De Castro v Turnbull

De Castro v Turnbull 2009 NY Slip Op 06787 [66 AD3d 417] October 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Steven De Castro, Respondent,
v
Horace Turnbull, Appellant.

—[*1] Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.

Arthur W. Greig, New York, for respondent.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered March 20, 2009, after a jury trial, awarding plaintiff the principal sum of $567,600, plus interest from November 5, 2007, unanimously affirmed, without costs.

Assuming arguendo that defendant's challenge to the sufficiency of the evidence was preserved by his unelaborated pro forma motion, the jury's findings that plaintiff attorney had not been discharged for cause and that he was entitled to his contingency fee pursuant to the retainer agreement (see generally Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 44 [1990]), were based on legally sufficient evidence. Furthermore, the verdict, premised largely on the determination of credibility (see Ruiz v City of New York, 289 AD2d 42 [2001]), by which the jury effectively found that defendant's claimed reasons for discharging his attorney were a pretense to avoid paying his fee, was based upon a fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]).

Defendant similarly failed to preserve his challenge to the ruling regarding the accrual of prejudgment interest, calculated from the date of the discharge rather than the date of the buyout settlement that provided defendant with the recovery from which the contingency fee was to be paid. In any event, the ruling was fair in light of the fact that defendant discharged his attorney in bad faith just before the attorney's efforts came to fruition (see CPLR 5001; cf. Klein v Eubank, 263 AD2d 357 [1999]). Concur—Tom, J.P., Andrias, Nardelli, DeGrasse and Freedman, JJ.