Cicero v Richard L. Rosen Law Firm, PLLC

[*1] Cicero v Richard L. Rosen Law Firm, PLLC 2012 NY Slip Op 51732(U) Decided on August 17, 2012 Civil Court Of The City Of New York, Richmond County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2012
Civil Court of the City of New York, Richmond County

Nicholas Cicero Sr., Plaintiff,

against

The Richard L. Rosen Law Firm, PLLC, Defendant.



CV-026272-08/RI



Plaintiff Pro-Se

Nicholas Cicero, Sr.

120 Home Place

Staten Island, NY 10314

7246 Mendell Way

Melbourne, Fl 32940

Defendant Pro-Se

The Richard Rosen Law Firm, PLLC

110 East 59th Street

New York, NY 10022

Katherine A. Levine, J.

Plaintiff Nicholas Cicero, Sr. ("Cicero " or "plaintiff") brings this action to recover the amount of $25,000.00, with interest, from defendant The Richard L. Rosen Law Firm, PLLC ("defendant"or "Rosen ")[FN1] - based upon defendant's alleged breach of contract or warranty and failure to provide proper legal services. As is bluntly set forth in one of plaintiff's submissions, the Rosen Law firm allegedly "misdirected " his case, charged "exorbitant fees" without filing any legal papers or a notice of appearance, [and] billed him $3,652.50 to review his file before he even signed a retainer agreement.

Defendant counterclaims for $18,484.25, together with costs and interest, which represents the amount of money that Cicero allegedly owes them for actual time spent working [*2]on plaintiff's case plus costs and fees. Rosen avers that plaintiff's failure to pay the bills constitutes a breach of contract, and that the sum of $18,484.25 represents the fair and reasonable value of unpaid legal services provided to plaintiff.

The trial was long and acrimonious between the parties. While both parties refer to this matter as "a simple fee dispute," the trial morphed into anything but a simple trial. Exhaustive testimony was given, and voluminous exhibits were tendered about the underlying federal court proceeding Cicero Service Station Inc. v. Sunoco, Inc. ( E.D.NY 04- VY-2186) ("Sunoco federal case") before the Hon. Eric Vitaliano and state court proceeding, Cicero Center and Forest Ave Inc. v. Sunoco Inc., et al ( Sup. Ct. Richmond Co. Index No. 10756/02). Both cases resulted in a global settlement entered into on March 29, 2007 before Judge Vitaliano ("global settlement"). A considerable amount of testimony (and exhibits ) was introduced pertaining to Cicero's complaints and the defendant's response to both the Legal Referral Service Committee of the Association of the Bar of the City of NY ("LRS") and Disciplinary Committee of the Appellate Division, First Department. The delays were caused in large party by plaintiff's residing in Florida during the colder months and endless disputes between the parties on the record. The disputes and the court's admonitions to plaintiff to cease relitigating or readdressing issues previously raised, were amply addressed during the prolonged trial and will not be reiterated herein.[FN2] While plaintiff posited himself before the court as a pro se litigant unversed in the twists and turns of the law, and his in court presentations at time were rambling, his written submissions were quite clear and cogently written.

Background Facts

This litigation has its genesis in the global settlement that plaintiff entered into on March 29, 2007 in the Sunoco federal case. According to plaintiff, the franchise and access agreement submitted by attorney Dan Abrams, on behalf of Cicero Service Station ("CSC"), which was owned by plaintiff's estranged sons, and Sunoco's attorneys was "unenforceable" and fraudulently obtained since plaintiff, as property owner of CSC under the name of Forest Avenue Corp. ("Forest"), never consented to said agreement. Cicero contended that the "opposing attorneys" fraudulently changed the language and dates of section 1.08 of a franchise agreement to mislead CSC "into believing that a good faith franchise agreement had been reached between CSC and Sunoco."

In a September 17th letter, Cicero expounded that while he, as property owner, did not have to sign an owner's consent to validate a franchise agreement, his sons did and that Abrams and Sunoco, knowing that Cicero would never consent, "fraudulently changed the wording" of the franchise agreement to make it appear that CSC had represented to Sunoco that they had [*3]obtained Cicero's consent. Cicero further alleged that his sons never provided Sunoco with an owner's consent letter or represented that CSC controls the premises by way of a lease. Cicero also contended that these attorneys engaged in a willful and deceitful act so as to prevent CSC from litigating the PMPA case under the protection of the Petroleum Marketing Practicing Acts (PMPA). Finally, since Sunoco did not have the legal authority to deliver gas to plaintiff's property, the settlement stipulation was null and void (Pl. Exhibit "17")[FN3].

