Levitt v Wallenstein

Levitt v Wallenstein 2014 NY Slip Op 50778(U) Decided on April 30, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.


SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2012-1211 S C

Jeffrey Levitt, Appellant,

against

Laurie Wallenstein, Respondent.

[*1]

Appeal from a judgment of the District Court of Suffolk County, Second District (David A. Morris, J.), entered February 8, 2012. The judgment, entered upon a decision, after a nonjury trial, finding that plaintiff was entitled to the sum of $3,712.59 upon his cause of action, but making no award to plaintiff for prejudgment interest thereon, and that defendant was entitled to the principal sum of $10,000 on her counterclaim, awarded defendant the net principal sum of $6,287.41.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of judgment in accordance with the decision herein.

After an arbitration proceeding was held pursuant to the rules of the Fee Dispute Resolution Program (Rules of the Chief Administrator [22 NYCRR]; part 137), plaintiff, an attorney, commenced this action, seeking de novo review of the arbitrator's award (see Rules of the Chief Administrator [22 NYCRR]; § 137.8 [a]). Plaintiff seeks to recover, pursuant to a retainer agreement, the sum of $3,712.59, plus interest, for disbursements that he incurred in connection with his representation of defendant. Defendant counterclaimed to recover the sum of $10,000 pursuant to a contract entered into by the parties subsequent to their entry into the retainer agreement.

At a nonjury trial, it was established that, in accordance with the retainer agreement, defendant had paid plaintiff a flat fee of $10,000 to represent defendant in litigating a claim and defendant was to be responsible for payment of all the disbursements in connection therewith. The retainer agreement further provided that plaintiff was to send defendant monthly bills for disbursements and that payment by defendant was due upon receipt of each bill. The only proof adduced at trial of defendant being billed by plaintiff was a bill dated January 17, 2006 in the sum of $213.09. However, the evidence did not establish either the date on which the bill had been sent or the date on which the bill had been received. In the course of the lawyer-client relationship, plaintiff made a written offer to defendant dated July 19, 2007, by which plaintiff would guarantee defendant a recovery of at least $10,000 in exchange for defendant granting plaintiff the authority to settle the case. Defendant responded by letter dated July 31, 2007 in which she stated, among other things, "I accept your offer . . . as per your letter dated July 19, 2007."

Following the trial, the District Court found that plaintiff was entitled to the sum of $3,712.59 upon his cause of action, but made no award to plaintiff for prejudgment interest thereon, and that defendant was entitled to the principal sum of $10,000 on her counterclaim. Accordingly, judgment was entered awarding defendant the net principal sum of $6,287.41. Plaintiff appeals.

"It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer" (Willis v Ronan, 218 AD2d 794, 795 [1995]; [internal quotation marks and citation omitted]). We find that defendant's response to plaintiff's offer constituted an acceptance of the terms of plaintiff's offer. In view of the foregoing, we find that defendant established her entitlement to the principal sum of $10,000 on her counterclaim.

Where a sum is awarded on a claim for breach of contract, prejudgment interest is awarded as of right (see CPLR 5001 [a]). Prejudgment interest is computed from the earliest ascertainable date on which the cause of action existed (CPLR 5001 [b]). A breach of contract "claim generally accrues at the time of the breach" (Hahn Automotive v American Zurich Ins. Co., 18 NY3d 765, 770 [2012]). The proof adduced at trial established plaintiff's entitlement to the disbursements and interest thereon. The contract provided that bills for disbursements were due upon receipt by defendant. Upon the record presented, the earliest ascertainable date on which defendant was in receipt of such a bill is August 5, 2009, the date of the arbitration award. In view of the foregoing, plaintiff has established his entitlement to interest on the entirety of the disbursements in the principal sum of $3,712.59 from August 5, 2009.

Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of judgment in accordance with the decision herein.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: April 30, 2014