Leon v. Martinez

• Decision Date: 24 May 1993
• Citation: 193 A.D.2d 788,598 N.Y.S.2d 274
• Parties: Xavier LEON, et al., Appellants, v. Wilfredo MARTINEZ, Defendant, Pearlman, Apat & Futterman, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 274

598 N.Y.S.2d 274

193 A.D.2d 788

Xavier LEON, et al., Appellants, v. Wilfredo MARTINEZ, Defendant Pearlman, Apat & Futterman, et al., Respondents.

Supreme Court, Appellate Division Second Department.

May 24, 1993.

Razis & Ross, P.C., Island City (George J. Razis, of counsel), for appellants.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and John M. Denby, of counsel), for respondents.

Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated December 12, 1990, as granted the motion of the defendants Pearlman, Apat & Futterman, and Ira A. Futterman to dismiss the complaint insofar as it is asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.

As a result of a job-related accident, the defendant Wilfredo Martinez was rendered a quadriplegic. After the accident, Martinez received care from the plaintiffs Maria Macia, Xavier Leon, and Gina Leon, with whom he resided. According to the plaintiffs, they fed Martinez, clothed him, bathed him, transported him to and from hospitals and doctors, and provided care and attention 24 hours a day. Allegedly upon the recommendation of the plaintiffs, Martinez retained the defendant Ira H. Futterman of the defendant law firm of Pearlman, Apat & Futterman (hereinafter the law firm) to handle his personal injury action. The defendant attorneys had previously prepared legal documents for the plaintiffs, including drafting wills.

On May 12, 1983, Martinez executed a document, drafted by Futterman, that stated "because of [the plaintiffs'] care, services, help, assistance and benefit to [Martinez] from the time of [his] illness to the present date", he gave to each of the plaintiffs a stated percentage "of any recovery [he] may get" from the personal injury action. After the personal injury action was settled, however, Futterman remitted the entire proceeds to Martinez, who refused to pay the plaintiffs a portion of the settlement. The plaintiffs subsequently commenced this action to recover the money allegedly owed them pursuant to the agreement.

Futterman and the law firm moved to dismiss the complaint insofar as it is asserted against them pursuant to CPLR 3211, arguing that they did not represent the plaintiffs and never agreed to disburse the funds to them, or to act as an escrow agent. The court granted the motion, reasoning that "[t]he preparation of an agreement by Martinez' attorneys does not create a liability on their part for his alleged failure to honor it". We reverse.

Where attorneys have notice of an assignment of a portion of their client's claim for personal injuries and pay out money in disregard of the assignment, they may be liable to the assignees (see, Brinkman v. Moskowitz, 38 Misc.2d 950, 238 N.Y.S.2d 876; see, also, Continental Purchasing Co. v. Van Raalte Co., 251 App.Div. 151, 295 N.Y.S. 867; Healy v. Brotman, 96 Misc.2d 386, 392, 409 N.Y.S.2d 72; Matter of Neilson Realty Corp. v. M.V.A.I.C., 47 Misc.2d 260, 264, 262 N.Y.S.2d 652; Aiello v. Levine, 44 Misc.2d 1067, 255 N.Y.S.2d 921; cf. Matter of Kelly, 23 N.Y.2d 368, 382, 296 N.Y.S.2d 937, 244 N.E.2d 456). In the instant case, the plaintiffs have alleged that the defendant attorneys distributed proceeds in disregard of an assignment which Futterman drafted and which was executed in his presence. Indeed, the agreement contains Futterman's signature as the notary. According to the plaintiffs, the assignment was discussed fully among all the parties at the time of its execution. The plaintiffs also alleged that they attempted to speak to Futterman after the underlying negligence action was settled, but Futterman avoided them. Whether or not the plaintiffs ultimately will prevail on this claim, the pleadings in the complaint, as amplified by the affidavits, are certainly sufficient to withstand a motion to dismiss.

LAWRENCE, O'BRIEN and COPERTINO, JJ., concur.

ROSENBLATT, Justice Presiding, dissents and votes to affirm the order insofar as appealed from, with the following memorandum:

In my view, the plaintiff has stated a legal claim against Martinez, but not Futterman.

Futterman is not a party to the May 12, 1983, document, nor does the document recite that Futterman is obligated or expected to make any payment to the plaintiffs. Futterman is identified in the document as its draftsman, who, in preparing the document, is acting on behalf of his client, Martinez, in carrying out the desires and wishes of Martinez. Futterman was not representing the plaintiffs, nor on this record can there be any plausible claim that he was....