Pursuant to plaintiff's inquiry, the New York State Bar [FN4] recommended Rosen as an expert in franchise law. Plaintiff claims he retained Rosen to file a motion to overturn the open court stipulation of settlement which the federal court had "unknowingly approved." Plaintiff spoke with Rosen over the phone from his home in Florida and Rosen then sent him a retainer agreement, dated May 25, 2007, for $15,000.00. Plaintiff claims that since he did not feel comfortable paying this amount without meeting the attorneys, he arranged to meet with Rosen and Salis on July 13, 2007, wherein he signed the agreement. The retainer agreement sets forth that the Rosen firm will represent plaintiff in connection with (i) reviewing various court case filings and documents pertaining to the court proceedings involving CSC and Sunoco, which Cicero will provide; (ii) performing legal research with respect to issues they deem pertinent to his concerns, "including issues relating to the possibility of attempting to set aside the settlement in the above referenced action which was reached in open court;" and (iii) preparation of a memorandum that assesses the merits of potential options including, attempting to set aside the settlement. The letter confirmed that Cicero agreed to pay a retainer of $15,000.00 "simultaneously with the execution" of said agreement, and that he would be billed on a monthly basis at $450 an hour (and $280 an hour for Mr. Salis). Hence, one of the major disputes between the parties from the inception of their relationship was what specific actions Rosen agreed to undertake on Cicero's behalf .

Both parties agree that Cicero told Rosen he did not feel comfortable signing the retainer agreement until he met with him. While Cicero claims he signed the retainer on June 25th (plaintiff's Ex. 40), it is clear he did not give Rosen the signed copy until July 11th when he met with Salis and Rosen for approximately 11 hours on July 11th and 13th. Rosen charged Cicero a total of $2812.50 for reviewing the file and discussing the case with either Cicero or Salis prior to meeting with Cicero on July 11th. Salis billed Cicero $70 for preparing the retainer letter. For [*4]the 10.50 hours that Rosen met with Cicero on July 11 and 13th, he charged Cicero $4725.00.[FN5]

Rosen then reviewed court transcripts, agreements and memos and discussed the case with Cicero over the phone. By e mail dated July 24, 2007, Cicero amplified upon the conditions that apply when Sunoco enters into a franchise relationship with a dealer who does not own the property but rather controls the premises by a lease namely that the dealers furnish the company with a properly executed owner's consent form. Cicero then described the history of his previous franchise agreement with Sunoco. By e mail dated July 26, Cicero thanked Rosen for the previous night's "productive phone session." The parties agreed that Rosen would send Sunoco a letter of intent to stop it from delivering gas to his location with its "inherently flawed delivery system that is conducive to spill." Cicero also wrote that Rosen must put Sunoco on notice that they are filing a motion to vacate the settlement stipulation and that Sunoco will not be comfortable with this because he has evidence to support his assertion that Sunoco conspired with Dan Abrams to fraudulently change the dates in the Dealer Franchise Agreement and the access agreement. He also spelled out his views as to why Sunoco feared the PMPA trial. (Plaintiff's "37"). Between July 21 and July 25th , Rosen charged Cicero $1,462.00 for review of records/documents and discussions with Cicero. Salis charged Cicero $140 for a preparation of a list of outstanding documents and $140 for review of a court transcript and, by e mail dated July 26th requested that Cicero forward to him or explain approximately 18 documents. (Def. "L"). Between July 26th and August 6th, Rosen billed Cicero for 8.25 hours ($3,712.50) for reviewing the case, speaking with Cicero and drafting a letter to Sunoco.

By email dated August 7, Cicero informed Rosen that their relationship has some "serious problems" and that he adamantly disagreed with Rosen's view that it would be very difficult to prove fraud so as to overturn the stipulation of settlement. Cicero questioned the draft of the letter to Sunoco that Rosen had prepared and why Rosen accused Sunoco of trespassing without legal rights when the Court s TRO gave Sunoco these rights until the PMPA litigation was resolved. On August 9, 2007, Rosen sent Sunoco a letter incorporating the corrections made by Cicero. Rosen wrote that the franchise agreement submitted to federal court "inaccurately and fraudulently made it appear that CSC controlled the premises by an underlying lease" when in fact neither Forest nor CSC made any representation to Sunoco about an underlying lease. Rosen demanded that Sunoco comply with its obligation to perform all remediation work and wrote that Forest would permit Sunoco access to the premises upon reasonable advance notice. Finally, Rosen advised Sunoco that he had been retained by Cicero to investigate his right and ability to "readdress" the validity of the Franchise agreement and "the [*5]issues that were purportedly resolved by the various parties...as part of two recent court decisions." (Defendant's "M"). Between August 7 and 9th, Rosen billed Cicero $1,800.00 for drafting the letter to Sunoco and discussing the letter with Cicero.

The dispute over fees commenced after Rosen sent Cicero a bill dated July 31, 2007, which indicated that out of the retainer of $15,000.00 Cicero only had a credit balance of $1,012.50. By e mail dated August 15, 2007, Cicero complained about the "unconscionable fees." He stated that Rosen's "exorbitant fees are not supported with even one documents [sic] that was produced or received on [his] behalf." He then queried why all of the subsequent reviews and conferences contained in the bill were necessary "after you charged me $3,652.00 to review my file before I signed a retainer agreement." Cicero also complained that the billing statement reflected over $10,000.00 in fees spent on strategy. However, it does not appear that Rosen ever responded in writing to the August 15th e mail.

