144 A.D.2d 189 | N.Y. App. Div. | 1988
Appeal (1) from an order of the Supreme Court (Mercure, J.), entered August 21, 1987 in Warren County, which directed plaintiffs’ former attorney to return to plaintiffs a retainer, and (2) from a judgment entered thereon.
Plaintiffs hired Andrew F. Capoccia and Andrew F. Capoccia, P. C., to represent them in the underlying action and paid $5,000 pursuant to a retainer agreement. Joseph Cardamone, an associate of Capoccia,
At the hearing, it was undisputed that Capoccia performed some work on the underlying action. Plaintiff Suzanne Potts testified that meetings were held with Capoccia and Cardamone and that some pleadings were prepared and served. Cardamone testified that he spent 60 to 70 hours on the case, but did not produce any time sheets or work product. There
A suspended attorney is entitled to recover on a quantum meruit basis for services performed prior to suspension (22 NYCRR 806.9 [b]). Generally, an attorney seeking counsel fees must establish the value of his services (see, Marine Midland Bank v Roberts, 102 Misc 2d 903, 905) by showing such factors as the time and skill required, the matter’s complexity, his experience, ability and reputation, the client’s benefit from the services and the fee usually charged by other attorneys for similar services (see, e.g., Matter of Smith, 131 AD2d 913, 914; Matter of Gutchess, 117 AD2d 852, 854, lv denied 68 NY2d 609). Some courts, though, have set counsel fees on an incomplete record based on the courts’ own assessment of the value of the attorney’s services (see, e.g., Jordan v Freeman, 40 AD2d 656, 657). Thus, any fee must reflect the value of the services performed.
In this case, Supreme Court’s determination that Capoccia failed to satisfy his burden was proper. As described by Supreme Court, there is insufficient evidence as to the value of Capoccia’s services. Furthermore, it is difficult to perceive what value plaintiffs received from Capoccia’s work. Although the action was commenced by Capoccia, the file has apparently been lost and, without the records, correspondence, pleadings and other work product in the file, plaintiffs’ new counsel must essentially begin anew. Under such circumstances, we agree that plaintiffs are entitled to have the $5,000 retainer returned to them.
Finally, we reject Capoccia’s argument that the judgment as against the professional corporation is improper because plaintiffs’ notice of motion to set the fee referred only to Capoccia individually and the order is against the "attorney”. It is apparent from the record, especially the hearing testimony, that the participants understood that the compensation due Capoccia individually and his professional corporation, both of which are clearly enumerated on the letter specifying the retainer agreement, was at issue.
Order and judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
Our references to Capoccia are to him individually and his professional corporation.
