Grandelli v Rothstein

[*1] Grandelli v Rothstein 2010 NY Slip Op 51282(U) [28 Misc 3d 131(A)] Decided on July 20, 2010 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570330/10.

Louis Grandelli, Plaintiff-

against

Martin Rothstein, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered September 3, 2009, which denied his motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jeffrey K. Oing, J.), entered September 3, 2009, affirmed, with $10 costs.

Plaintiff-attorney was retained by defendant-client to prosecute a personal injury action. The governing retainer agreement between the parties provided, in relevant part, that plaintiff shall receive a fee of "[t]hirty three and one-third percent ... on the net sum recovered after deducting from the amount recovered expenses and disbursements." Construing the agreement in the light most favorable to defendant-client (see Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177 [1986]), we agree that, under the unambiguous terms of the agreement, defendant is not obligated to reimburse plaintiff for the expenses incurred prosecuting the personal injury action. Under the agreement, which was prepared by plaintiff, plaintiff's right to recover litigation expenses from defendant was conditioned upon defendant recovering damages in the personal injury action; the agreement did not contain any language suggesting that defendant would be responsible for litigation expenses if he did not recover such damages (see RM 14 FK Corp. v Bank One Trust Co., 37 AD3d 272, 274 [2007]).

Contrary to plaintiff's claim, the (former) Disciplinary Rules of the Code of Professional Responsibility did not require that the client remain ultimately responsible for litigation expenses. Rather, (former) Disciplinary Rule 5-103(b)(2) (22 NYCRR 1200.22[b][2]) now Rule 1.8(e)(1) of the Rules of Professional Conduct (22 NYCRR 1200.0) provided that "a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter" (emphasis added). In any event, the (former) Disciplinary Rules, which reflected principles of ethical conduct for attorneys and provided rules for professional discipline, did not have the force of law and would not dictate the outcome of this plenary action (see Niesig v Team I, 76 NY2d 363, 369 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 20, 2010