Fishkin v Taras

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Fishkin v Taras 2006 NY Slip Op 30646(U) November 30, 2006 Supreme Court, New York County Docket Number: 600989/02 Judge: Carol R. Edmead Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. UED ON 121512006 [* 1] -v- / MOTION CAL. NO. /oms, The following papers, numbered 1 to were read on this motion to/for PAPER$ NUMBCRED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replylng Affidavits Cross-Motion: @ Yes 0 No Upon the foregoing papers, it ia ordered that thla motion In accordance with the accompanying Memorandum Decision, it is hereby ORDERED that Defendants motion for summary judgment dismissing the complaint in s entirety is granted, and the cornplaint is dismissed; and it is further ORDERED that the Plaintiffs cross-motion to compel discovery is denied; and it is irther ORDERED that the Clerk enter judgment accordingly; and it is further ORDERED that Defendants serve a copy of this order with notice d i e s within 20 days of entry. Dated: HON= CAROL EDMEAD Check one: FINAL DISPOSITION Check if appropriate: J. S. C. 0 NON-FINAL DISPOSITION 0 DONOTPOST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 _________-r------____I__________________----------------------- ---------- X HOWARD FISHKIN and MARTIN MARLOW, Index No. 600989/2002 Plaintiffs, -against- DECISION/ORDER BERT TARAS and BERT TARAS, P.C., II Defendants. ________---------_ ______tr___________l_----- ---------------------------X HON. CAROL ROBINSON EDMEAD, J.S.C. @ 3 20 C 06 C%&$QV IMORANDIJ 0F DECISION M 44 bo%? Before this court is the motion of Defendants in the above-captioned action for summary judgment pursuant to CPLR 3212 and Plaintiffs cross-motion to compel discovery. For the reasons set forth below, the motion is granted and the cross-motion is denied. BACKGROUND The above-captioned action was commenced on March 12,2002. It is a fee dispute between attorneys in which Howard Fishkin and Martin Marlow ( Plaintiffs ) claim that they were allegedly hired, as outside counsel, by Bert Taras and Bert Taras, P.C. ( Defendants ) pursuant to an oral agreement to render legal services on personal injury cases in which Defendants were retained by the client on a contingency fee basis. The verified complaint contains nine (9) causes of action against Defendants, one for each personal injury case in which non-payment of legal fees is claimed, Fishkin claims non-payment in of fees in all nine (9) cases and Marlow claims non-payment in the first three (3) cases. Plaintiffs demand judgment against I Plaintiffs have filed separate opposition papers to Defendants motion for summary judgment. As such, the court will take their arguments in turn. Any reference to Plaintiffs refers to joint filings and any reference to Fishkin or Marlow refers to their individual filings. I [* 3] Defendants as follows: a. On the first (L Brooks )cause of action in the sum of $153,000; b. On the second ( Colon ) cause of action in the sum of $30,000; c. On the third ( McClusky ) cause of action in the s u m of $10,300; d. On the fourth ( Mishko ) cause of action in the sum of $41,600; e. On the fifth ( Brown ) cause of action in the sum of $7,400; f. On the sixth ( Petri ) cause of action in the sum of $13,200; g. On the seventh ( Quarto ) cause of action in the sum of $32,400; h. On the eighth (L Gmcarz ) cause of action in the s u m of $16,800; i. On the ninth ( Kley ) cause of action in the sum of $4,333. Defendants move pursuant to CPLR 3212 for summary judgment dismissing the complaint in its entirety on the grounds that: (1) Plaintiffs failed to file retainer statements in all of their causes of action pursuant to 22 N.Y.C.R.R. 6 603.7(a)(3), which precludes them from recovering any legal fees herein; (2) Marlow lacks standing to sue for breach of contract on the first ( Brooks ), second ( Colon ), and third ( McClusky ) causes of action and has thus, failed to state a cause of action; (3) Fishkin lacks standing to sue for breach of contract on the fourth ( Mishko ) and fifth ( Brown ) causes of action and thus, failed to state a cause of action; (4) Fishkin is not entitled to seek relief based on quantum meruit in the sixth (LLPetri ), seventh ( Quarto ), and eighth ( Gancarz ) causes of action and thus, failed to state a cause of action; ( 5 ) Fishkin is not entitled to seek relief on the eighth ( Gancarz ) cause of action because under the parties agreement, he is not entitled to legal fees on cases that are not successfully completed. 