Fischbarg v Doucet

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Fischbarg v Doucet 2008 NY Slip Op 31979(U) July 10, 2008 Supreme Court, New York County Docket Number: 0100328/2008 Judge: Shirley Werner Kornreich Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - . SCANNED ON 711612008 [* 1 ] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK HON, SHIRLEY WERNER KORNREICH - -- _- COUNTY PART rL\ - Index Number 100328/2008 INDEX NO. DOUCET, SUZANNE vs. FISCHBARG, GABRIEL MOTION DATE I MOTION SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAL. NO. SUMMARY JUDGMENT PAPEWS NUMBERED Notice of Motion/ Order t o Show Cause - Affidavits Answering Affidavits - - Exhibits I ... Exhibits Replying Affidavits Cross-Motion: 1-1 Yes IdNo Upon the foregoing papers, it is ordered that this motion MOTION IS DECIDED IN ACCORDANCE W l W ACCOMPANYING MEMORANDUM DWlSlON AND ORDER. n Check one: P(,INAL DISPOSITION Check if appropriate: n I DO NOT POST NON-FINAL DISPOSITION 11 REFERENCE [* 2 ] Iiidcx No.: 10 1427/05 Plaintiff, DECISION and ORDER -againstSUZANNE DOUCET dk/a SUZANNE BELL-DOUCE I and ONLY NEW AGE MIJSIC, INC., P 1ai11 , tiffs -againstGABRIEL FISCHBARG, K0RNKF:ICf I , SHIR1,EY These actions are consolidated for decision only. The actions arise out of a legal fee dispute for services pro-sc plaintiff/defendant Gabriel Fischbarg, Esq. provided Only New Age Music Corp. (ONAM) and Suzanne Doucet in an action before the United States District Court for the District of Oregon entitled Allegro Corp v. Only New Age Mu.sic C orp. und Suzanne Dnucet (the Oregon Action). In action No. 1 0 1427105 (the Fischbarg Action), Mr. Fischbarg now niovcs for summary judgment pursuant to CPLR Ij 32 12, asking the court to award him $57,906.38 in legal Lees, plus interest, on the ground that this his amounts to the yuirntunt nterit value 01 services rendered in the Oregon Action. Defendants 1 [* 3 ] oppose and cross-move: lor summary judgmcnt dismissing the complaint on the ground that, inler d i u , plaintiff s alleged violation of DR 2-106 D (22 NYCRR 5 1200.11) iiiakc it impossible lor him lo recover i n qirunliim riieri/.; or in the cvctit tlic complaint is not dismisscd, for an order pursuant to CPLR 5 3025 allowing delendants to amcnd their answer lo add a cross- claim for negligent misrepresentation against plaintiff. In action No. 100328/08 (the Doucct Action), Mr. Fischbarg moves to dismiss the complaint tiled against him on tlic ground that it is time barred pursuant to the three year statute of limitations period applicable to a claim for lcgal malpractice. Ms. Doucet and ONAM oppose, arguing that continuous representation tollcd the time limitation. I. Buckground A. Affirmation of Cirhriel Fischharg (the Fischburg Action) Plaintiff avers that in January 200 1, defendants contacted him out of the blue via tclcphonc and requested his representation. Mr. Fischbarg statcs dcfendani-s sent him a letter (thc February 23, 2001 Letter) to further solicit his services. This letter stated, inter alia: Thank you for offering to help us with our legal effbrts concerning Allegro Corporation. Our understanding is that you offcred to take this case on a contingency. Our uiidcrstanding is also, that we only have to pay a deposit of $2,000 against expenses, if you go lorward with this case a f c r revicwing our material. After settlement in or outside of court, the moneys received from Allegro will be split 1/3 (you) 2/3 us, after the deduction of cxpeiises incurred by both parties. Expenses will be rcimburscd before split. Please find the enclosed information.. . I hope this letter and the enclosures will give you a clcar picture of the situation and answer all of your questions. Please [ell lree to contact me or Chuck for any further explanations or backup information. Thank you again for your timc and consideration to look at this complex issue. 