Jackson & Nash LLP v. E. Timothy McAuliffe PLLC

• Decision Date: 28 December 2010
• Citation: 915 N.Y.S.2d 40,79 A.D.3d 663
• Parties: JACKSON & NASH LLP, Plaintiff-Appellant, v. E. TIMOTHY McAULIFFE PLLC, et al., Defendants-Respondents. [And a Third-Party Action].
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 40

79 A.D.3d 663

JACKSON & NASH LLP, Plaintiff-Appellant,

v. E. TIMOTHY McAULIFFE PLLC, et al., Defendants-Respondents.[And a Third-Party Action].

Supreme Court, Appellate Division, First Department, New York.

Dec. 28, 2010.

Dunnington, Bartholow & Miller LLP, New York (Carol A. Sigmond of counsel), for appellant.

Lebow & Sokolow, LLP, New York (Mark D. Lebow of counsel), for respondents.

SAXE, J.P., NARDELLI, McGUIRE, FREEDMAN, ABDUS-SALAAM, JJ.

Order, Supreme Court, New York County (Herman Cahn, J.), entered December 15, 2008, which granted the motion of the individual defendant (McAuliffe) for summary judgment dismissing that portion of the complaint that sought an accounting and recovery of commissions he received as co-executor of an estate, and denied plaintiff's cross motion for partial summary judgment on its claims sounding in, inter alia, breach of contract, breach of fiduciary duty and unjust enrichment for damages for alleged unbilled time for the period July 1-August 14, 2003, affirmed, with costs.

A client of McAuliffe died in April 2003 while he was a partner at plaintiff firm. Her will named McAuliffe co-executor, and McAuliffe received preliminary letters testamentaryin May 2003. He continued to carry out his duties as executor after he left the firm on August 14, 2003. In November 2003, he received letters testamentary; in December 2005, the estate was settled by agreement. McAuliffe received an executor's commission ( see SCPA 2307) in December 2005.

[1] The firm partnership agreement provided that "commissions payable to a Partner for acting as an executor ... shall belong to the Firm." However, since the Surrogate's Court Procedure Act provides that compensation for the administration of an estate "shall be payable in such proportions and upon such accounting as shall be fixed by the court settling the account of the person holding successive or different letters ..." (SCPA 2307[5][b] [emphasis added] ), no commission was "payable" until December 2005 ( see Matter of Maurice, 74 A.D.2d 906, 426 N.Y.S.2d 66 [1980], appeal dismissed 50 N.Y.2d 1059, --- N.Y.S.2d ----, --- N.E.2d ---- [1980]; Matter of Boddy, 136 Misc.2d 87, 89, 517 N.Y.S.2d 877 [1987] ), and at that time McAuliffe was no longer a partner of the firm. Had the partnership agreement used another term, such as "earned," there might be an issue of fact precluding summary judgment, but the agreement specifically uses the same word "payable" that the SCPA uses.

[2] Plaintiff submitted no evidence of McAuliffe's work product during the summer of 2003 before he left the firm, and, contrary to its contention, the telephone records it submitted do not conclusively demonstrate that during that time McAuliffe performed billable work and failed to record the billable hours.

All concur except NARDELLI and McGUIRE, JJ. who dissent in part in a memorandum by McGUIRE, J. as follows:

McGUIRE, J. (dissenting in part).

It may well be that under the Surrogate's Court Procedure...