Massimo & Panetta, P.C. v Centeno

[*1] Massimo & Panetta, P.C. v Centeno 2006 NY Slip Op 52574(U) [14 Misc 3d 1232(A)] Decided on September 29, 2006 District Court Of Nassau County, First District Knobel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2006
District Court of Nassau County, First District

Massimo & Panetta, P.C., Plaintiff,

against

Joaquin Centeno, Jr., Defendant.



NCC 00026/06



Massimo & Panetta, P.C.

99 Quentin Roosevelt Blvd.

Suite 201

Garden City, NY 11530

#(516) 683-8880

FAX #(516) 794-9039

Paul R. Delle, Esq.(Attorney for Defendant son)

725 Front Street

Hempstead, NY 11550

OR -

52 Roslyn Rd.

Mineola, NY 11501

Gary F. Knobel, J.

This is a small claims action by plaintiff law firm to recover $5,000.00 in legal fees for services it provided to the defendant's father, Joaquin Centeno, Sr. The amount allegedly owed is more than $5000.00, but the plaintiff chose to limit itself to the monetary limit of the small claims part. Plaintiff claims that the defendant, Joaquin E. Centeno, Jr., retained plaintiff's services to represent his father, Joaquin R. Centeno, Sr., and agreed to be liable for all legal fees incurred as a result. The defendant son claims he signed the retainer agreement on behalf of his father, with the understanding that he would not be personally liable for any legal fees incurred for the plaintiff's representation of his father. Defendant further contends that there was no meeting of the minds between the plaintiff and himself and as such, no contract was ever formed between the parties.

Plaintiff's partners testified at trial that the defendant son retained plaintiff's services on April 16, 2001, pursuant to a signed agreement to represent defendant's father, who had been arrested for the attempted murder of defendant's mother. Plaintiff contends that the retainer agreement was between the law firm and defendant and that it was understood that defendant, not his father, would be responsible for the payment of any and all fees. Plaintiff's partners testified that the services provided to defendant and his father included visiting the father in jail numerous times, hiring a Spanish interpreter to go to the jail with them, going to court on Centeno Sr.'s behalf approximately 16 times (including the date of arraignment), and negotiating a plea bargain for the father on February 14, 2002, that resulted in a nine and one-half year prison sentence. Plaintiff claims that the retainer agreement was clear and unambiguous and that the defendant son fully read and understood the terms of the agreement to include his responsibility for payment of plaintiff's services. Defendant testified that he and several other family members were at his

father's arraignment on April 14, 2001, when they were approached by attorney Panetta, a [*2]partner of the plaintiff law firm. At that time, defendant's father did not have any representation. Defendant contends that while he was under extreme duress due to the nature of the circumstances, attorney Panetta told him that his father would need an attorney and subsequently offered to handle his father's arraignment for $300.00. Defendant further testified that attorney Panetta never discussed the option of obtaining a Legal Aid attorney to represent his father; any further representation of his father would require defendant to come down to plaintiff's office to sign a retainer agreement. Defendant testified that when he expressed his hesitation at getting involved due to a lack of finances, Panetta told him "not to worry" because defendant's father had assets, including a 401k plan and a home, which "would insure that the plaintiff law firm would get paid." When the defendant went to plaintiff's office on April 16, 2001, he asked attorney Panetta what would happen to his father and was told not to worry because they had "plenty of experience with this." (Record pg. 91) Defendant testified that he repeatedly told plaintiffs that he did not want to sign the retainer agreement and that he wanted the plaintiff law firm to get his father to sign it instead, because he did not have the money to pay for their services. Defendant contends that he only signed the retainer because attorney Panetta told him he would have to if he wanted someone to represent his father, and that the law firm would obtain a power of attorney from his father, which would allow defendant to legally sign for him, without binding himself to the agreement. Defendant further testified that he never received a copy of the signed retainer on that day, but did receive a copy in 2003, when plaintiff started an action against him. Defendant also testified that while he signed his name at the end of the retainer, the only other information handwritten into the retainer at the time of signing was the amount of $15,000.00. In fact, attorney Panetta admitted to adding the handwritten words to the beginning of the retainer, "I Joaquin Centeno " to represent my father, Joaquin Centeno" sometime after defendant signed the retainer. Not only was this done without his knowledge, the correct party, Joaquin Centeno, Jr., was not identified. Defendant further testified that he was directed by Mr. Panetta to sign his name on authorizations that would enable plaintiff attorneys to obtain his father's medical records.

Defendant paid plaintiff a total of $8,000.00 using his father's credit card and by withdrawing cash from his father's bank account with his ATM card. Defendant has receipts for all of these payments. The additional $300.00 for the father's initial arraignment came from defendant's sister-in-law. The defendant testified that attorney Panetta told defendant to try and get a loan to satisfy the retainer fee by using a power of attorney given by the plaintiff law firm. When the bank rejected the first power of attorney, the plaintiff law firm gave defendant a second power of attorney, which second attempt also failed. Defendant also testified that he was told that with the father's power of attorney, he would be able to obtain money from his father's credit card. After the initial $6,500.00 was paid within the first week after the retainer was signed, defendant claimed that he was called into plaintiff's office on November 14, 2001, to ask him for more money. Defendant testified that when defendant told Panetta that he only had his father's credit card, Panetta swiped the card, but it was declined. Defendant contended that attorney Panetta dialed the telephone for the defendant and directed that defendant request an increase in his father's credit line from the credit card company and that he should tell the credit card company that he was in fact Joaquin R. Centeno, Sr. in order to get the increase. Defendant obtained another $1,500.00, which he gave to the plaintiff.

