Saccone v Elm Hill Plaza

[*1] Saccone v Elm Hill Plaza 2004 NY Slip Op 51704(U) Decided on November 4, 2004 Supreme Court, Onondaga County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2004
Supreme Court, Onondaga County

MARY LOU SACCONE, Plaintiff/s,

against

ELM HILL PLAZA, Defendant/s.



01-4939



Paul F. Shanahan, Esq.

John A. DeFrancisco, Esq. Of Counsel

Attorney for Plaintiff

36 West Main Street

504 Executive Office Building

Rochester, New York 14614

Alexander & Catalano

Benjamin C. Rabin, Esq. of Counsel

115 E. Jefferson Street, Suite 403

Syracuse, New York 13202

Thomas J. Murphy, J.

This matter came on before this Court by Order To Show Cause dated June 25, 2004, directing the law firm of Alexander and Catalano to show cause why an Order should not be made fixing and determining an attorney's lien. An evidentiary hearing was conducted on September 13, 2004.

Attorney Paul Shanahan, Esq., appeared in person and through his counsel, the DeFrancisco Law Firm, John A. DeFrancisco, Esq. of counsel, and the law firm of Alexander and Catalano appeared through its counsel, Benjamin C. Rabin, Esq.

This fee dispute matter arose out of the substitution of attorney Paul Shanahan for attorneys Alexander and Catalano, LLC.

The record shows that plaintiff, Mary Lou Saccone, contacted Peter Catalano on or about July 2001, requesting a meeting with him at her home in West Monroe. That meeting did not take place since Ms. Saccone was in the hospital. Attorneys Catalano and Alexander went to the hospital to speak with plaintiff. They met with plaintiff who executed a Retainer Statement and Notice of Substitution.

There was some discussion concerning the Retainer Statement. Ms. Saccone testified that she was in significant pain and had been given medication for pain.

Alexander and Catalano agreed to cross-out the pre-printed paragraph on the Retainer Agreement signed by Ms. Saccone in which the client's responsibility for the costs and disbursements associated with the claim is provided. The Retainer statement is undated and does not state the subject matter of the representation.

Ms. Saccone sent a letter to the Alexander and Catalano law firm on August 1, 2001, in which she discharged them from representation of her interests.

Mr. Catalano testified that the law firm has spent between 16 to 18 hours performing various legal matters in furtherance of the case.

The New York Code of Professional Responsibility Rule DR5-103 provides: (a)"A Lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he or she is conducting for a client, except that the lawyer may..."(b)(1)"A lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses."

The Court finds that the law firm of Alexander & Catalano have violated this rule of Professional Responsibility by crossing out a provision which is mandated in a contingent fees agreement. (See Greene v. Greene, 56 NY2d 86 [1982]) [*2]

The Court strikes the Retainer Agreement as being violative of the Code of Professional Responsibility. (Landsman v. Moss, 180 AD2d 718 [2nd Dept. 1992]).

By inking out and initialing the portion of the Retainer Agreement that relates to the client's

ultimate responsibility for litigation related expenses, the law firm obtained an improper interest in the litigation (DR5-103(b)(1).

Any legal services performed on a void contingent fee agreement are not compensable.

Therefore, the Court grants plaintiff's motion to the extent that no attorneys fees are awarded to the firm of Alexander and Catalano.

Submit Order in accordance with this decision.

DATED: November , 2004

Syracuse, New York

______________________________

THOMAS J. MURPHY, J.S.C.