2 [* 4 ] Affirmation ol Gabriel Fischbarg, Exhibit C. Plaintiff avers that followiiig the Fcbruary 23, 2001 Letter, he cntcrcd into an oral retaiiicr agrccmciit with defendants to represent them in the Oregon Action. Affirmation of Gabriel Fischbarg, p, 3. I ic claims that the terms o l this hybrid retainer agreement wcrc that plaintiff would rcccivc a one-third contingency lee deducted from any recovery and a $2,000 advanccmciit in legal fces that would be deducted from any recovery and that dcfcndants would be responsible for any incurred cxpcnses. ld. at 4. Plaintiff then states that in 2002, hc withdrew froin reprcscnting dcfcndants in the Oregon Action due l o a dispute over the $2,000 advance. Id. at 3. Mr. Fischbarg argues that he is elititled to the yuanfzim merit value o l his legal services due to a decision rendered by United States Magistrate Judge Dennis James Hubel in the Oregon Action on July 30,2002, in which Judge Hubel hcld that the parties entcrcd into a new fcc agrccmcnt on January 15, 2002. Id. at 4. B. Suzanne Doucet Affidavit Defendant Suzanne Doucet (Ms. Doucet) avers the following. She is the president of defendant ONAM, a California corporation in the music production, publication and distribution business. Prior to 200 1, ONAM entered into several agreements with non-party Allegro C o p . (Allegro), an Orcgon corporation, for the purpose of licensing some of ONAM s rccordcd music. I n or around February 23, 2001, ONAM discovered Allegro was in breach of its contractual obligations and thereby liablc to ONAM for, inter alia, copyright infringement. Defendants subscquently sought counsel in California who would file an action for it against Allegro. Due to ONAM s straiiicd tinaiicial status, it needed an attorney who would take its case on a contingency basis. Not iindiiig counsel to undertake its casc on such tcrms, thc husband of a California music produccr rccoinmciidcd plaintiff to Ms, Doucet, as someone who would agree 3 [* 5 ] to rcpresciit ONAM for a contingency fee. In or around February 2001, Ms. Doucet avcrs she had a telephone conversation with Mr. Fischbal-g and non-party Chuck Plaisance to discuss the spccifics of her case. During this convcrsation, plaintiff allcgedly stated that he was an cxpericnccd trial attorney for thc I opani Law Iirm with knowledgc in the field olcopyright law. Ms. Iloucet further avers she made it clear that Mr. Fischbarg would be required to work on hcr case for a contingency fee. Plaintiff allegedly understood this requirement and asked Ms. Iloucet to forward him sornc documentation so he could review her case. According to Ms. Doucet, plaintifyproposcd that ONAM pay him $2,000 up lkont to cover his expenses and that hc would represent ONAM for a one-third contingency fee. Ms. Doucet then forwardcd Mr. Fischbarg the documents he rcqucstcd along with the February 23 Eettcr confirming their agreement. Affidavit of Suzanne Doucet, pp, 7-8, para. 16. Plaintiff never sent defendants any document confirming this contingency arrangcincnt or outlining the terms of his representation. Nonetheless, Mr. Fischbarg subsequently began to represent defendants in the Oregon Action. Ms. Doucct avers that plaintiffs representation was negligciit and did not adequately meet the standards of the legal proression. She iirst asserts Mr. Fischbarg s advice causcd Allegro lo file suit against her. Ms. Doucet claims plaintiff advised her to write a lcttcr to nonparty Cirain Corp. (Ciram). The purposc of this lctter was to alert Ciram that its continucd production of compact discs for Allcgro was in violation of ONAM s agreement with Allegro. Acting on plaintiffs advice, Ms. Doucet wrote this letter on May 10, 2001, According to Ms. Doucet, Allegro found out about this letter and, t h e r e h e , commenced the Oregon Action. l hus, 4 [* 6 ] as opposed to being able to file suit against Allegro in California, shc was forced to defend herself against Allegro in Oregon. In addition, she claims the answer filed by Mr. Fischbarg in the Oregon Action was deficient since he hiled to allegc the existcncc of willful copyright infriiigcmcnt claiins for over fifty niaster rccordiiigs owned by ONAM. Ms. Doucet avers that properly