Despite his initial complaint with the fee, Cicero continued to utilize Rosen's services through the beginning of October. Over the span of three months it is clear that Rosen wrote two letters to Sunoco (including the August 9th letter referred to above) and drafted an internal memo as to how to proceed on the Cicero case. Rosen also wrote numerous letters in rebuttal to Cicero's complaints about the way Rosen was handling the case.

Between August 9th and August 30th, Rosen billed $887.50 for discussions on strategy with either Cicero or Salis and or preparation. Rosen did not charge for his review of Cicero's August 15th email disputing the fees, or a phone discussion with Cicero.[FN6] On August 30, 2007, Rosen met with Cicero and billed him for five hours or $2,250.00. Salis billed Cicero $280.00 for preparation of a " "Preliminary Internal Memorandum" from Salis to Rosen ("internal memo") that was shown to Cicero during the August 30th meeting.

The two page internal memo lists the six grounds under Federal Rule 60(b) upon which a court may relieve a party from a final judgment order or proceeding, including 60(b)(1) - "mistake, inadvertence, surprise, or excusable neglect" and 60(b)(6) "any other reason justifying relief from the operation of the judgment. Salis notes that pursuant to his initial review of the case law (although Salis listed the name of only one case) that the courts will grant relief under 60(b)(6) "ONLY upon a showing of EXCEPTIONAL CIRCUMSTANCES." Salis then notes on page two that "thorough research into the law needs to be done" regarding legal standards and burdens" that will have to be overcome in setting aside the overall settlement (Defendant's "C"). Salis took 12 pages of notes, as well as putting notes on the internal memo, during defendant's meeting with Cicero on August 30th. [*6]

The relationship between Cicero and Rosen rapidly disintegrated in September 2007, when Cicero became angry after Sunoco failed to respond to Rosen's August 9th letter and Rosen failed to follow up with Sunoco. These problems are amplified in Cicero's December 24, 2007 letter to the LRS wherein he asserted that he was "ripped off" by Rosen for $15,000.00, that Rosen procrastinated in taking the necessary legal action to stop Sunoco from trespassing, and that after Rosen withdrew from representing him, Rosen invoiced him another $18,000.00 in undocumented mystery services."

By letter dated September 7, 2007, Rosen memorialized that Cicero had met with Salis that week to review files and determine which documentation was necessary to move the case forward and file a motion in federal in court. Rosen listed nine items that were still outstanding. He then addressed Cicero's e mails and indicated that before he could move forward with the case, Cicero "must recant his e - mails" and state that he is comfortable with and have confidence in Rosen acting as his counsel and "exercising discretion with respect to the strategic and legal decisions," and promptly pay the August bill.

By letter dated September 9, 2007, Cicero informed Rosen that he was "deeply troubled" by his September 7th email letter and with his "procrastination in handling the cases." He also indicated he was "outraged' by Rosen's"unconscionable " invoices totally $30,000.00 without a "shred of supporting documents." To that end, after months of dealing with the case, Rosen did not even have an outline of the draft for a motion to vacate a settlement. Cicero added that Rosen's fees were "greatly disproportionate to the services provided," and that during his perusal of his files on August 30th, he found only one letter that Rosen had written in his case. Cicero then listed four questions that "any litigator should have asked." He also rebutted Rosen's contention that he had indicated that he did not want Rosen to move along with the case. Nor was Cicero willing to "recant" his two previous letters.

Between September 4th and 11th, Rosen charged $675 to discuss or review a draft letter to Cicero. [FN7] Rosen then drafted a letter to Sunoco in response to two letters he had received from Sunoco for which he charged $900. Cicero sent back a two page e mail with comments on Rosen's draft. By letter dated September 12, 2007, Sunoco responded to Rosen's letter and indicated that Sunoco was implementing its environmental cleanup at the property.

By letter dated September 17, 2007, Cicero responded to Salis "draft letter' to Sunoco sent to Cicero on September 14th. Cicero expounded that attorney Dan Abrams had never discussed settlement with, or informed him beforehand that a settlement conference would be held before Judge Vitaliano on March 20, 2007, because Abrams knew he wanted to pursue the PMPA litigation to a conclusion.

On September 20, 2007, Rosen sent a four page letter to Sunoco for which he billed [*7]Cicero $1012.50 ( for work done on 9/14, 9/17 and 9/18)(Def."J").[FN8] In this letter, Rosen took Cicero's position that neither Forest nor CSC had made any representation to Sunoco that CSC has an underlying lease re the premises, and that the Dealer Supply Agreement entered into between Sunoco and CSC ("purported franchise agreement") inaccurately and fraudulently made it appear that CSC controlled the premises by an underlying lease. He also wrote that any subsequent renewal of the franchise agreement would have expired on December 31, 2006, hence making Sunoco a trespasser on the premises since January 1, 2007. Rosen then demanded that Sunoco immediately cease and desist from delivering gas to the premises and remove its property and loaned equipment from the premises. Finally, Forest would allow Sunoco to come on the premises for the limited purpose of performing the remediation /environmental work. Rosen concluded that there were many reasons and basis upon which to overturn the global settlement entered into in federal court on March 29, 2007, but that notwithstanding the above, Cicero was amenable to meeting with Sunoco to resolve the issues amicably.

