Daniele v. Puntillo

• Decision Date: 31 July 2012
• Citation: 2012 N.Y. Slip Op. 05790,97 A.D.3d 512,949 N.Y.S.2d 365
• Parties: Anthony R. DANIELE, Plaintiff–Respondent, v. Kimi C. PUNTILLO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 512
949 N.Y.S.2d 365
2012 N.Y. Slip Op. 05790

Anthony R. DANIELE, Plaintiff–Respondent,
v.
Kimi C. PUNTILLO, Defendant–Appellant.

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

July 31, 2012.

[949 N.Y.S.2d 366]

Marlo J. Hittman, New York, for appellant.

The Dweck Law Firm LLP, New York (Jack S. Dweck and Corey Stark of counsel), for respondent.

MAZZARELLI, J.P., SAXE, DeGRASSE, RICHTER, ABDUS–SALAAM, JJ.

Judgment, Supreme Court, New York County (George J. Silver, J.), entered November 14, 2011, after a nonjury trial, awarding plaintiff the sum of $104,918.46, plus interest, costs and disbursements, and bringing up for review an order, same court and Justice, entered October 5, 2011, which, found in plaintiff's favor on his causes of action, unanimously affirmed, without costs. Appeal from the order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

In this action, plaintiff attorney seeks fees for services rendered in a matrimonial proceeding. Plaintiff was retained by defendant in March 2004, replacing defendant's prior counsel in her divorce proceeding. It is undisputed that plaintiff and defendant executed a retainer agreement in March 2004. The agreement specified the nature of representation, a $25,000 retainer fee, billing arrangements and payments, and billing rates, among other details. Attached to the retainer agreement was a Statement of Client's Rights and Responsibilities, also executed by both parties in March 2004. Plaintiff contends that on May 14, 2004, he filed a copy of the executed retainer agreement with the court as well as defendant's updated statement of net worth, as mandated by 22 NYCRR 1400.3.

Shortly after executing both documents, defendant paid the $25,000 retainer fee. Plaintiff represented defendant from March 2004 through December 2004, when defendant's divorce proceedings ended in a

[949 N.Y.S.2d 367]

stipulation of settlement. During that time, plaintiff sent defendant detailed billing statements, which were in “block billing” form, meaning that each timekeeper would enter a description of his or her work for a particular day, along with the total amount of time spent on those tasks for that day. Defendant made intermittent payments up until December 2004. When plaintiff commenced this suit, there was an outstanding balance of $104,918.46.

At the close of plaintiff's case, defendant moved for a directed verdict dismissing the complaint on the ground that...