pleading each counterclaim [ or willl ul copyright infringement would havc sub-ject Allegro to statutory darnagcs of up to $150,000 per violation. Ms. Doucet also claims Mr. Fischbarg filed declarations and signed her name in the Oregon Action without her permission. For example, Mr. Fischbarg submitted filial opposition to Allegro s motion for suininaryjudgcmcnt on Octobcr 29, 200 1, bearing Ms. Doucet s signature. Ms. Doucet avcrs she did not sign the document, never had the opportunity to review it and never gave Mr. Fischbarg the authority to sign her name without permission. Shc additionally avers plaintiff instructed her to lie at her deposition. Ms. Doucct asserts that approximately five minutes before her deposition was set to begin, Mr. Fischbarg told her that in thc cvcnt shc is asked a question regarding the May 10,2001 lcttcr to Ciram, she should deny that it was prepared by him and sent at his suggestion. Affidavit of Suzanne Doucet, p. 15. Moreover, Ms. Doucet also alleges that Mr. Fischbarg failed to coininunicate with her regarding expenses, improperly asserted a lien against her f l e , and iinpropcrly withdrew from the casc. In early 2002, a dispute arose over the parties interpretation of thc $2,000 Ms. Doucet advanced plaintiff. Attached to her affidavit, Ms. Doucet offers a scrics of ciiiails between the partics detailing the discussion surrounding this disagreement. On January 6,2002, plaintiff sent Ms. Doucet aii email asking her to forward him $80 to cover a subpoena service fee, $1,600 for dcposition transcripts, $275 h r a court reporter, and $2,000 lor a Portland attorney. Affydavit 5 [* 7 ] Suzanne Doucet at Exhibit 1. Ms. Doucet responded in two separate ernails on January 7 and January 8, 2002, expressing c o n h i o n over this request since, pursuant to their agrcemcnt, she had already forwarded him $2,000 for expeiises, and any further expciises exceeding this amount she believed should be deductcd at the end of the case. Id. at Exhibits Q and T. Plaintiff responded as follows: The $2,000 you sent me was for my legal fees, not for expenses. My fega1.fie.r are 1/3rd qf any money collected. The $2,000 was an advance on my legal fees for which you will get a credit ii you get money in the litigation (emphasis added). Id. at Exhibit U. Ms. Doucet rcsponded on January 8, 2002, stating that it was her recollection that all expenses incurred after her $2,000 advance were to be deducted from any payout received at the end of thc casc. Id, at Exhibit R . She hrthcr rccommcndcd the parties compile a list to keep track of all incurred expenses to date and also so they could predict who would be responsible for any luture costs that might arise. Id. On Jaiiuary 10, 2002, plaintiff sent Ms. Doucet an email reiterating his position regarding thc partics fcc and expense arrangement. This email stated, inter alia: The arrangement was that my legal fcc is 1/3 of the recovery and expenses come out of 2/3 your part. If you want to change the arrangement by having expenses come out first, and then splitting the rest 1/3 and 2/3, that is fine, BIJT ONLY FOR EXPENSES INCURRED [FROM] NOW ON AND ONLY FOR LITIGATION EXPENSES THAT 1 APPROVE.. . My 1 /3 legal lee will be reduced by the $2,000 you already paid me. Id. Mr. Fischbarg sent Ms. Doucct a follow up cmail on January 13, 2002, telling her that she needed to pay tlic Portland attorney $2,000 as well as $275 for thc court rcporter. Id. Ms. Doucel responded that same day accusing Mr. Fischbarg of altcriiig thcir agreciiient. Id. She also expressed concern over not receiving any invoices regarding the Portland attorney and court 6 [* 8 ] reporter. Id. Ms. Doucet sent plaintiff an email on January 14, 2002, in which she stated her intcntion to fax him a ccopy of the February 23 Letter which states clearly that the $2,000 are an advaiice against expenses, l his letter confirms our agreement, you have never sent tnc anything to the contrary. Your demands and requests are not in accord with this agreement. Id. at Exhibit V. Plaintiffrcspondcd