In an action to recover unpaid legal fees, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated September 23, 2004, as granted those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought recovery on a contingency fee agreement, the second caiise of action, and the third cause of action.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In 1979 the couple moved to a house in Smithtown, New York, owned by Anthony, and in 1981 Anthony granted the defendant a one-half interest in the house. According to the defendant, she and Anthony were married under the common law of Pennsylvania in 1983 and were married in á civil ceremony in New York in early 1990. The couple continued to live together until 1993, when the defendant decided to end the marriage due to Anthony’s alleged adultery and cruel and inhuman treatment. According to the defendant, Anthony spent anywhere from two to five days a week with her at the house in Smithtown, and on the other nights he stayed in Manhattan for business.
Initially, the defendant and the plaintiff signed an hourly fee agreement. But, after discussing the case, the plaintiff concluded that, based on the short duration and alienated nature of the marriage and the dearth of marital property, the defendant was only entitled to nominal maintenance and was not entitled to equitable distribution. The plaintiff decided that he would interpose claims alleging an oral partnership and constructive trust alongside the claims for divorce, maintenance, and equitable distribution, and the parties signed a contingency fee agreement whereby the plaintiff would recover one third of all sums recovered on the partnership and constructive trust claims. Several months later, the parties executed a new hourly fee agreement that increased the plaintiffs hourly rate. According to the plaintiff, at some point during the course of the litigation he and the defendant agreed that he would accept $300,000 in full satisfaction of his fees if the matter settled for less than $1.8 million.
Also during the course of the litigation the Supreme Court, Kings County (Heitler, J.), granted the defendant’s motion for pendente lite support and ordered Anthony to pay the defendant $2,000 per month. Thereafter, before trial, the defendant and Anthony entered into a stipulation of settlement whereby
At a hearing on the same day, the parties stipulated to the settlement, and Anthony delivered to the plaintiff the sum of $970,000 and a deed transferring his interest in the house to the defendant. The Supreme Court granted the defendant’s uncontested motion for leave to amend her complaint to include a claim of constructive abandonment, and on August 31, 1998, the court entered a judgment of divorce based on its finding that Anthony had constructively abandoned the defendant starting in August of 1994 and that the parties had identified and disposed of their separate and marital property pursuant to the terms of the settlement.
The plaintiff delivered the $970,000 settlement proceeds to the defendant, and the defendant thereafter remitted the sum of $200,000 to the plaintiff. The plaintiff reminded the defendant that he was entitled to an additional $100,000, but the defendant refused to pay it, and the present suit ensued.
The first question presented on this appeal is whether an attorney may, in the context of a suit which includes both matrimonial and nonmatrimonial causes of action, enter into a contingency fee agreement whereby he becomes entitled to a percentage of so much of the proceeds of the litigation as are derived from the nonmatrimonial causes of action. The issue appears to be one of first impression.
While an attorney may charge a contingency fee to prosecute nonmatrimonial claims generally (see 7 NY Jur 2d, Attorneys at Law § 209), “[a] lawyer shall not enter into an arrangement for, charge or collect . . . [a]ny fee in a domestic relations matter . . . the payment or amount of which is contingent upon the securing of a divorce or in any way determined by reference to the amount of maintenance, support, equitable distribution, or property settlement” (Code of Professional Responsibility DR 2-106 [c] [2] [i] [22 NYCRR 1200.11 (c) (2) (i)]; see 22 NYCRR 1400.1, 1400.2; Xiao Yang Chen v Fischer,
The plaintiff argues that, because “res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action” (Boronow v Boronow,
We are also aware of rulings from other states holding that such fees do not violate the public policy against contingency fees in domestic relations matters because they are not contingent upon the securing of “alimony or support or property settlement in lieu thereof’ (Salter v St. Jean, 170 So 2d 94, 95 [Fla 1964]; see Burns v Stewart, 290 Minn 289,
The first reason is that New York’s prohibition on contingency fees in domestic relations matters is very broad, and does not distinguish between property settlements made in lieu of maintenance, support, or equitable distribution and property settlements based on nonmatrimonial property claims (see Code of Professional Responsibility DR 2-106 [c] [2] [i] [22 NYCRR 1200.11 (c) (2) (i)]; see also 22 NYCRR 1400.1, 1400.2).
Second, allowing contingency fees for nonmatrimonial claims interposed with matrimonial claims would contravene the important policy concerns that inform the general prohibition.
In fact, the case at bar exemplifies this problem. Despite the fact that the defendant and her husband lived together for nearly 20 years, bore a child together, and were married for at least 3—and perhaps as many as 10—years, and despite the plaintiff’s expert’s testimony that the defendant would be entitled to some award of maintenance and the defendant’s successful pendente lite motion for maintenance, the plaintiff claims that the entire value of the settlement derived from the nonmatrimonial causes of action.
Therefore, as the Supreme Court correctly held, the defendant made a prima facie showing that she was entitled to summary judgment on so much of the plaintiffs first cause of action as sought recovery under the contingency fee agreement, and the plaintiff failed to raise any triable issues of fact with regard to that claim.
However, the defendant failed to make a prima facie showing that she was entitled to summary judgment on the plaintiffs claims that she breached the hourly retainer agreement. It was uncontested that both parties duly entered into the October 24, 1995 hourly retainer agreement and the parties’ conflicting estimates regarding the extent of services rendered and the value of those services raises triable issues of fact. The defendant presented evidence that she was entitled to a refund of fees paid to the plaintiff, and in response, the plaintiff presented evidence that the defendant owed her anywhere from $173,800 to $300,000. Therefore, the trial court properly denied that branch of the defendant’s motion which was for summary judgment on that claim (see e.g. Epstein v Turecamo,
The defendant made a prima facie showing that she was entitled to summary judgment regarding the plaintiffs second cause of action for quantum meruit, and in response, the plaintiff failed to raise any triable issues of fact. “In order to make out a claim in quantum meruit, a claimant must establish (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” (Matter of Alu,
Finally, the defendant made a prima facie showing that she was entitled to summary judgment regarding the plaintiff’s third cause of action alleging fraud, and in response, the plaintiff failed to raise any triable issue of fact. “The essential elements of a cause of action for fraud are ‘representation of a material existing fact, falsity, scienter, deception and injury’ ” (New York Univ. v Continental Ins. Co.,
Here, the plaintiff’s fraud claim merely alleged that he entered into a retainer agreement with the defendant based on her promise to pay and that she ultimately repudiated that promise. The plaintiff does not allege that he was induced to enter the agreement by a misrepresentation of any material fact collateral to the contract. Therefore, “the fraud claim arises out of the identical facts and circumstances ... as the cause of action alleging breach of contract” (34-35th Corp. v 1-10 Indus. Assoc.,