2 [* 4] ~ - . - __ . DISC~IOIy To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR 3212 [b]). It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action ... has no merit (CPLR 32 12 p]) suficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire s Hosp., 82 NY2d 738,739 [1993]; Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v NationalAmusements, Inc., 2003 N.Y. Slip Op. 51390(U) [Sup. Ct. New York County, Oct. 21,20031). This standard requires that the proponent of a motion for summary judgment make aprima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1, 853 [ 19851; Zuckrman v City o New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d f Dept 20021). 230,762 NYS2d 386 [lntDept 20031; Thomas v Holzberg, 300 AD2d 10, 11, [lXt Thus, the motion must be supported by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions (CPLR 3212 [b]). A party can prove aprimafucie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities Inc. v Rovello, 262 AD2d 172 [ 1 Dept 19991). Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR 3212 [b]). Thus, where the proponent of the motion makes aprima facie showing of entitlement to summary judgment, the burden [* 5] _- - - - ..- --- shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Verrnette v Kenworth Truck Co., 68 NY2d 714,717 [1986]; Zuckerman, supra, 49 NY2d at 560, 562; Forrest v Jewish Guildfor the Blind,309 AD2d 546 [15t Dept 20031). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Sw@ v Steward M Muller Constr. Co, 46 NY2d 276,28 1-82, [ 19781; Fried v Bower & Gardner, 46 NY2d 765, 767 [ 19781;Platzman v American Totalisator Co.,45 NY2d 910, 912 [1978]; Mullad Const. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285,290, [ 19731; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347 [ l Dept 19981). 1. Retainer Statement Defendants argue that they are entitled to summary judgment because Plaintiffs did not file retainer statements with the New York State Office of Court Administration ( OCA ) as required by 22 N.Y.C.R.R. Q 603.7(a)(3) and, thus,are not entitled to payment of legal fees. In Plaintiffs response to Defendants interrogatories, Plaintiffs maintain that the filing of a retainer statement is not a condition precedent to receiving a legal fee (Q. 4-5). Yet, in response to the motion, Marlow contends that retainer statements were filed in all three causes of action to which he is a party, namely the Brooks, Colon, and McClosky matters. And, Fishkin now concedes that he was required to file retainer statements for the cases in which Defendants retained him (Opp. 73). As such, Fishkin maintains that he filed retainer statements in five of the 4 [* 6] . . . . - . - nine causes of action, namely, the-first ( Brooks ), second ( Colon ), third ( McClusky ), seventh ( Quarto ), and ninth ( Kley ) causes of action, and that retainer statements were not filed in the remaining four causes of action because Defendants did not advise him of the filing of their retainer statements or code numbers. The Appellate Division in each Department is authorized to promulgate rules regarding the conduct of attorneys and law firms (22 N.Y.C.R.R. QQ 603.1 et seq,). Accordingly, the First Department regulates contingent fee arrangements concerning actions for personal injuries, property damage, wrongful death, loss of services resulting from personal injuries, and claims in connection with condemnation or change of grade proceedings (22 N.Y.C.R.R. 5 603.7). Under An attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with [OCA] a written statement of such retainer in the manner and form as [set forth in subsection (a)(2)], which statement shall also contain particulars as to the fee arrangement, the type of services to be rendered in the matter, the code number assigned to the statement of retainer filed by the retaining attorney and the date when said statement of retainer was filed. Thus, pursuant to the rules of the First Department, an attorney who is retained by another attorney on a contingency fee basis in a personal injury action must file a retainer statement with OCA within 15 days of being retained. The purpose of requiring the filing of retainer statements in the aforementioned actions is to protect the public from excessive and unconscionable agreements (1B Carmody-Wait 2d Q 3:429). Similar rules concerning contingent fees have been promulgated by the Second Department (22 N.Y.C.R.R. 5 691.20); the Third Department (22 N.Y.C.R.R. 5 806.13); and the Fourth Department (22 N.Y.C.R.R. 9 1022.31). 