that same day by stating that Ms. Doucet was wrong. The $2,000 is not an advance against expenses. The $2,000 is for my lcgal fees. Id. at Exhibit W Ms. Doucet responded on January 14, 2002, by reaffirming her position that the $2,000 was lor expenses, not legal k e s . See Id. at Exhibit X. Mr. Fischbarg responded in two separate emails on January 15, 2002, as follows: I am not wrong. I know we spoke after that lettcr in February and corrected the language in it. Sincc wc have [a] dispute, I can not repmseni you nnymore. Please hire another lawyer to continue this casc. As I previously einailed you, J have spent $100.00 as the lee to admit ine as your lawyer in Oregon, approximately $80.00 for Federal Express charges and approximately $120.00 for buying various Allegro CDs. Since you are hiring anothcr lawyer to replace me, I will get my expenses buck at the end qf ihc case together with a fuir 1egul.fee.for the work I have done so,far. Please let me know when you have found a new lawyer (emphasis addcd). Id. at Exhibit Y. Ms. Doucet accepted plaintiff s resignation via email that saine day and asked him to forward all of his matcrials to an attorney named Mike Cohen of Schwabe, Williainson & Wyatt in Portland, Oregon who would be taking ovcr the case. Id. at Exhibit Z. She also askcd plaintiff to deduct any out of pocket cxpenses he incurred lrom the $2,000 advancement he received back in 2001. Id. Mr. Pischbarg, responded: You don t undcrstand. I have placed a lien on IheJiles and am entitlcd to gct paid for my reasonable attorneys k e s for the work I have performed to date plus my expenses before you can substitute another attorney for me. I will not wait until the end of the case. You can get the files in the case and substitutc another attorney only when you pay me my legal k e s and expenses (emphasis added). 7 [* 9 ] Id. at Exhibit AA. On February 13, 2002, Mr. Fischbarg sent the lollowing einail to Ms. Doucct and her new counsel in which he noted. inter diu: AAer talking to you, Chuck and Michael Cohen on Friday, I wanted to make sure you understood what will happen in the f'uture if you don't want me continue working on the case. First, I will immcdiatcly get a judgement issued by tlic Portland judge against you and [ONAM] lor the value of my legal fces to date which are at lcast $60,000. Then, ii'you do not pay me thc judgment, I will enter that judgrncnt in California and procccd with seizing your assets and the assets of [ONAM]. In addition, any proceeds from this lawsuit will be used to pay nic first. My judgrncnt against you will show up on your credit report and you will be unablc to Gnance the purchase of many things including a car, a house, a relrigerator, etc. You will also not be able to get a new credit card or a cell phonc ... I bclieve that the smart thing for us to do is to set aside the $2,000 dispute and allow me to continue representing you and [ONAM], If we get money from Allegro at the end o l the case, the $2,000 disputc can bc resolved at that stage. Id. at Exhibit BB c. Decision by United States Mugistrute Judge Dennis ,James Hubel On March 18, 2002, defendants filed a motion in the Oregon Action to compel plaintiff' to turn over the case file to their new counsel. Mr. Fischbarg cross-moved for the immediate payment of' his legal iees arguing that he had placcd a lien on def'endants file and was thus entitlcd to a paymcnt of $57, 906 for his services. In a decision dated .luly 30, 2002, Hon. Dcniiis James Hubel granted defendants motion to cornpcl and denied Mr. Fischbarg's motion for legal lees. Fischbarg Allidavit, Exhibit D at p. 12, In making this decision, Judge Hubcl hcld: There is no written lee agreerncnt cntcred into in this case ...The terms Ms. Bell-Doucet recited in [the Pcbruary 23, 2001 Letter] are consistent with thosc of a standard contingent fee agreement. Tlicre is no evidence that Mr. Fischbarg disagreed with anything in this letter verbally or in writing. The January 15 e-mails constituted an offcr by Mr. Fischbarg to which Ms. Iloucct 