Fields v. Leeponis
| Decision Date | 20 June 1983 |
| Citation | 463 N.Y.S.2d 864,95 A.D.2d 822 |
| Parties | Harold C. FIELDS, et al., Respondents, v. Robert LEEPONIS et al., Defendants; Garcy Corporation et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Stroock & Stroock & Lavan, New York City (Jay P. Mayesh and Thomas Farber, New York City, of counsel), for appellants.
Harold C. Fields, Jamaica, and Milton S. Teicher, New York City, respondents pro se.
Before MOLLEN, P.J., and GULOTTA, O'CONNOR and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover an attorney's fee, defendants Garcy Corporation, Reflector Hardware Corp., and Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert appeal from an order of the Supreme Court, Queens County, dated October 7, 1982, which denied their motion to dismiss the complaint for failure to state a cause of action.
Order affirmed, with costs.
Where, as here, affidavits are submitted on a motion to dismiss pursuant to CPLR 3211 (subd. par. 7) which has not been converted into a summary judgment motion, the question to be determined is whether the plaintiffs actually have a cause of action, and a dismissal will be warranted only in those situations where the affidavits conclusively establish that there is no cause of action (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274-275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970; Brown v. Brown, 87 A.D.2d 680, 449 N.Y.S.2d 63). Viewed in this manner, we regard the instant complaint, as supplemented by the affidavit submitted in opposition to the appellants' motion, as alleging that the plaintiff attorneys were discharged by their clients (defendants Leeponis and Garcy Stud of New York, Inc.), without just cause, prior to the settlement of the underlying lawsuit, and that the lawsuit was settled by the payment of at least $10,000 directly to their former clients in violation of their lien. No special formality is required to effect the discharge of an attorney (see Costello v. Bruskin, 58 A.D.2d 573, 574, 395 N.Y.S.2d 116), and where the services of an attorney are incomplete at the time of his discharge, he is permitted to recover on a quantum meruit basis (seeMarschke v. Cross, 82 A.D.2d 944, 440 N.Y.S.2d 740; Matter of Shaad, 59 A.D.2d 1061, 399 N.Y.S.2d 822).
Moreover, in view of the allegations to the effect that the settlement was effected by direct payment to the former clients, without counsel's consent, as part of a "collusive" maneuver on the part of the defendants to deprive these plaintiffs of their statutory lien, the moving defendants (the Garcy Corporation, Reflector Hardware...
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