Filemyr v Gager

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[*1] Filemyr v Gager 2019 NY Slip Op 51786(U) Decided on November 8, 2019 Civil Court Of The City Of New York, New York County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2019
Civil Court of the City of New York, New York County

Edward Filemyr, Plaintiff

against

Barbara Gager, CRYSTAL EDWARDS, CATHLEEN MACKEY, Defendants



CV 17306/18/NY



EDWARD FILMYR, ESQ

Attorney for Plaintiff

1 Park Place

Suite 1212

New York, New York 10007

CRYSTAL EDWARDS

Defendant, pro se

BARBARA GAGER

Defendant, pro se

CATHLEEN MACKEY

Defendant, pro se
Sabrina B. Kraus, J.

BACKGROUND

Plaintiff commenced this action pursuant to a summons and endorsed complaint filed on July 20, 2018, just days prior to the expiration of the applicable statute of limitations, seeking $7,488.68 for legal fees incurred in connection with his retention by defendants to appear in opposition to an order to show cause in Supreme Court in 2012.

The endorsed complaint asserts only a cause of action based on an alleged breach of contract.

On August 13, 2018, defendants appeared pro se and filed answers and counterclaims. All three noted that plaintiff had been discharged as their counsel shortly after being retained. An initial court date was set for September 12, 2018, the parties appeared and the action was adjourned to November 16, 2018, for conference.

On December 19, 2018, plaintiff moved for an order precluding defendants from offering evidence in support of their counterclaims, based on their failure to provide responses to a verified bill of particulars. Defendants failed to appear, and the motion was granted by the court (Kenney,J) on default.

On July 23, 2019, plaintiff moved for partial reconstruction of the court file and summary judgment on the counterclaims. On September 19 2019, defendants moved to vacate their default in appearing on December 19, 2018 and the order of preclusion.

On September 20, 2019, this Court consolidated the motions for determination, denying restoration of the counterclaims and setting a trial date for November 8, 2019.

On November 8, 2019, the action was referred to this Court for trial. The court held a trial and reserved decision.



FINDINGS OF FACT

Plaintiff testified on his own behalf at trial. Plaintiff testified that he was admitted to practice law in 1985, and that in 1990 he opened his own firm. Since that time he has primarily represented HDFCs, shareholders in HDFCs and clients in landlord tenant litigation. Plaintiff billed defendants at the rate of $225.00 per hour, which the court finds to be a reasonable rate in light of his experience.

In late July 2012, plaintiff was retained by five shareholders/board members in 1809-15 7th Avenue HDFC (the HDFC) to represent them in connection with an action commenced in Supreme Court, New York County, under Index Number 652452/2012 (Supreme Court Action) which sought to challenge their election to the board.

The five board members were Barbara Gager (Gager), Sherry Bailey (Bailey), Crystal Edwards (Edwards), Cathleen Mackey (Mackey) and Oki Sami Anas (Anas). All five signed a single retainer agreement with plaintiff on July 23, 2012 (Ex 1).

The retainer provided in pertinent part:

It is understood that the undersigned are all shareholders of 1809-15 7th Avenue HDFC and have retained the law firm to provide services in connection with defending a lawsuit arising from a contested election of Directors of the Corporation and not for the individual or personal benefit of any of the undersigned. The scope of services to be provided are; representation concerning issues relating to said election of members of the Board of Directors of the Corporation and the holding of a proper election for Directors of the Corporation and improper acts by members of the Board of Directors as well as invalid acts or resolutions of said Board, including litigation, if necessary. It is acknowledged that provision of services pursuant hereto commenced on July 16, 2012.

On July 16, 2012, Nora Arthur, Michele Morgan, Diebe Rondon, Domingos Calaz and Michael Maschio, as Shareholders, Directors and Officers of the HDFC commenced the Supreme Court Action against the five individuals who had retained plaintiff as well as Christopher C. Woodley and Woodley Real Estate Group. The Supreme Court Action was commenced by the [*2]filing of a summons and complaint and an Order to Show Cause seeking a TRO against defendants from exercising authority to act or hold themselves out as HDFC Board members, and from the Woodley defendants as acting as managing agent for the HDFC. The Order to Show Cause was returnable on July 19, 2012.

Plaintiff represented defendants through August 3, 2012, when the three defendants in this case terminated his representation through Ms. Gager. Plaintiff subsequently confirmed the termination of his representation with each of the three defendants individually.

Plaintiff submitted invoices for billing (Ex 13). Plaintiff only sent the invoices to Gager and never mailed the invoices to either of the other two defendants herein. Plaintiff did not advise any of the three defendants herein that there were any sums due to him at the time they terminated his representation.

Defendant Gager testified that she never received any invoices from plaintiff.

Plaintiff seeks judgment in the amount of $7,488.68 for work done from July 16, 2012 through September 18, 2012. All invoices after said date seek interest only. The total amount alleged due as of the October 18, 2012 invoice was $4,549.54 (Ex 13).

Edwards and Mackey credibly testified that they each gave $200 in cash to be paid towards the retainer plaintiff.

The defendants were not happy with plaintiff's representation of them on the July 19, 2012 court date. Their main complaint was that plaintiff failed to object to an attorney and father of one of the plaintiff's in the Supreme Court Action participating in the court proceedings on that date.

Plaintiff continued to represent Bailey and Anas in the Supreme Court Action after he had been terminated by the defendants herein. Plaintiff produced no records at the two day bench trial as to how much he was paid by Bailey and Anas or how much he billed them.



DISCUSSION

Under New York State Law a client has an absolute right to terminate the attorney-client relationship at any time without cause, and the attorney may not sue that client for breach of contract (Demov, Morris, Levin & Shein v Glantz 53 NY2d 553).

Therefore once an attorney has been discharged by his client, the client is liable to pay only for the reasonable value of service rendered by him up to the time of discharge (Martin v Camp 219 NY 170).

Based on the foregoing, the court will not assess damages based on a breach of contract claim, but instead on a quantum merit basis. The amount due must be based on the reasonable value of the services provided by plaintiff to defendants from July 16, 2012 through August 3, 2012, which the court finds to be the date plaintiff was terminated by the three defendants herein.

The total number of hours plaintiff alleges he spent on this matter for that period are covered in the first invoice of Exhibit 13, which is dated August 10, 2012. That invoice lists a total of 22.50 hours totaling $5,062.50. The only time the court will disallow from said billing is the 1.6 hours for drafting an answer and counterclaims, as this instrument was never filed on behalf of defendants herein, but only filed on behalf of Bailey and Anas, the two board members who continued on with plaintiff as counsel.

Thus, the hours are reduced to 20.9 hours totaling $4702.50. As all five board members benefitted from this work the court will only assess three fifths of the time as being attributable to [*3]the defendants herein, which reduces the value of the services rendered to $2,821.50. Plaintiff acknowledges $300 of this amount was paid by check. The court credits the testimony of Edwards and Mackey that they each paid $200 in cash as well.

Based on the foregoing, the court finds that there is $2121.50 due to Plaintiff. Judgment is therefore awarded against each of the three defendants individually in the amount of $707.17, along with costs and interest from July 20, 2018.

This constitutes the decision and order of this court.



Dated: November 8, 2019

New York, New York

_________________________

Hon. Sabrina B. Kraus

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