Courten & Villar PLLC v Alcosser

[*1] Courten & Villar PLLC v Alcosser 2013 NY Slip Op 50002(U) Decided on January 2, 2013 County Court, Suffolk County Tarantino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 2, 2013
County Court, Suffolk County

Courten & Villar PLLC, Plaintiff(s)

against

Leonard Alcosser, Defendant(s)



10577 / 2010



Courten & Villar PLLC

Plaintiff, self represented

33 Kings Hwy

Hauppauge NY 11788

631-851-8700

Leonard Alcosser

Defendant, self represented

435-17 Brook Ave

Deer Park NY 11729

631-404-5658

Andrew G. Tarantino, J.



NATURE OF CASE

In this action, Plaintiff seeks judgment against Defendant for TWENTY EIGHT THOUSAND FIVE HUNDRED SIXTY DOLLARS AND 47/100 ($28,560.47) in unpaid attorney's fees last billed in November 2009. Plaintiff law firm represented Defendant in Defendant's Family Court visitation, custody and support proceedings. The action was transferred to this Court, pursuant to NY Civ. Pract. Laws & Rules 325(d) for trial which was conducted without a jury. Although represented by counsel at the beginning of the action, the Defendant was self represented at trial.

TESTIMONY

Attorney Villar testified on behalf of the Plaintiff law firm. She explained that the office sent the Defendant written itemized bills every thirty (30) days and from March 2008 until November 2009, there were no bill disputes. In addition to the initial $5,000.00 retainer, Defendant made two additional payments, totaling $9,000.00, towards his retainer. Villar [*2]pointed out that the firm did not charge the Defendant traveling time for court appearances. Villar also placed her credentials on the record, as well as those of her business partner Dorothy Courten. Submitted into evidence were the retainer agreement, dated March 10, 2008, the Statement of Client's Rights, and copies of the itemized bills, dated from March 2008 until November 2009. The Retainer was signed by Defendant immediately following a statement that read as follows: "I have read and understand the above retainer agreement and accept all the terms and conditions of said agreement. I further acknowledge receipt of [the] "Client's Rights and Responsibilities" which was provided to me prior to my signing this agreement."

Villar also testified that on December 9, 2009, Plaintiffs mailed Defendant a Notice of Arbitration for Fee Dispute. Villar submitted into evidence the Notice, Instructions, and Request Form, which were mailed to Defendant both by certified mail and first class mail.

Defendant Alcosser appeared self represented. His first cross-examination question of Villar asked, "why didn't you employ a forensic accountant" in the proceedings? Although the Court permitted Defendant certain latitudes in his questioning because he was self represented, the Court explained to Defendant that the Court was determining whether Plaintiff performed its job satisfactorily, but whether it provided and properly billed for its services and whether Defendant owed a balance. Defendant acknowledged he had no further cross-examination of Plaintiff Villar. The Court then permitted Defendant to narrate his defense. Again, Defendant began to describe his dissatisfaction with the outcome of the Family Court proceedings, and his dissatisfaction with Plaintiff. The Court then guided Defendant to the itemized bills and asked Defendant to show what items were billed incorrectly or to identify any other discrepancies. Defendant complained of the $192.00 billed against his account for time he spent with Attorney Felliceti. He explained that he retained Courten, not Felliceti, but he did not dispute that the meeting was conducted or the amount of time billed. Defendant then complained of a double billing of $80.00 which Villar pointed out was corrected with an $80.00 credit to his account on September 17, 2008. He continued by explaining how on another date he was billed for .8 hours when he believed the time should have been only 45 minutes. The Court explained that .8 hours was 48 minutes. Defendant could not show if any telephone calls were over-billed and acknowledged that he did not maintain any telephone logs or diaries against which he could compare the itemized charges. Defendant then questioned two charges totaling 4 hours of time labeled "trial prep." Villar explained that a paralegal went through the myriad of emails and correspondence in the case and coded them for the attorney to use at trial. Villar retrieved the coded records from her car, which were several inches in thickness and bore various color coded stickers for use at trial. When offered an opportunity to conclude his arguments, Defendant repeated his belief that Plaintiff was not prepared, was talked over by the judge during the proceedings, and did not deliver the results that Defendant believed he was promised.

The Court reserved decision.