The next day, Cicero emailed Rosen that his letter was "worthless" and that Rosen had to create a scenario which would prevent Sunoco from further procrastinating i.e. a lawsuit to immediately stop Sunoco from delivering gas to this location. From September 21th on, defendant discussed the case with Cicero over the phone, discussed the case internally as to how to deal with Cicero's "self help" actions, and drafted and revised letters to Cicero. Salis no longer charged for the time he spent discussing the case with Cicero over the phone or discussing the case with Rosen and only charged for drafts of letters that Rosen later revised.

By letter dated September 28, 2007, Rosen memorialized the disagreements that he was having with Cicero to date. Cicero had been expressing his frustrations with Sunoco's failure to answer Rosen's September 20th letter, and indicated that if Sunoco attempted to deliver gas to the station after October 1, 2007, he would call the police and try to charge Sunoco with trespassing. Rosen vehemently disagreed with Cicero exercising self help as it would have "serious negative consequences for his case to set aside the global settlement." Rosen spent six pages elaborating on this and other disagreements. He concluded by stating that he had no problem contacting Sunoco's senior counsel and asking him to respond expeditiously to Rosen's letter. However, Rosen needed Cicero to pledge not to call the police to prevent Sunoco from delivering gasoline. He added that to continue representing Cicero, they would need "primary responsibility for making the legal and strategic decisions in the case" and that he did not feel comfortable representing Cicero given his "continuous disregard and disparaging and questioning of their experience, strategies and advice." Rosen charged $1,012.50 (2 ½ billable hours) to draft this letter.

This letter generated a three page response by Cicero dated September 30, 2007, which began with the statement that "I cannot dignify with a response the baseless rhetoric and ad hominem" in the letter which contained assertions that were factually erroneous and misleading . Cicero accused Rosen of procrastination and dwelling on moot issues instead of going "to where [*8]the smoking gun of fraud leads you." Cicero complained about Rosen having to rewrite several drafts of his August 9th letter. He then complained that Rosen had not responded to Sunoco's letter in over two weeks and that Rosen failed to perform his "fiduciary duty" of representing his client with "zeal."

Rosen responded by writing Cicero two letters, both dated October 5, 2012. The first letter concerned a letter that Rosen received from Dan Abrams Esq. who wrote that "no responsible attorney would persist in making these allegations against him" and that he reserved his rights against both Cicero and Rosen "if these allegations are repeated." Based upon that assertion, Rosen informed Cicero that going forward they had to be "absolutely certain" that any allegations re Abrams are factual and based upon documentation and evidence. Rosen therefore requested ALL documentation, including copies of all court transcripts, in Cicero's possession concerning Abram's involvement in the case. Rosen indicated that his filing a motion to set aside the "global settlement" was predicated upon his receipt of many documents "most of which we have previously asked you for, and if we were to begin preparing the motion, we would undoubtedly need some additional documents." The letter then listed the emails and correspondence from Cicero that they already had in their possession.

The other October 5th letter, consisting of 10 pages, reiterated all the previous disagreements that had been festering between Cicero and Rosen, including Cicero's refusal to pay the invoices. Cicero's "repeated questioning and critiquing of our strategies, tactics and billings" etc. Rosen wrote that it was "illogical" for Cicero to contest everything they were doing yet still mandate that they continue doing additional work for him without being paid. As to Cicero's charge of procrastination, Rosen wrote that his case, from a factual standpoint, was very "complicated" and required an "in depth understanding and command of prior events;" a "full grasp" of the interactions and negotiations that occurred between the parties and counsel; and what exactly" occurred in court on March 29, 2007. After reiterating the need for more documentation, Rosen added that "when we actually start drafting the motion to set aside the global settlement" we will likely need some additional documents. Rosen added that they were not delaying his case; rather it was Cicero who indicated at the end of the August 30th meeting that he wanted to think about whether Rosen should still represent him. Rosen then added that to set aside the "global settlement" they needed to focus on the fact that neither Cicero nor Forest were represented by counsel on March 29th and that "the judge should not have permitted the global settlement' to occur under those circumstances." Rosen then reiterated his admonition against Cicero exercising self help by having the police evict Sunoco's pumps and equipment from his property and stated that this would be counterintuitive if Rosen was trying to bring Sunoco to the table to negotiate as per his September 20th letter. For these two letters, Rosen billed Cicero $1,052.00.

On October 17th, Rosen sent Cicero a termination letter which stated that based upon Cicero's exercise of "self help" by going to the police station despite Rosen's instructions to refrain from taking any action until he spoke to him, and his refusal to adhere to the legal and strategic decisions being made by Rosen, the firm could no longer represent him. Rosen billed [*9]Cicero $225.00 for this letter.