5 [* 7] Additionally, this is not a new rule with which members of the bar may not yet be familiar. Courts have held that the failure of an attorney [or f r ] file a retainer statement i mto pursuant to 6 603.7(a)(3) is grounds for rejecting that attorney s [or firm s] claim for a share of the ultimate fee (see Rubinowitz v Cousins, 219 AD2d 487,487 [ 1st Dept 19951; see also Klein Calderoni & Suntucci, LLP v Bazerjian, 800 NYS2d 348,348 [NY Sup Ct 20051; 7 N.Y. Jur. 2d Attorneys at Law § 213). Additionally, the Court notes that 5 603.7(a)(3) is silent as to an attorney s ability to cure. Moreover, a violation of the appellate division rules has been held to be a violation of the rules of professional conduct subjecting attorneys to a range of punishments Dept 20061; In re Schmsll, 27 from censure to disbarment (see In re Aranda, 32 AD3d 5 8 [lst AD3d 24 [Ist Dept 20061 [attorney disbarred for, among other things, failing to file retainer statements pursuant to 22 N.Y.C.R.R. 5 603.71; In re Lenoir, 287 AD2d 343 [lSt 20011; Dept Matter of Wright, 110 AD2d 274 [ lutDept 19851 [attorney disbarred for, among other things, failing to file retainer statements pursuant to 22 N.Y.C.R.R. 8 603.71;Aponte v Raychuck, 140 Misc 2d 864, 868 [Sup Ct New York County 19881, affd. 559 NYS2d 255 [stating that the appellate division may find a violation of the rules of professional conduct where an attorney has violated the appellate division s rules]; Matter ofluskorski, 630 NYS2d 561 [2d Dept 19953 [attorney suspended from the practice of law for, among other things, failing to prepare retainer statement for filing with OCA in a personal injury case pursuant to 22 N.Y.C.R.R. 6 691.201; Matter ofBenjamin, 61 1 NYS2d 258 [2d Dept. 19941 [attorney who failed to file certain retainer See 22 N.Y.C.R.R. 5 603.7 Historical Note: Sec. repealed, new filed Fob. 18, 1975; amds. filed: Nov. 10, 1977; Jan, 13, 1987; June 29, 1989; June 24, 1993; March 27, 1995; May 6, 1998; July 6,2004; Nov. 1,2004 eff. Nov, 1, 2004. Amended (a)(2), (b)(2). 6 [* 8] statements with OCA was guilty of serious professional misconduct]; Matter of Kuriakose, 576 N.Y.S.2d 293 [2d Dept. 19911 [attorney s failure to file retainer statement with OCA for personal injury action he was retained to handle as required by 22 N.Y.C.R.R. Q 691.20, among others charges, supported disbarment]; see also Ethics for Personal Injury and Mass Tort Lawyers, 90 PLI/NY 145 [2000]). It is a well-settled principle in New York that rules and regulations designed to protect the public should be strictly enforced (Rabinowitz v Cousins,219 AD2d 487, supra [stating that the primary purpose of 22 NYCRR 603.7 is protection of the public]). Upon a plain reading of 6 603.7(a)(3) it is apparent that the ultimate burden is on the attorney being retained to take all necessary steps in order to comply with the rule. The language, [aln attorney retained by .,, shall, within 15 days from the date of such retainer, sign personally and file with [OCA], ,. makes it abundantly clear that Plaintiffs, not another attorney, on a contingent fee basis, Defendants, had an affirmative duty to act. The submissions indicate that Fishkin filed retainer statements in the Brooks (first cause of action), Colon (second cause of action), and McClusky (third cause of action) matters. Unlike these Brooks, Colon and McClusky matters, however, the retainer statement relating to the Kley (ninth cause of action) matter does not bear any filing stamp from OCA. And, Fishkin failed to submit any evidence indicating that a retainer statement in support of the Quarto (seventh cause