, defendant contends that he "believed that he [plaintiff] was doing this for me as a mitzvah, an act of compassion" (Id., ¶ 13).
Discussion
22 NYCRR § 1215.1(a) provides that an attorney who "undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation". Section 1215.1(c) provides that instead of the written letter of engagement an attorney may comply with [*3]1215.1(a) by entering into a signed written retainer agreement with the client before or within a reasonable time after commencing representation.
Here, plaintiff does not dispute that he did not provide defendant with a written letter of engagement or a written retainer agreement (Nadelman Affirm., ¶ 4). Nor does he offer an excuse for noncompliance. As such, plaintiff did not comply with section 1215.1, and the resulting consequence is that plaintiff is precluded from seeking his attorney's fees (Klein Calderoni & Santucci, LLP v Bazerjian, 2005 NY Mic. LEXIS 375 [Sup Ct, Bronx County 2005]).
Plaintiff argues that section 1215.1 does not preclude an award for services rendered based on quantum meruit and relies on In the Matter of the Estate of Carmela Feroleto, 2004 NY Misc LEXIS 2496 (Surrogate's Court, NY County 2004). That reliance is misplaced because the facts in that case are distinguishable from the instant matter. There, the attorney mailed a retainer agreement to the client, but the agreement was never signed. The client ultimately disputed the amount the attorney was charging for legal services. The client, however, conceded that she knew her counsel was to be compensated for his services. Given that the client conceded that the attorney should be compensated, and that the attorney's noncompliance was unintentional, the Surrogate Court permitted recovery based on a claim of quantum meruit. Here, nothing in the record demonstrates that noncompliance was unintentional. In addition, the record is clear that defendant disputes his liability to plaintiff for legal services.
Contrary to plaintiff's argument, the facts herein compel this Court to find that a claim based quantum meruit cannot be maintained in the face of an intentional noncompliance. If such a claim were recognized, then the purpose of section 1215.1 would be thwarted in the sense that noncompliance would engender no penalty. That would render section 1215.1 meaningless, a result that this Court finds untenable and without a legal basis.
Plaintiff next argues that he can maintain this action pursuant to section 1215.2 even though he has not complied with section 1215.1. That section provides in relevant part:
This section [22 NYCRR 1215.1] shall not apply to:
(a) representation of a client where the fee to be charged is expected to be less than $3,000.
Thus, in order to qualify for the exception to section 1215.1, there must be the expectation that the fee to be charged would be less than $3,000.
On that issue, plaintiff contends that when defendant allegedly agreed to pay him for legal services subsequent to [*4]January 10, 2003 plaintiff assumed that defendant would also continue using the services of his attorney, Kevin McConnell, Esq. (Nadelman Affirm., ¶ 8). Thus, plaintiff claims he did not anticipate that defendant would continue to call him on a daily basis through February 11, 2003 concerning retrieving documents to the extent that he would be required to comply with 22 NYCRR 1215.1. On the other hand, defendant contends that he never had a conversation with plaintiff whereby he agreed to pay for legal services.
Based on the foregoing, several factual issues exist. One issue is whether plaintiff ever had a conversation with defendant concerning the payment of legal fees. If not, then section 1215.2 is inapplicable given that there could be no expectation to charge a legal fee. As such, plaintiff would be precluded from recovering legal fees under section 1215.1. On the other hand, if that issue is resolved in favor of plaintiff, the next issue is whether plaintiff's expectation that "the fee to be charged is expected to be less than $3,000" was reasonable, particularly given that he expended twelve hours on this matter prior to January 10, 2003 and had to deal with defendant on virtually a "daily basis" through February 11, 2003. If not, section 1215.2's exception would not be applicable, and plaintiff would be precluded from recovering legal fees under section 1215.1. Of course, if plaintiff is not precluded, then he would still need to establish the basis for his legal fees.
Accordingly, defendant's motion for summary judgment is denied. That branch of defendant's motion seeking attorney's fees and sanctions is also denied. Upon service of this order on the appropriate Clerk, the Clerk is respectfully directed to schedule this matter for trial on the appropriate calendar, and to notify both sides of the trial date.
This memorandum opinion constitutes the decision and order of the Court.
Dated:
____________________________
HON. JEFFREY K. OING, C.C.J.
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