.

Legal Issues

This court must ascertain whether Rosen's billing of approximately 89.25 billable hours at a total cost of $33,414.25 hours was "abusive" [FN9] since the firm failed to file "any legal papers or a notice of appearance" in court, and whether the firm's subsequent termination of their representation of plaintiff constituted malpractice, or breach of contract.[FN10] Of this sum, approximately $10,220.00 is attributable to Salis' billable hours.

First, the Court finds that Rosen did not commit legal malpractice. To sustain a claim for legal malpractice, a plaintiff must "establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff ... and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence." AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 (2007); Ofman v. Katz, 89 AD3d 909 (2d Dept. 2011); Cruciata v Mainiero, 2011 NY Slip Op 50066(U), 30 Misc 3d 1214(A) (Sup. Ct., NY Co. 2011). The standard of care expected of an attorney must be established by expert testimony. Merlin Biomed Asset Management v. Wolf Block Schorr & Solis-Cohen, 23 AD3d 243 (1st Dep't 2005). The selection of one among several reasonable courses of action does not constitute malpractice, even if the attorney committed an error of judgment. Rosner v. Paley, 65 NY2d 736 (1985). Similarly, allegations of errors in the exercise of an attorney's professional judgment in areas such as strategy or the selection of appropriate evidence or arguments are usually not actionable as malpractice. Bixby v. Sommerville, 62 AD3d 1137, 1140 ( 3d Dept. 2009).

Here, plaintiff failed to prove that Rosen proximately caused any actual or ascertainable damages because plaintiff did not demonstrate that he would have been successful in overturning the global settlement. See, Kovitz v. Wenig, Ginsberg, et al, 2011 NY Slip Op 50768(U), 31 Misc 3d 138(A) (App. Term, 2d Dept 2011). "Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice." Dempster v. Liotti, 86 AD3d 169, 177 ( 2d Dept. 2011);Ursprung v. Verkowitz, 2011 NY Slip op 31723U, 2011 NY Misc. LEXIS 3167 (Sup. Ct., Nass. Co. 2011). Nor did plaintiff present any expert evidence that Rosen failed to exercise ordinary reasonable skill and knowledge in pursuing the claims. Rosen's disagreement with Cicero's alleged statements that he would exercise "self help" in getting the police to evict Sunoco from the gas station falls with the [*10]realm of disagreement about strategy and does not rise to the level of malpractice. While Rosen may have been overly cautious and obsessive about continuously requesting documents from Cicero, such attributes similarly do not rise to the level of malpractice.

The cause of action for breach of contract and or breach of fiduciary duty are similarly dismissed as it is duplicative of the legal malpractice claims, arose from the same set of facts and did not seek distinct and different damages. Campagnola v. Mulholland, 76 NY2d 38, 42 (1990); Ofman v. Katz, supra, 89 AD3d at 910; Alizio v. Feldman, 82 A..D. 3d 804, 805 (2d Dept. 2011); Bixby v. Somerville, supra, 62 AD3d at 1141. To the extent that Cicero claims that Rosen breached the contract or some fiduciary duty by withdrawing as his attorney, the law is clear tht an attorney may withdraw from representation where a client refuses to pay reasonable attorney fees, Winters v. Winters, 25 A.D. 3rd 601 (2d Dept. 2006) and or accused his attorney of incompetence. Weiss v. Spitzer, 46 AD3d 675 (2d Dept. 2007). Furthermore, pursuant to DR 2-110(c), permissive withdrawal is allowed where a client engages in conduct which "renders it unreasonable difficult for the lawyer to carry out employment effectively."

While Rosen and Salis may have taken longer than usual to research and review documents in order to ascertain whether they could make a motion under Federal Rule 60(b) to relieve Cicero, the Court cannot find that they failed to exercise ordinary reasonable skill and knowledge. Furthermore, while the Court believes that Rosen probably did have sufficient information and legal research to make the motion by August 30th, the passage of four months in which no motion was made is not so outrageous or long as to attribute any breach of fiduciary duty by Rosen to Cicero.[FN11]

Given this Court's determination that there is no merit to plaintiff's claim sounding in legal malpractice or breach of contract, Rosen is entitled to recover his legal fees. However, Cicero challenges the hours Rosen billed him prior to his giving a signed retainer agreement to Rosen. The billing records and testimony reveal that Cicero admitted to sending Rosen boxes of material for his review prior to his signing the retainer agreement. Rosen billed Cicero 6.25 hours prior to being retained for reviewing documents and speaking with plaintiff on the phone.[FN12] Rosen indicated that he usually did not spent a lot of time speaking with a client or working on a case prior to being retained, but did so in "Nick's" case because "it was complicated" and he wanted to show Nick "good faith and that we were willing to try to help him "(LRS response ).[FN13] Rosen also asserts that Nick repeatedly assured him that he would pay Rosen and Salis for whatever time they need to spent reviewing and analyzing the materials. [*11]