of action) matter was filed. Of the Brooks, Colon, and McClusky matters for which retainer statements were filed by Fishkin, none were filed within the 15-day period as required by 5 603.7(a)(3). The amended retainer statement in the Brooks matter, the retainer statement and the amended retainer statement in the Colon matter, as well as the retainer statements in the 7 1~ [* 9] McClusky matter, were all filed several years after Plaintiffs commenced the within action. Notably, the amended retainer statements in the Brooks and Colon matters, as well as the retainer statement in the third McClusky matter were all filed on June 14,2006, after Defendants instant motion for summary judgment was filed. Fishkin fails to offer any explanation for the late filings, other than to say that he misinterpreted the law (Opp. 3). However, such excuse is belied by the fact that a retainer statement was filed in the Brooks cause of action on October 3 1, 1994, thereby evidencing Fishkin s awareness of the rule. The subsequent filings nunc pro tunc demonstrate a disregard for the Appellate Division s rules and quite simply, sloppy lawyering. Thus, since retainer statements were not timely filed in the Brooks, Colon, and McClusky matters and in light of the absence of any proof that retainer statements were timely filed in connection with the Quarto and Kley matters, the first, second, third, seventh, and ninth causes of action may pot be maintained. Furthermore, Fishkin did not address whether he filed retainer statements in the fourth ( Mishko ), fifth ( Brown ), sixth (( Petri ), and eighth ( Gancarz ) causes of action. Rather, in a subsequent cross-motion to compel discovery, Fishkin conceded that he did not file retainer statements in those causes of action (Cross Mtn. 2). He maintains that his failure to file was because Defendants did not advise him that they filed retainer statements [pursuant to 5 603.7(a)( l)] or provide him with the retainer code numbers (Cross Mtn. 2). However, Fishkin neither alleges that he sought this information when his association with Defendants began, nor that Defendants refused to provide it during the course of the association. Rather, Fishkin alleges that this information has not been provided during discovery in the instant case (Cross Mtn. 2-3). Defendants deny this and maintain that all records have been provided to and copied by Plaintiffs 8 [* 10] (Affirmation in Opp. to Cross Mtn.). The issue of whether Defendants have complied with discovery is irrelevant k Fishkin was required to file retainer statements within 15 days of being retained by Defendants. It was incumbent upon Fishkin to obtain the necessary information from Defendants, the clients, or by an order of the court when the association with Defendants began. As to the fourth ( Mishko ), fifth ( Brown ), sixth ( Petri )), and eighth ( Gancarz ) causes of action, Fishkin has not alleged facts to indicate that he attempted to comply with the First Department s rules prior to the start of the instant litigation. Thus, in light of the absence of any proof that retainer statements were timely filed in connection with the Mishko, Brown, Petri, and Gancarz matters, the fourth, fifth, sixth, and eighth causes of action may not be maintained. The following chart represents the Court s findings for matters in which Fishkin w s a retained by Defendants and when the retainer statements were filed by Fishkin. 1. Brooks Date Retained by Date Retainer Known Code Defendants Cause of Action Statement wa9 Filed Numbers October 3 1, 1994 March 1993 3966522 (original (amended June 14,2006 filing number) to include Marlow) 3 159833 (amended filing number) 2. Colon March 1993 * July 29, 2005 (amended June 14,2006 to include Marlow) 3. McClusky March 1993 3 159832 (amended filing number) * June 14,2006 9 I3159831 [* 11] 4.Mishko Februaw 1994 5. Brown November 1994 . . 