ANALYSIS

In cases involving disputes between attorneys and clients over legal fees, the attorneys [*3]have the burden of establishing that their compensation was fair and reasonable. JEFFREY ROSENBERG & ASSOCS LLC v CANDID LITHO PRINTING LTD, 76 AD3d 510, 904 N.Y.S.2d 909 (2d Dep't 2010). Attorneys are entitled to an award of attorney's fees when they establish that they have substantially complied with 22 NYCRR 1400 including providing the client with a retainer agreement, invoices which are sufficiently detailed to demonstrate that substantial services were rendered, and notice of the client's right to arbitrate any dispute. EDELSTEIN v GREISMAN, 67 AD3d 796, 888 N.Y.S.2d 179 (2d Dep't 2009). An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. 22 NYCRR 1400.2. An attorney who undertakes to represent a party and enters into an arrangement for, charges or collects any fee from a client shall execute a written agreement with the client setting forth in plain language the terms of compensation and the nature of services to be rendered. 22 NYCRR 1400.3. Where a retainer agreement warrants interpretation, the agreement between a client and the attorney will be construed most favorably for the client. GREENBERG v BAR STEEL CONSTRUCTION CORP, 22 NY2d 210, 292 N.Y.S.2d 404 (1968).

There is no dispute that the client received the Statement of Client Rights and Responsibilities and a written agreement in plain language. The retainer set forth the various hourly fees for each person at the firm who may have worked on the Defendant's matter, and the retainer clearly stated that the Defendant was not retaining any specific attorney at the firm. Thus, there was no merit to his argument that he retained Attorney Courten, and should not have been billed for time spent with Attorney Felliceti. The rates set forth in the bills were consistent with the fees set forth in the retainer agreement. Plaintiff established compliance with 22 NYCRR 1400. The Court finds that the Plaintiff also established that its compensation was fair and reasonable. The hourly rates of $400.00 for Attorney Courten, $375.00 for Attorney Villar, $275.00 for an associate, and $100.00 for paralegals were consistent with local norms of attorneys with similar years of experience. The Court also considered that the Plaintiff did not charge Defendant travel time to and from Court, for which many local law firms routinely charge. The Court also calculated about sixty two (62) hours of total time incurred on Defendant's behalf for which Plaintiff entered as no charge' in Defendant's billings. Finally, although the Retainer provided for late fees of 5%, Plaintiff never charged a late fee to the Defendant for his non-payment.

The Court reviewed Defendant's opposition to the Motion for Summary Judgment in Lieu of Complaint to identify any other cognizable defenses raised by Defendant which he may have omitted at trial as a self represented litigant. Although no other defenses were identified, the Court came upon material that questioned Defendant's credibility. At paragraph 17 of Defendant's Opposition he swore that he never received the arbitration documents mailed by Plaintiff. He did admit receiving a letter Plaintiff mailed to him on December 7, 2009. The Court notes that Defendant's address on each of the Arbitration Notices was identical to the address on the December 7, 2009 letter and those addresses matched the address on each of the itemized bills. No evidence was submitted that Plaintiff's the first class mail was returned. [*4]However, the certified mail letter was returned to Plaintiff bearing the post-office marking "return to sender, unclaimed." Falsus in uno, falsus in omnibus; if the Defendant intentionally misrepresented a material fact, such as the Plaintiff's obligation to mail notices of arbitration, then the court can conclude that the Defendant misrepresented everything. Although this caught the Court's attention, it did not have to go to the extreme of applying this doctrine. This decision rests on the Plaintiff's proof, and Defendant's inability to indicate where he had been mis-billed, or over-billed.

The issue before this Court was not to determine the quality of Plaintiff's representation, nor whether the Defendant was satisfied with Plaintiff's services. It was to determine if the Plaintiff complied with the Rules of Court and that its compensation was fair and reasonable.

By reason of the foregoing; it is hereby

ADJUDGED that Plaintiff did establish by a fair preponderance of the credible evidence that it complied with 22 NYCRR 1400; and it is further

ADJUDGED that Plaintiff did establish by a fair preponderance of the credible evidence that its compensation was fair and reasonable; and it is further

ADJUDGED that Plaintiff COURTEN & VILLAR PLLC is awarded judgment against Defendant LEONARD ALCOSSER in the amount of TWENTY EIGHT THOUSAND FIVE HUNDRED SIXTY DOLLARS AND 47/100 ($28,560.47), together with simple interest in the amount of 5% accrued from January 1, 2010 until January 1, 2013, together with statutory interest from January 1, 2013.

Plaintiff to submit Judgment.

This constitutes the Order and Judgment of this Court.

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