Pursuant to controlling precedent, Rosen is entitled to be paid for the 6.25 hours under the theory of quantum meruit. An attorney's "failure to provide a retainer agreement does not preclude it from recovering legal fees for its services." Egnotovich v. Katten Muchin Zavis & Roseman LLP, 55 AD3d 462, 464 (1st Dept. 2008) citing Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54, 60-61 (2nd Dept. 2007). In Rubinstein, supra, the Second Department held that if the terms of a retainer agreement are not established, or if a client discharges an attorney without cause, the attorney may recover "only in quantum meruit to the extent that the fair and reasonable value of legal services can be established." 41 AD3d at 60. The court then addressed the[FN14] "letter of engagement rule," contained in 22 NYCRR 1215.1, which applies to all civil actions where the amount in controversy exceeds $3,000.00. This rule requires attorneys to provide all clients with a letter explaining the scope, fees to be charged, billing practices and the right to arbitrate. This rule is also satisfied if a formal written retainer agreement is executed which contains the same information. Id at 60. See, Beech v. Lefcourt, P.C., 12 Misc 3d 1167(A) (2006).

The Second Department found that the language of 1215.1 contained "no express policy for noncompliance and that the intent of the law was not to address abuses but rather to prevent misunderstandings about fees - a constant source of contention between attorneys and clients. Rubenstein, supra, 41 AD3d at 61. Since this rule was not underscored by a specific disciplinary rule and was not intended to protect clients against abusive practices, it lacked "the bite" of 22 NYCRR 1400.3 ( applicable to domestic relations matters). Id. at 61. Furthermore, "a strict rule prohibiting the recovery of counsel fees for an attorney's non-compliance" was not appropriate and might create "unfair windfalls to clients." Id at 63. See, Petition of Rosenman & Colin v. Richard, 850 F.2d 57, 63 (2d Cir. 1988). Nabi v. Sells, 70 AD3d 252 (1st Dept. 2009); Miller v. Nadler, 60 AD3d 499 (1st Dept. 2009) (Plaintiff's failure to comply with the rules on retainer agreements pursuant to 22 NYCRR 1215.1 does not preclude it from suing to recover legal fees for services provided under the theory of quantum meruit). Subsequent decisions have definitively held that "the absence of a written letter of engagement or retainer agreement does not preclude the plaintiff law firm from collecting legal fees." Mintz & Gold, LLP v. Hart, 48 AD3d 526 (2nd Dept. 2008); See, also, Barry Mallin & Associates P.C. v. Nash Metalware Co. Inc., 18 Misc 3d 890, 895 (Civ. Ct. NY County 2008) (a client may not use an attorney's noncompliance with 22 NYCRR §1215.1 as a sword to recover fees already paid for properly-earned legal services." ).

It stands to reason that if an attorney may recover fees under quantum meruit sans either

a retainer agreement or letter of engagement, an attorney may recover fees under this doctrine for [*12]work done prior to the signing of the retainer agreement and/ payment of a retainer. To state a cause of action for quantum meruit, a "plaintiff must allege (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the fair and reasonable value of the services." Soumayah v. Minnelli, 41 AD3d 390, 391(2007) citing Tesser Equipment Co., 302 AD2d 589, 590 (2003). Rubenstein, supra, 41 AD3d at 60; Employers Ins. Co. of Wausau v. Team, Inc., 12 Misc 3d 1192(A), (Sup. Ct. 2nd Dept. 2006). .

"The evaluation of what constitutes reasonable counsel fees is a matter within the sound discretion of the trial court". Lodovico v. Lodovico, 51 AD3d 731 (2d Dept. 2008); citing Lefkowitz v Van Ess, 166 AD2d 556 ( 2d Dept. 1990). The trial court should evaluate factors such as the amount of time and effort expended, obtain a sufficient description of services, determine the difficulty of the questions involved, the skills required to handle the matter and the attorney's reputation in the community. Lodovico, supra; Glick v. Glick, 25 AD3d 533 (2d Dept. 2004); Celifie v. Celifie, 2008 NY Slip Op 33069(U), 2008 NY Misc. LEXIS 9788 (Sup. Ct., Queens Co. 2008).

The Court finds that Rosen met the four criteria listed above so as to warrant being paid for the services he provided prior to obtaining the signed retainer agreement. It begs all reason to suggest that Rosen never expected to be compensated for reviewing boxes of material prior to meeting with Cicero. Rosen's fee of $450 an hour is reasonable given Rosen's expertise in the area of franchise law and his years out of law school. Furthermore, Cicero agreed to this figure upon signing the retainer agreement. The Court finds that the 6.25 hours billed by the firm prior to Rosen's first meeting with Cicero on July 11th, when Cicero gave him a signed copy of the retainer agreement, was proper.

The Court also finds that Rosen need not return any of the $15,000 retainer that Cicero paid the firm since, as will be set forth below, Rosen reasonably billed Cicero in excess of 33 hours, which at Rosen's rate of $450 an hour, exceeded $15,000.00. However, Rosen is not entitled to the entire additional sum of $18,484.25 which he seeks in his counterclaim.