8 [* 10 ] accepted, instructing I i i i i i to deduct his current expenses froin thc $2,000 advance. Mr. Fischbarg s subsequent response was a unilateral attcmpt to change the terms of tlic offer he had previously made Ms. Bell-Doucet and which shc had accepted. Mr. Fischbarg s statement that he was placing a lien on the files contradicted the agreemciit he and Ms. Hell-Doucct liad just madc. Because Mr. Fischbarg iiiadc an offer in writing, which Ms. Bell-Doucet accepted, to be paid his expenses and a Fair legal lee ut the conclusion ofthc case, hc should be held to that agreenicnt. I hc agrccmcnt was made before Mr. Fischbarg asserted a lien and before he demanded the sum of$57,906. Mr. Fischbarg s attempts to asscrt a lien and demand a liquidated amount were in breach ofthe agreeincnt hc and Ms. Bell-Doucet had made ... Even without tlic Jatiuary 15, 2002 writtcn agreement, Mr. Fischbarg s entitlement to $250 an hour times the number of hours expanded 011 this case is problematic. Under New York law, an attorncy dischargcd without cause is only entitled to recover on a quantum iiicrit basis ... Tlic fact that Mr. Fischbarg has been accused of misconduct imposes an additional obstacle to his demand of an immediate payment of a liquidated amount. Undcr New York law, when an attorney is discharged with sufficient causc, the attorney has no right to recovery o l fees.. . Mr. Fischbarg cannot deinonstratc that hc is entitled to the immediate payment of $57,906.05 in attorney fees. Id. at pp 5, 7-8, 10-1 1. D. Affidavit of Neville Johnson Following Mr. Fischbarg s departure, the law firm of Johnson and Rishwan LLP (IK) took ovcr as counsel lor defendants in the Oregon Action. Neville Johnson, Esq. who was JR s lead trial counsel in tlic Oregon Action, submits an affidavit in support of defendants motion. Mr. Johnson states that his firm had to conduct entirely new depositions of Allcgro cmployees Vincent and Joe Micaleff due to Mr. Fischbarg s failurc to adcquatcly question them. He Iurther asserts that plaintin did not do his due diligence in discovery by not: hiring any experts, conducting any research regarding damages, obtaining Allegro s sales records (which Mr. Johnson clainis arc vital in a case lor copyright infringement), or identifying any witnesses on 9 [* 11 ] defcndants' behalf. In addition, Mr. Johnson claims plaintiffs refusal to cooperatc with 1 3 after his 1 resignation hampered their ability to adcquatcly represent dekndants in the Oregon Action. He states that MI+.Fischbarg failed to idcntify a clear conflict of interest that existed bccause the firm reprcscnting Allegro had drafted the contract which was the subject of tlic Orcgon Action. JR's idcntification of this conflict resulted in Allegro having to change counscl. Allegro's predecessor law f i l m cndcd up contributing money towards the eventual settlement of the case. According to Mr. Johnson, had Mr. Fischbarg identified this conflict right away, it is possible that an early settlement of the case could have been reached at a substantial savings in legal fces to defendants. According to Mr. Johnson, plaintiff's most cgrcgious error was his failurc to adequately plead claims for willful copyright infringcrnent in the Oregon Action. This failure deprived dcfcndants of thcir ability to recovcr the substantial amount of attorneys fees to which they were entitled under the Copyright Act. E. Reply Ajjirmation qf Gubriel Fischharg Mr. Fischbarg contends that he could not filc a lawsuit when deiendants first contactcd him in 200 1 becausc ON AM had not applied for all 01' the copyright registrations it needed to file such a lawsuit. Specifically, as of February 2001, Mr. Fischbarg states defciidants did not have copyright registration for all of the musical works subjcct to its dispute with Allegro. Defendants filcd soine of these registrations in March 2001, but did not have cnough money to file all of them. Allegro thus fjlcd suit beforc all of thcsc registrations were complete. Defendants continucd to file copyright