Felix v Law Off. of Thomas F. Liotti

[*1] Felix v Law Off. of Thomas F. Liotti 2009 NY Slip Op 52490(U) [25 Misc 3d 1239(A)] Decided on October 28, 2009 Supreme Court, Nassau County Lally, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 28, 2009
Supreme Court, Nassau County

Donald Felix, Plaintiff(s),

against

Law Office of Thomas F. Liotti, Defendant(s).



8395/07



DONALD FELIX, pro se

Plaintiff

THOMAS LIOTTI

Defendant

pro se

Ute W. Lally, J.

Plaintiff had retained defendant on May 28, 2002 to represent him in certain criminal matters and discharged him on February 8, 2006.

By order of this court (Diamond, J., June 30, 2008) plaintiff was granted summary judgment for defendant's breach of the retainer agreement (Exh. 1). By further order of the court (Diamond, J., June 23, 2009) an assessment of damages trial was directed to be held to determine the damages due to plaintiff.

Plaintiff is currently incarcerated at Greenhaven Correctional Facility and was produced for said trial which was held on October 27, 2009.

The Fee Agreement between the parties dated May 28, 2002 provided, in pertinent part:

"Representation of DONALD FELIX concerning a 330 Motion in [*2]Nassau County, preparation of presentence memorandum; attendance at sentencing and filing of Notice of Appeal. I will also represent the client in filing an appeal in Kings County and one in Nassau County and file a 440 Motion in Kings County. This retainer does not include appeals.

1.Fee for Trial Level Representation: Our fee for handling the above work in Nassau County is $5,000.00 and our fee for handling the 440 Motion and 2 appeals, one in Kings County and one in Nassau County is $20,000.00, which fee shall be deemed earned upon payment."

The agreement was signed by Rufina Felix (plaintiff's mother) for Donald Felix. It is undisputed that defendant was paid the sum of $25,000.00.

On February 8, 2006 plaintiff mailed a letter of discharge to defendant (Exh. 2) citing dissatisfaction with defendant's services, such as delay, punctuality, failure to provide promised services in a timely fashion and requested a refund of unearned funds paid.

It has already been determined by the order of Justice Diamond dated June 30, 2008 that defendant failed to file a CPL 440 motion as promised in the retainer. Further, in said decision Justice Diamond stated that "the letters attached to defendant's motion to reargue as exhibits that were allegedly received from plaintiff do not indicate plaintiff's consent to ignore the filing of the CPL 440 motion that defendant was retained to prepare and submit to the court."

Plaintiff further claims that defendant failed to file the Nassau County appeal provided for in the Retainer Agreement. Defendant asserts that the Nassau County brief was filed before discharge and submits a copy of the brief showing a date of January 23, 2006 (Exh. F). However, said brief was not served upon the Nassau County District Attorney's office until March 1, 2006 and caused the District Attorney to cross-move the Appellate Division, 2nd Dept. for an order striking said brief as "filed by an attorney who does not represent defendant" (Exh. 7).

Plaintiff seeks a refund of $20,000.00 (see complaint, Exh. [*3]5) arguing that defendant forfeited his entire fee due to his discharge for cause.

At trial plaintiff requested treble damages pursuant to Judiciary Law §487 claiming that defendant deceived this court and committed perjury in claiming to have filed a CPL 440 motion and thus forcing the court (Diamond, J.) to order the Kings County Supreme Court file (People v Felix, No. 9425/98) and conduct an inspection of same and thereafter making a determination that plaintiff was correct in stating that no CPL 440 motion was filed by defendant. Since plaintiff failed to make such a demand in his pleadings the request is denied as untimely.

Based upon the testimony of plaintiff and defendant and the exhibits the court finds that defendant was discharged for cause on February 8, 2006, and that defendant attempted to file the Nassau County brief on March 1, 2006, although dated January 23, 2006, thirty-five days after discharge.

A client has the absolute right to discharge an attorney at any time with or without cause (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38; Byrne v Leblond, 25 AD3D 640).

Where the discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services he rendered. However, if the discharge is for cause the attorney has no right to compensation, notwithstanding a retainer agreement (Cheng v Modansky Leasing Co., Inc., 73 NY2d 454; Teichner v W & J Holsteins, Inc., 64 NY2d 977; Crowley v Wolf, 281 NY 59; In the Matter of Terijon Weitling, 266 NY 184).

Here the retainer agreement was for a flat fee. Notably, it specifically stated in paragraph 2: "It is understood that we are not entering into an hourly rate contract, and will not bill on such basis."

Although an attorney discharged for cause is not entitled to any fees, here plaintiff requested in his discharge notice that "all unearned funds be refunded to Rufina Felix promptly (Exh. 2).

Consequently, since the fee agreement had provided for a [*4]flat fee of $20,000.00 for two Appellate briefs and one CPL 440 motion, and defendant performed work for only one brief, plaintiff is entitled to a refund of two-thirds of said $20,000.00, to wit $13,333.34.

Judgment is hereby granted in favor of plaintiff Donald Felix and against defendant Law Office of Thomas F. Liotti in the sum of $13,333.34, with interest at the statutory rate from February 8, 2006 together with costs and disbursements of this action.

This constitutes the decision and judgment of the court pursuant to CPLR 4213(b).

Dated: ______________ ________________________________

J.S.C.