Landau, P.C. v Oliveri & Schwartz, P.C.

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Landau, P.C. v Oliveri & Schwartz, P.C. 2011 NY Slip Op 33415(U) December 12, 2011 Supreme Court, New York County Docket Number: 601131/2007 Judge: Saliann Scarpulla 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. , O N I212312011 [* 1] I- SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART - r4 . Index Number : 601 131/2007 INDEX NO. LANDAU P.C. vs. OLIVER1 & SCHWARTZ MOTION DATE MOTION E O . NO. MOTION CAL. NO. SEQUENCE NUMBER : 004 - SUMMARY JUDGMENT I this motion tolfor I Notlce of Motion/ Order to Show Cause - Affidavits - Exhibits ... Anawering Affldavits - Exhibits Replying Affldavlts Cross-Motion: 0 Yes c No ] Upon the foregoing papers, it la ordered that this motion t7 & bdtd FILED NEW YORK COUNTY CLERK S OFFICE Check one: 0 FINAL DISPOSITION Check if appropriate: fl A DO NOT POST 0 SUBMIT ORDER/ JUDG. V NON-FINAL DlSPOSlhON fl REFERENCE u SETTLE ORDER/ JUDG. [* 2] Plaintiff, Index No.: 60 1131/2007 Submission Date: 09/14/20 11 - againstOLIVERI & SCHWARTZ, P.C., Defendants. X ______r-~---____---_ ~-----~~~~-----~-------~~-~------------- For Plaintiff: Morton Povman, P.C. 108-18 Queens Boulevard Forest Hills, NY 11375 For Defendants: David Seth Michaels 1028 Route 203 Spencertown, NY 12165 Papers considered in review of this motion for summary judgment: Affirmation. . . . . . . . . . . . . . . . .1 Mem. Of Points and Authorities. . . . . . . . . . . . . . . . . ..2 Aff in Opposition. . . . . . . . . . . . . .3 Reply Affirmation. . . . . . . . . . . ..4 HON. SALIANN SCARPULLA, J.: In this action to recover attorney referral fees, defendant Oliveri & Schwartz, P.C. ( Oliveri ) moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against it. This action arises out of an alleged client referral agreement between Oliveri and Morris J. Eisen ( Eisen ). Eisen served as the managing partner of the law f r Morris J. im Eisen, P.C. from 1974 until 1992. In 1991, Eisen was convicted in federal court of bribery, mail fraud and racketeering. As a result of this conviction, Eisen was disbarred 1 [* 3] I - - on January 23, 1992. Thereafter, Eisen resigned as Morris J. Eisen, P.C. s managing partner and transferred all his shares in the fr to his daughter, Debbie Landau, an im attorney duly licensed to practice law in New York. In September 1992, the firm s name was officially changed to Landau, P.C. ( Landau ). Landau pleads four causes of action in its complaint. In the first cause of action Landau alleges that Oliveri breached a referral agreement the parties entered into prior to Eisen s disbarment. Under this alleged agreement, Eisen would refer clients to Oliveri and receive 50% of the net legal fees if Oliveri settled the cases and 33 1/3% of the net legal fees if Oliveri tried them to verdict. Landau s complaint includes a partial list of clients Eisen allegedly referred to Oliveri, and Landau alleges that some of these cases have been settled or tried to verdict. The second cause of action is for unjust enrichment. In this cause of action Landau alleges that Eisen performed uncompensated work on the cases he referred to Oliveri. In its third cause of action, Landau alleges that it has a charging lien on the referred cases. In its fourth cause of action Landau demands an accounting of all amounts Oliveri collected on the cases Eisen referred, all amounts to be due at future dates, the status of all other cases where Eisen was the attorney, and access to information relating to the referred cases. In its verified bill of particulars, Landau provided the dates of settlement or verdict on twenty four of the cases listed in the complaint, many of which occurred after Eisen s 2 b [* 4] disbarment. Landau also described, in general terms, the work Eisen completed on the referred cases prior to his disbarment. Thus Landau stated that Eisen interviewed the client, did an investigation, secured records and performed other services related to the case. Landau did not affirm that Eisen had appeared as the attorney of record in any of the actions. Further, Landau stated that it had not made an application in court for an order to fix compensation on the referred cases. Oliveri now moves for summary judgment dismissing the complaint, arguing that Landau is not entitled to any referral fees because Eisen s disbarment occurred during the pendency of the actions. Oliveri argues that the unjust enrichment cause of action fails because Landau did not provide the clients with the required notice of this action. Oliveri also maintains that Landau is not entitled to a charging lien because Eisen never appeared in any of the alleged actions. Lastly, Oliveri contends that the complaint cannot state an accounting cause of action because there is no fiduciary relationship between Landau and Oliveri. In opposition, Landau maintains that it is entitled to the contractual referral fee for all referred cases that were resolved by settlement or trial before Eisen s disbarment in 1992. Landau also argues that it will give notice to the plaintiffs on the unjust enrichment cause of action when it learns their names and addresses after further discovery. 