Defendant maintained that although he asked plaintiff to notify him of all of his father's [*3]court appearances so that he could attend as many as possible, plaintiff did not always do so. He further contends that neither he nor his father were ever told that the plaintiff law firm could be dismissed as counsel at anytime for a refund of monies received but not earned.

The inquiry into whether a written contract is ambiguous is an issue of law within the province of the Court (see, RAD Ventures Corp. V Artukmac, 31 AD3d 412). "In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language" (Jacobson v Sassower, 66 NY2d 991, 993); see, Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 460). In addition, as a matter of public policy, "attorney-client fee arrangements are a matter of special concern to the courts and are ... affected by lofty principles different from those applicable to commonplace commercial contracts" (Matter of Cooperman, 83 NY2d 465, 468, 472 [quoting Sir Francis Bacon in the Essays of Francis Bacon at p. 18, "the greatest trust between people is the trust of giving counsel."]; see, King v Fox, 7 NY3d 181; 191; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43). Consequently, "it is the attorney that must shoulder the burden of demonstrating that a fee contract is fair, reasonable, and fully known and understood by the client' (Jacobson v Sassower, 66 NY2d 991, 993; Koral v Koral, 185 AD2d 298, 299-300).

Indeed, even in the absence of fraud or undue influence, an agreement to pay a legal fee may be invalid if it appears that the attorney got the benefit of the bargain, unless [he] can show that the client was fully aware of the consequences and that there was no exploitation of the client's confidence in the attorney' (Jacobson v Sassower, 66 NY2d at 993, quoting Snitas v Rickett, 102 AD2d 928, 939" (Ween v Dow,AD3d,NYS2d, 2006 NY Slip Op 7227, 2006 NY App. Div. LEXIS 12033 [1st Dept., October 5, 2006]; King v Fox, supra).

The beginning of the retainer states "I, Joaquin Centeno," but it also states further in the agreement that "my failure to pay the aforementioned monies" and "if I fail to show up in Court and required [plaintiff] to stay a warrant.

In this case, I find that there has been no meeting of the minds as to who was responsible under the terms of the retainer agreement for paying plaintiff's legal fee of $15,000.00. The language of the contract is ambiguous in that while defendant signed and dated the retainer, the information stating which Joaquin Centeno, father or son, would be paying the legal fees was not clear. Furthermore, although defendant son signed the retainer, the plaintiff did not cross out under his signature "Client/Parent" to leave only "or person retaining Massimo and Panetta." I find that defendant agreed to sign the retainer because he was told by the plaintiff attorney that he had to sign it if he wanted his father to be represented by them and, more importantly, because he was told that his father would be responsible for paying the legal fees. It is clear that on more than one occasion, defendant expressed his concern to the plaintiff about signing the retainer for fear of being held financially liable, only to be reassured by plaintiff that he would not be liable. In addition, when defendant initially protested to signing the agreement, Mr. Panetta went to speak with Mr. Centeno, Sr. after his arraignment, only to return and tell defendant that his father had the money to pay him. Mr. Panetta then asked defendant if he knew where his father's credit cards were. As such, it does not seem possible that plaintiffs could have been unaware of the fact that defendant was more than reasonably concerned about not being held responsible for paying his father's legal bill.

The fact that the plaintiffs collected the $8,000.00 from defendant via his father's credit card and bank account further is evidence the that plaintiff law firm never had any intent to collect [*4]money from defendant, which also lends credence to the fact that there was no meeting of the minds. There has also been no indicia that defendant ever intended to be financially responsible due to the fact that he never made any payments towards his father's legal fees out of his own money. Plaintiff also never gave or forwarded any receipts or financial statements to defendant, which one would expect if defendant were the financially liable party or, in a case such as this one where several payments were being made towards the total fee.

Based upon all the credible evidence presented to the Court, the Court finds that the contract signed by the defendant son was ambiguous and not definite enough to cast liability for the fee sought by plaintiff. The defendant son signed a retainer with the plaintiff on behalf of his father since the partial fees paid to the plaintiff were from the father's funds. The Court also finds that the defendant did not make an oral promise to pay for his father's debt (see, Martin Roofing Inc. v Goldstein, 60 Ny2d 262; Carey & Associates v Ernst, 27 AD3d 261).

Accordingly, the plaintiff's claim is dismissed.

The foregoing constitutes the decision, order and judgment of this Court.[FN1]

So Ordered:

HON. GARY F. KNOBEL

District Court Judge

Dated: September 29, 2006

cc:Massimo & Panetta, P.C.

Paul R. Delle, Esq.

ATTORNEYS [*5]

#(516) 539-0055FAX #(516) 485-2968 Footnotes

Footnote 1:A copy of this decision will be forwarded to the Grievance Committee.