registrations after thc comincnceincnt of thc Orcgon Action. In f k t , 10 [* 12 ] Allegro pled ONAM s fiilure to register all copyrights as its sixth affirmative defensc in response to del endants counter claims. Reply Affidavit of Gabriel Fisclibarg Exhibit P. Plaintiff asserts that hc adequately pled thc copyright infringcnient claims in dcfciidants answer. Mr. Fischbarg states that based upon fundamental principles of copyright law, a dcterniination ol whether an infringement is willful or non-willful is a question ol lact and thc ainount of damages to be assesscd is within the court s discretion. He fiirtlicr avers that siiicc the allowable statutory rangc for damages in a claim for copyright infringcnient ranges froin $0 up to $1 50,000, dcfcndants did not want lo risk thc court making a finding of non-willful infringement and awarding them niinirnal damages. Therefore, he decided to pursuc dcfendants claims under a theory of brcacli of contract. Mr. Fischbarg also avers that he had authority to sign court documents on Ms. Doucet s behalf. Hc argucs that Oregon law permits an attorney to sign on bchalf of a client without the clients pcrmission. Rcgarding the opposition to Allegro s motion for summary judgement on October 29, 2001, bearing Ms. Doucet s signature, Mr. Fischbarg avcrs he went over the document with her for two hours on Octobcr 28,2001, He argues Ms. Doucet consented to his signing the document on her behalf so the papers could bc timely submitted the ncxt day. Mr. Fischbarg also asserts lie never instructed Ms. Doucet to lie during her deposition. Regarding Mr. Johnson s affidavit, plaintiff asserts that he conductcd a great deal of discovcry prior to his withdrawal. Plaintiff claims he accumulated approxitnatcly 2,000 pages of sales records from Allegro and notes that since discovery was still ongoing when he withdrcw, any criticism by Mr. Johnson is without merit. In addition, Mr. Fischbarg notes that Mr. .lohnson s claims regarding his failure to identi@ the conflict of interest that existed is based 11 [* 13 ] upon pure speculation. 1 1 Conclusions of Lciw A. Summary .Judgment Motions in The Fisohbarg Action It is well estabIished that summary judgment may be grantcd only when it is clear that no triable issues of Piact exist. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325 (1986). The burdcn is upon the moving party to make aprima fi-rcic showing ofcntitlcincnt to summary judgrncnt as a matter of law. Zuckermun v. City Of'New York, 49 N.Y.2d 557, 562 (1980); Friends qf'Animul,s., Inc. v. Associcrleu'Firr h4jl,r., Inc., 46 N.Y.2d 1065, 1067 (1979). A fiilure to make aprima fucie showing requires a denial of the summary judgment motion, rcgardless ofthe sufiicicncy of the opposing papers. Ayotte v. Uervusio, 8 1 N.Y.2d 1 062, 1063 ( I 993). If a prima*fh-cieshowing has been made, the burden shifts to the opposing party to produce evidcntiary proof sufficient to establish the existence of material issues of fact. Alvarez, supru, 68 N.Y.2d at 324; Zuckcrmun, supra, 49 N.Y.2d at 562. 'l'hc papers submitted in support of and in opposition to a summary judgment motion are examined in a light most favorable to the party opposing the motion. Martin v. Briggs, 235 A.D.2d 192, 196 (1 '' Dept 1997). Mere ~onclusions, unsubstantiated allegations, or expressions of' hope are insufficient to defeat a summary judgement motion. Zuckerman, supra, 49 N.Y.2d at 562. Upon thc completion o l the court's cxaminatiori olall the documents submitted in connection with a summary judgment motion, the motion must bc dcnied if there is any doubt as to the existence of a triable issue of (act. Rolubu Lxtrzrders, Inc. v. Ceppos, 46 N.Y.2d 223, 23 1 (1978). In his July 20, 2002 decision, Judge Hubcl licld that the parties entered into a new contract on January IS, 2002, replacing thcir previous contingent fee agreement. Judge Hubel 12 [* 14 ] found that Ms. Doucet had accepted Fishbarg s January 15 offer of a new agreement. Both offkr and acceptance were in writing. This court is bound by Judge Hubcl