3 [* 5] Discussion - A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 85 1, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City o New York,49 N.Y.2d 557 (1980). f Here, Oliveri has not submitted sufficient evidence to show its entitlement to summary judgment as a matter of law dismissing the breach of contract cause of action in its entirety. A disbarred attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar. 22 NYCRR 5 603,13(b); Rothman v. Benedict P. Morelli & ASSOC., P.C., 43 A.D.3d 769, 769 (lstDept. 2007). However, a disbarred attorney may earn commission on cases settled prior to Dept. 2003). In its complaint disbarment. Eisen v. Feder, 307 A.D.2d 817, 818 (lSt Landau listed a number of cases allegedly subject to the referral agreement. While in its verified bill of particulars Landau was unable to confirm the settlement or verdict dates of many of the referred cases, and some of the confirmed settlementherdict dates were after Eisen s disbarment, at least some of the settlementlverdict dates that Landau did provide were before Eisen s disbarment. 4 [* 6] As both parties acknowledge, not much discovery has taken place in this action. There has been minimal exchange of documents, and no depositions have taken place. At this point Landau is only entitled to summary judgment on the breach of contract cause of action as to those cases subject to the referral agreement which were settled or tried to verdict after Eisen s disbarment. However, Oliveri is entitled to judgment as a matter of law on the unjust enrichment cause of action. A disbarred attorney may make an application to recover on a quantum meruit basis for legal services the attorney provided before disbarment, 22 NYCRR 5 603.13. The amount and manner of payment of such compensation . . . shall be fixed by the court . . . on notice to the other as well as on notice to the client. 22 NYCRR 5 603,13(b). Landau admits in its opposition papers that it h a not given any clients notice of this lawsuit or notice that Eisen has made a claim for legal fees. Thus, the unjust enrichment cause of action must be dismissed. See Rothman, 43 A.D.3d at 770 (dismissing disbarred attorney s unjust enrichment cause of action arising out of alleged client referral agreement because here [was] no evidence that any of the clients were given the requisite notice of [the] application ). Further, Landau is not entitled to a charging lien on the referred cases. A charging lien is only available to attorneys who have appeared for parties by participating in a legal proceeding on the client s behalf or by having his [or her] name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter. 5 [* 7] Ebert v New York City Health I& Hosps. Corp.,2 10 A.D.2d 292, 292-93 (2d Dept. 1994). Here, Landau does not allege, either in its complaint or in its verified bill of particulars, that Eisen actually appeared for any of the referred clients, thus Landau has failed to state a claim for a charging lien. See Rothman, 43 A.D.3d at 770 (dismissing a charging lien cause of action where the complaint did not allege that plaintiff, a disbarred attorney, appeared in any of the actions that plaintiff allegedly referred to defendant). Lastly, Landau's accounting cause of action is dismissed. The right to an accounting only exists where there is a fiduciary relationship between the parties. Palazzo v. Palazzo, 121 A.D.2d 261,265 (1" Dept. 1986). Here, the alleged referral contract between Eisen and Oliveri in and of itself did not establish a fiduciary relationship between them. In accordance with the.foregoing, it is hereby ORDERED that defendant Oliveri & Schwartz, P.C.'s motion for summary judgment dismissing the complaint is granted to the extent that the Court dismisses the breach of contract causes of action relating to all cases settled or tried to verdict after Morris J. Eisen's disbarment; the second cause of action for unjust enrichment; the third cause of action for a charging lien; and the fourth cause of action for an accounting. That part of the breach of contract cause of action relating to cases settled or tried prior to 6 [* 8] Eisen s disbarment is severed and shall continue. The parties are directed to appear for a conference on February 1, 20 12, at Part 19, 80 Centre Street, Room 279, at 2: 15 p.m. This constitutes the decision and order of the Court. Dated: New York, New York December 1% 201 1 ENTER: I NE& YORK COUNTY CLERKS OFFICE 7 -

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