66 A.D.2d 686 | N.Y. App. Div. | 1978
Supreme Court, New York County, entered February 22, 1978, unanimously affirmed. Defendants-respondents and third-party plaintiffs-respondents shall recover of appellant $75 costs and disbursements of this appeal. Plaintiff, as assignee, appeals from an order which denied her motion for summary judgment in this action to recover legal fees alleged to be improperly retained by defendants, who represented her in the underlying negligence action. Plaintiff had been injured in an automobile accident which occurred in August, 1969. Allegedly at the instance of Brian Oberman, an attorney who was her flaneé, she retained defendant’s predecessor, O’Hagan & Reilly, to represent her in the negligence suit. Plaintiff and Oberman were subsequently married. Prior to institution of this action, Oberman assigned to plaintiff his share of the legal fees, admittedly to avoid payment of income taxes on his share of the fee. The parties dispute the circumstances under which the retainer was executed. One retainer dated September 16, 1969, lists both Mr. Oberman and defendants’ predecessor as cocounsel. Defendants claim that Oberman’s name was added to the retainer at a later date, evidenced by the fact that the original retainer filed with the Judicial Conference does not contain his name. In addition, Oberman has produced still a third retainer agreement, dated October 28, 1969, which lists only Oberman as counsel. It is undisputed that that retainer was never filed with the Judicial Conference. Although the existence of the various retainers invites further inquiry, that circumstance is not dispositive. Undisputed is the fact that defendants’ predecessor wrote to Oberman on July 14, 1970, confirming their understanding that upon recovery in the negligence action "whether by suit, settlement or otherwise, you are to receive one-half of the attorneys’ fee in this matter.” The letter was signed by Peter Reilly and consented to by Brian Oberman. Although defendants do not deny that the letter was sent, establishing an equal division between the attorneys as to any fee recovered, defendants in their answer assert by way of counterclaim a cause of action to rescind the letter agreement upon the ground that Oberman did not contribute any work, labor or services in the prosecution of the underlying negligence action. Whether or not Oberman actually performed any services in connection with the negligence action cannot be disposed of on this record. The papers submitted before Special Term are insufficient to decide the issue as a matter of law. Although defendants have failed to submit affidavits by persons with requisite knowledge of the facts as required (CPLR 3212, subd [b]), the moving papers are inadequate to finally dispose of