s tindings. Xyun v. New York Telephone ro.,62 NY2d 494, 500 (collateral estoppel allows determination of issue of facl or law raised in subsequent action by refcrcnce to previous judgment on which dilferent cause of action where same issue was raised and decided). Indccd, Ncw York permits a client to ratify a new lee agreement in the course o l representation. King v. Fox, 7 NY3d 18 1, 190-193 (2006). Such ratification may occur at any time, so long as the client has full knowledge ofthe relevant facts (including the terns of the agreement and the choice to disavow it) and has acquiesced. Id. at 19 1. Thus, [wlherc a fully informed client with cqual bargaining power knowingly and voluntarily alflnns an existing lee arrangement that might otherwise be considered voidable as unconscionable, ratification can occur so long as the client has both a full understanding of thc facts that made the agreement voidable and knowledge o l his OF hcr rights as a client. Id. at 19.7. At the time Ms. Doucct ratified the new agreement, she was represented by other counsel. Further, a clicnt in Ncw York may terminate a contingency fee agreement at any time, leaving the lawyer with a cause of action for quantum meruit. Id. at 192. Finally, the fact that the fee agreement was not a ibrmal written retainer created by Mr. Fischbarg does not preclude him horn attempting to collect his fee. Mintz & Gold, LLP v. Hurt, 48 AD3d 526 (2d Dept 2008) (abscnce of written lettcr of engagement or retaincr agreement does not precludc plaintiff law firm from collecting legal fees); C hase v Rowcn, 49 AD3d 1350 (41hDept 2008) (plaintiff entitled to trial to establish gucrnfurri merit valuc of services despite failure to providc defendant with letter of engagement or written retainer); NicolZ& Duvis LLP v. Ainetchi, 2008 NY Slip Op 5763 (1 Dept 2008) (plaintiff law firm s failure to comply with retaincr agreement rules does not preclude it from suing to recover legal lees lor serviccs providcd). 13 [* 15 ] Judgc Hubcl, howcvcr, left open the question of whether Fishbarg was guilty of misconduct, thereby vitiating his right to any fccs. Defendants raise allegations of both misconduct and ineffective representation. Mr. Fischbarg conlests these allegations. The allegations of inalpracticc arc hereafter dealt with by the court. I n addition, Mr. Fishbarg s cffectivcncss arc part and parccl of any assessment ofhis quantum meruit fee. But issues of misconduct remain. Consequently, Mr. Fishbarg s motion for summary judgment is dcnied. B. Mdpractice: Motion to Amend in the Fischbarg Action und Motion f b r Sumrrilrry Judgmenl in The Doticet Action Defendants both in their motion to amend their verified answcr in the Fischbarg Action and in thc Iloucct Action raise a cause of action for attorney malpractice. Mr. Fishbarg argues that this cause of action is barred by the statute of limitations. Mr. Fischbarg commenced his action for legal fees on or around January 3 1,2005. Thereafter, defendants made a motion to dismiss for lack of personal jurisdiction. The motion was denied on October 24, 2005. Defendants subsequently timely served their verifled answer on December 15,2005, and asserted as their second affirmative defense that Mr. Fischbarg s representation in the Oregon Action was negligent. In their verified answer, defendants asked L e court for the right to assert a Counterclaim against plaintiff upon the facts alleged in the Second AlErmative Defense ...