As mentioned previously, the Court has excluded most of the billable hours submitted by Salis (approximately $10,220.00). Salis failed to testify and plaintiff was precluded from cross-examining him about his bills. Furthermore, many of the bills presented by Salis were duplicative of those presented by Rosen, or consisted of Salis writing ad nauseam drafts of letters which Rosen later revised, neither of which the Court will direct payment for. As an example, defendant in essence double billed Cicero for meetings on July 11th and 13th, at which both Rosen and Salis were present. Rosen billed Cicero a total of $4,725.00 for 11 hours of meeting time and Salis billed Cicero $2,800.00 for 10 hours, the latter of which the Court has excluded from its award. Similarly, the Court will not award any bills submitted by Salis for sitting in on phone conversations between Cicero and Rosen, or for internal discussions between Salis and Rosen when Rosen submitted bills for these conversations. Thus, the only billable hours by Salis that the Court will include in its award are those where Salis singularly researched a particular issue or prepared or authored a letter. [*13]

To make this Court's decision regarding the bills submitted by Rosen more comprehensible, the Court has divided up the bills into four categories: meetings with Cicero in person -: $7,000.00; phone conversations with or about Cicero and review of files and documents- $8,154.00; legal research, legal memos and letters to Sunoco $5,000.00; and letters to Cicero: $3,000.00[FN15]. These four categories total $23,154.00, which is approximately $10,300.00 less than total bill submitted by Rosen ($15,000.00 retainer plus the $18,484.25 sought in the counterclaim) and includes almost all of the bills submitted by Richard Rosen and very few of the bills submitted by Salis.

The Court awards to Rosen the full $ 7,000.00 in billable hours for his face to face meetings with Cicero. However, the Court reduces the billable hours for legal research, legal memos and letters to Sunoco from $5,000.00 to $3,500.00, and the billable hours for the four letters that Rosen wrote to Cicero from $3,000.00 to $2,500.00. During the trial the Court expressed concern that while defendants had only produced a two page written memo on whether they could mount a successful motion pursuant to Rule 60(b) to overturn the settlement, they had written at least two lengthy letters to Cicero detailing the deterioration of their attorney -client relationship with Cicero.

When asked by the Court why he did not just make the motion under Rule 60 by arguing that based upon Cicero's age or undue influence that Cicero was somewhat coerced into signing the stipulation, Rosen responded: "Because during that time Mr. Cicero questioned whether we had the right to be paid for the work we did, he refused to pay any further bills. He wrote us many...e-mails and letters in which he criticized everything that we did. He did not follow my advice, he disputed almost everything we said." Cicero also expressed doubts about their continuing to represent him. "We weren't making a motion in a federal court until we had resolved all of those issues. We have to have been insane to do that" (Tr. 8/16 at p. 68). Rosen elaborated that: "I don't make a motion without understanding that you and your client are going to have a continuing attorney/client relationship." Id.

The two page legal memo summarizes FRCP 60(b) without any indicia of independent legal research of cases. Salis and Rosen had ample time to develop a more detailed memo that concisely spelled out how they could succeed, on the evidence presented by Cicero, to overturn the settlement. The two page letter to Sunoco dated August 9, 2007 simply asserts that the franchise agreement submitted to federal court "inaccurately and fraudulently made it appear that CSC controlled the premises by an underlying lease," when in fact neither Forest nor CSC made any representation to Sunoco about an underlying lease. It also demands that Sunoco comply with its obligations to perform all remediation work. Neither the two page memo nor the two page Sunoco letter required the amount of time that Rosen billed for. The four page September 20th letter to Sunoco, on the other hand, is much more complicated and warrants the [*14]$1,012.50 bill submitted by Rosen.

The Court similarly reduces by $500 the allowable billable hours that Rosen charged for writing Cicero one letter dated September 28th, two letters dated October 5th, and the termination letter dated October 17th since one of the October 5th letters basically reiterates everything in the September 28th letter and is therefore redundant. These letters also highlight the dichotomy between defendant's writings to Cicero and the sparse legal writings that defendant produced.

Finally, the Court reduces the amount of hours billed for phone conversations with or about Cicero and review of files and documents from $8,154.00 to $7,000.00. First, Rosen and Salis exhaustively discussed Cicero's case between themselves and billed Cicero accordingly. Since they inevitably included the essence of some of their conversations in the three lengthy letters they wrote Cicero, the Court is disallowing some of these bills on the grounds of redundancy.

Second, Rosen failed to specify during the trial or in its bills which documents were reviewed or whether they had ever digested the exhaustive court papers and or transcripts from the Sunoco state and federal court proceedings that Cicero had sent them. Furthermore, at some point a review of documents in order to determine whether defendant could make a viable motion to set aside the federal court judgment based upon fraud or misrepresentation became unnecessary. It is clear that Rosen comprehended Cicero's arguments as to why fraud or misrepresentation had been committed upon the Court from at least the beginning of August - that neither Forest nor CSC has made any representation to Sunoco that CSC has an underlying lease re the premises, and that the Dealer Supply Agreement entered into between Sunoco and CSC ("purported franchise agreement") inaccurately and fraudulently made it appear that CSC controlled the premises by an underlying lease.