6. Petri 7. Quarto July 1999 July 1993 - ~ 8. Gancarz Not filed I I I Not filed I +Not filed I I July 1993 9. Kley - 1 1 July 1994 Not filed Not filed * July 29,2005 Not provided (allegedly) see Verified Complaint 1-17 Complaint 1-17 * see Opp. Exhibit A see Verified I See Opp. Exhibit A see opp. 2 Similarly, Marlow states that he has filed retainer statements in the first ( Brooks ), second ( Colon ), and third ( McClusky ) causes of action, yet he provides no documentary evidence of such filings or indications of when such filings took place (Marlow Opp. 74). Notably, the retainer code numbers that he provides are within the same sequence of retainer code numbers issued to Fishkin on June 14, 2006.4 Since the Court concludes that Fishkin did not timely file retainer statements for the causes of action to which Marlow is a party, it may be reasonably inferred that Marlow s filings were also untimely since they appear to be so close sequentially to Fishkin s filings. Although not cited by Plaintiffs, Matter o Estate ofAbreu, (168 Misc2d 229 [Surrogate f Court Bronx County 19961) provides an instance where the untimely filing of retainer statements did not preclude a claim for attorneys fees. In Abreu, a fee dispute between attorneys centered on the objectant s failure to timely file a retainer statement in the case. In one instance, the Fishkin: Brooks (3 159833); Colon (3 159832); McClosky (3159831) Marlow: Brooks (3 159830); Colon (3 159828); McClosky (3 159829) 10 [* 12] objectant filed the retainer statement at least three months late, and in another instance, six years after the objectant discovered that it was inadvertently placed in the case s litigation file instead of being mailed to OCA. The court held this was a reasonable excuse for the late filing (Abreu, 168 Misc 2d at 234). Relying on CPLR 2004, the court reasoned that it had the discretion except where otherwise prescribed by law ... (to) extend the time fixed by any ... rule ... upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed. Further, the court cited to CPLR 2005, which provides that law office failure may be a justifiable excuse for delay in an appropriate case, and noted that the retainer statement filing requirements are not interpreted as creating a rigid statute of limitations. The Surrogate Court expressly distinguished Rabinowitz v Cousins, supra, stating that counsel had not been suspended from practicing law, filed a retainer statement prior to the hearing date of its claim for a fee, and it has established a justgable excuse for the failure to tirnelyfile (emphasis added), in that the failure to timely file the retainer statement resulted from an inadvertent placement of the retainer statement in its litigation file instead of being mailed. No similar excuse is provided herein. While it is understandable that mistakes happen and documents can be misplaced, the instant case is entirely dissimilar than Abreu. In the instant case, Plaintiffs never plead any sort of mistake or error, and failed to establish any good cause for failing to timely file the retainer statements. Rather, the submissions indicate a neglect to comply with the regulatory scheme set in place to monitor the legal profession. As such, the court recognizes no basis to apply the exception provided in A breu beyond its own unique circumstances to the matter at hand. 11 [* 13] CONCLUSION Plaintiffs do not provide an adequate explanation for their failure to conform to the First Department s rules. Nor do Plaintiffs contend that acceptance of the late filings by OCA constituted an administrative determination that such retainer statements could be filed nunc pro tunc. Plaintiffs failure to file the retainer statements timely is inexcusable. In light of the above, the Court does not reach Defendants remaining arguments for summary judgment. Accordingly, Defendants motion for summary judgment dismissing the complaint is granted, and Plaintiffs cross-motion is denied as moot. Based on the foregoing, it is hereby ORDERED that Defendants motion for summary judgment dismissing the complaint in its entirety is granted as to all of Plaintiffs causes of action, and the complaint is dismissed; and it is further ORDERED that Plaintiffs cross-motion to compel discovery is denied; and it is further ORDERED that the Clerk enter judgment accordingly; and it is hrther ORDERED that Defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry. This constitutes the decision and order of the Court. Dated: November 30,

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