596 N.Y.S.2d 575 | N.Y. App. Div. | 1993
Appeal from an order of the Supreme Court (Smyk, J.), entered April 6, 1992 in Broome County, which, inter alia, determined the amount of counsel fees owed by plaintiff to defendant.
Plaintiff sustained injuries when she slipped and fell at defendant’s department store in Broome County. On November 14, 1990, plaintiff retained attorney Scott Gottlieb to represent her in connection with this case. At the time plaintiff contacted Gottlieb, she had already received an offer to settle from defendant’s insurance carrier for approximately $29,000. Plaintiff entered into a retainer agreement with Gottlieb that provided, inter alia, that if the ultimate net recovery of the claim exceeded $31,644.09, then Gottlieb would be entitled to one third of the net recovery. Thereafter, Gottlieb began negotiations with defendant’s insurance carrier that resulted in an offer of $45,000 to settle the claim. Gottlieb informed claimant of the offer but she apparently never got back to him about it. Instead, she discharged Gottlieb and retained the services of attorney William Palella.
Gottlieb ultimately forwarded plaintiff’s file to Palella but
Plaintiff principally argues that Supreme Court erred in summarily fixing Gottlieb’s fee without a hearing as to the reasonable value of the services he performed for her. We must agree with this contention. In New York, "[w]hen a client discharges an attorney without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement” (Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458; see, Matter of Montgomery, 272 NY 323, 326-327). Recovery on a quantum meruit basis is called for even where the attorney discharged without fault was employed under a contingent fee contract (see, 7 NY Jur 2d, Attorneys at Law, § 150, at 52).
In the case at bar, there was no evidence presented pertaining to any of the various factors generally considered when determining a quantum meruit recovery. This was not a situation involving a dispute between the incoming and outgoing attorneys and a contingent fee could legitimately be elected (see, Lai Ling Cheng v Modansky Leasing Co., supra). In addition, no written decision from Supreme Court appears on the record giving an explanation as to why the court simply awarded Gottlieb the amount he requested. Given the sparsity of information in the record concerning Gottlieb’s prosecution of plaintiffs lawsuit, we take no position at this time as to what appropriate compensation should be.
Mikoll, J. P., Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.
We must note that, on the subject of discharge for cause, plaintiff made a half-hearted attempt in her reply affidavit to allege that Gottlieb was discharged for cause. She makes the same claim almost as an afterthought in her final sentence of her brief on appeal. We cannot recognize that a legitimate issue on this point was raised, however, because the subject is never raised in her main affidavit supporting her motion for a determination of Gottlieb’s fee. In fact, the issue of discharge for cause was never mentioned in any of the correspondence between Gottlieb and Palella discussing the fee in the record. Instead, the thrust of her motion papers and brief before this Court is a recognition that Gottlieb is owed something, even though the actual amount is disputed. In any event, the basis for plaintiff’s claim that she fired Gottlieb for cause is unrelated to his prosecution of this lawsuit and, at best, appears to solely involve a misunderstanding in communication.