The other aspect of whether a viable motion could be made Cicero's contention that he was an elderly unsophisticated man who had been hood winked by Dan Abrams into signing the settlement had nothing to do with a review of the records but rather an assessment by Rosen and Salis as to Cicero's credibility. As commented by the Court: "If a motion could be made on the fact that Nick was sold down the river by Abrams and Abrams had a dual interest, why would you need all this other stuff? Why couldn't you just get the stuff on Abrams rolling and whether he was duplicitous ...and do a motion solely on that." (Tr. 9/24 at 10). Rosen responded that it was very difficult to pin Cicero down on exactly what had occurred in federal court right with respect to words and actions taken by Sunoco's attorneys and Dan Abrams right before the global settlement was signed (9/24 at 11- 15). At some point, Rosen either had to take Cicero's assertions at face value or find that they were too weak to move forward.

Given the Court's disallowance of most of Salis' billable hours and its reduction of the bills submitted by Rosen in the four above-mentioned categories, the Court finds that defendant reasonably billed Cicero in the mount of $20,000.00. Since Cicero already paid a retainer of $15,000.00, Rosen is entitled to a judgment of $5,000.00 plus interest, statutory costs and [*15]disbursements. This constitutes the decision and order of the Court.

Dated: August 17, 2012

Katherine A. LevineJudge, Civil Court

Footnotes

Footnote 1:Defendant appeared pro se by Richard L. Rosen. At all times, Mr. Rosen was accompanied by his associate, Leonard S. Salis, who did not testify but who assisted Mr. Rosen with the exhibits. This decision at times utilizes the term "Rosen" to refer to both Richard Rosen as an individual and defendant Rosen law firm.

Footnote 2:For example, the Court repeatedly admonished Cicero to stop fixating on the time that Rosen or Salis purportedly e mailed him a September 28th letter and focus on why he believed that the representation he received from defendant was inadequate and or insufficient so as to warrant a court order that defendant return the retainer to Cicero( see e.g.10/23 transcript at pp. 88- 90).

Footnote 3: See Cicero's complaint to Allen Charne, Executive Director of the Legal Referral service of the Association of the Bar of the City of New York (" LRS") , and Rosen's response. Since the arguments both parties raised before this Court were cogently set forth in their papers to the LRS, the Court will cite liberally to these papers.

Footnote 4:Cicero incorrectly asserts that the referral was made by NY State Bar when, as set forth above, it was made by the LRS of the Association of the Bar of the City of NY

Footnote 5:Since, as will be set forth infra, the Court will not award defendant for most of the billable hours submitted by Salis which the court has determined to be duplicative (discussions with Rosen and or Cicero , or preparation of documents that Rosen also billed for), this decision will only refer to billable hours submitted by Salis that are non duplicative. The total billable hours submitted by Salis was $10,220.00.

Footnote 6:Although not explicitly stated by Rosen, the Court intuits that Rosen became much more scrupulous in his billing after he received Cicero's August 15th e mail. Salis no longer charged billable hours for the time he spent speaking with Cicero on the phone or responding to his complaints.

Footnote 7: Salis billed $960 for preparing the draft which is somewhat duplicative of what Rosen worked on and will not be included in the Court's award.

Footnote 8: Salis billed $420 for preparing the draft. This amount is disallowed as being duplicative

Footnote 9: Plaintiff alleges that Rosen billed 127.75 hours "at an abusive cost of $45,290.00" but this Court's repeated perusal of the billing statements reveals that Rosen only billed 89.25 hours and in fact spent 24.75 hours in unbilled time ($7,185.00) related to assisting Cicero with the case. See Billing memorandum from Salis to file dated 1/24/08.

Footnote 10:p. 2 of plaintiff's closing brief

Footnote 11:The court measures the four months from the time Cicero actually retained Rosen to Rosen's withdrawal from the case in mid October.

Footnote 12:Rosen points out that Salis and he spent another 3 hours of un billed time prior to being retained.

Footnote 13:Rosen repeatedly referred to Cicero as "Nick" in both his submissions and testimony at trial.

Footnote 14:22 NYCRR §1400.3, entitled "Statement of client's rights and responsibilities," provides that a client is entitled to receive a written itemized bill on a regular basis, "at least every 60 days." However, part 1400 only applies to matrimonial/domestic relations matters and hence does not govern the instant matter. Rubinstein, supra. Cf, Meirowitz v. Cohn, 2010 NY Slip Op. 51871(U), 20 Misc 3d 1218(A) (Sup. Ct., Nass. Co. 2010); Barry Mallin & Associates v. Nash, 18 Misc 3d 890 (Civil Ct., NY Co. 2008).

Footnote 15::These are approximate figures since Rosen never broke down his billing into actual categories and Rosen at times combined many different tasks performed on one day into his hourly billing. The Court has rounded off some of the figures.