[or damages ...in thc cvcnt that it is ultimately concluded that tlic Court has jurisdiction over the persons of defendants. The Doucet Action alleging legal malpractice Quunlum merit is measured by thc fair and reasonable value o r the services rendered. Matter cfCnoperrrrnn, 83 NY2d 865 (1 994). Factors to be considercd in assessing the reasonable value oi services rendered include the: time spent; difficulties involved; nature of the services rendered; amount of money involved; professional standing of the attorney; resulls obtained and the amount customarily charged lor similar services in the same locality. h g e r v. Suhato, 229 AD2d 884, 887 (3rdDcpt 1996). Defendants appealed the denial oftheir motion to dismiss, and on March 13, 2007, the Appellate Division aftirined the denial. During the appeal, an interim stay was granted. Thc 14 [* 16 ] against Mr. Pischbarg was commenced on January 9, 2008. A defendant entitled to dismissal based upon a statute of limitations delense must rnakc a prima hcie showing that the alleged legal malpractice was iiled morc than three years after accrual of the cause of action. Husty Hills Slahles, Ino v. Dorfman, /,ynch, Knoebel & C onwuy, l,l,f ,2008 N Y Slip Op 5479, 3 (2d Dept2008) citing CPLR 214(6); Kachlin v LaRcissa, Michell8 Koss, 8 A.D.3d 46 1 (2d Dept 2004). A legal malpracticc cause of action accrues on the date the alleged malpractice was committed, not when it was discovered. Hus/y IIills, 2008 NY Slip op at 3 citing Shairnsb v. Eisenstcin, 96 NY2d 164, 166 (200 1); McCoy v. Fcinman, 99 NY2d 295 (2002) (what is important is when inalpractice was committed, not when client discovers it. Though courts recognizc toll on thrce-ycar limitations period under continuous representation doctrine, courts have recognized no exception to measuring accrual date from date of injury caused by attorncys malpractice. Key issue is when plaintiffs actionable injury occurred). The three-years, however, are tolled while the attorney continues to rcpresent the client on the same matter alter the alleged malpractice has taken place. Hasty Hills, 2008 NY Slip op at 3 citing Shumsky, 96 NY2d at 168. The toll occurs because a person seeking professional assistance has a right to repose confidence in the professional s ability and good laith, and realistically cannot be expected to question and assess the techniques employed or the manner in which services are rendered. Greene v. Greene, 56 NY2d 86, 94 (1 982). Accord Shumsky, 96 NY2d at 70; Wcs1 Vill. Assoc,~Ltd. P s h b v. Ralber Pickard Battistoni Muldoncrdo & Ver Dan Il uin, PC, 49 AD3d 270 (1 Ilcpt 2008). Hcrc, Mr. Fischbarg ceased rcprcscnting Ms. Doucct and ONAM in thc Oregon Action on instant niotioii and cross-motion werc both f l e d in November 2007. On Decernbcr 20, 2007, thc Court of Appeals affirmed thc Appellate Division dccision. 15 [* 17 ] January 15, 2002. All of the alleged rnalpracticc against Mr. Fischbarg, thus, took place prior to January 15, 2002. At the earliest, allegation o l rnalpracticc wcre raised in dcfcndants answcr on December 15,2005, well beyond the three ycar bar. The h c t that thc case continucd with other counsel does not change this result. See TVGA Lqq g, Surveyiying, P.C . v. Gallick, 45 AD3d . . 1252, 1257 (4Ih Tlcpt 2007) quoting Glamm v. Allen, 57 NY2d 87, 94 (1 982) (application of continuos representation doctrinc limited to situations in which the attorney who allegedly was responsible for the malpractice continucs to represent the client [asscrting the malpractice claim] in that case. When thc rclationship ends, lor wliatevcr reason, the purpose for applying thc continuos representation rulc no longer exists. ). Ncither the amendment of the answer nor the malpractice action, therefbre, arc timely. Accordingly, it is ORDERED that plaintiff Gabriel Fischbarg s motion for summary judgment in action No. 10 1427/05 is denied; and it is further ORDERED that defendants cross-motion for summary judgment in action No. 101427/05 is denied; and it is further ORDERED that delendants motion in action No. 101427/05 for leave to amcnd their verified answer is denied, and the second affirmative defense contained in del endants verified answer alleging negligent representation is dismissed; and it is further ORDERED that Gabriel Fischbarg s motion to dismiss action No. 100328/08 is grantcd with pre+judiceand the Clerk is directcd to enter judgment for Mr. Fishbarg and against Suzanne Doucet and Only New Age Music, Inc. in action No. 100328/08, with costs upon submission of a bill of costs. I, Date: July New # _

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