Greene v. Greene

• Decision Date: 18 May 1982
• Citation: 56 N.Y.2d 86,451 N.Y.S.2d 46,436 N.E.2d 496
• Parties: , 436 N.E.2d 496 Helen C. GREENE, Respondent, v. Theodore J. GREENE, Individually and as a Partner of the Law Firm of Finley, Kumble, Wagner, Heine and Underberg, et al., Appellants. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

Page 46

451 N.Y.S.2d 46

56 N.Y.2d 86, 436 N.E.2d 496

Helen C. GREENE, Respondent, v. Theodore J. GREENE, Individually and as a Partner of the Law Firm of Finley, Kumble, Wagner, Heine and Underberg, et al., Appellants (And a Third-Party Action.)

Court of Appeals of New York.

May 18, 1982.

Winthrop J. Allegaert, Thomas I. Sheridan, III, and Judith H. Weil, New York City, for Theodore J. Greene, appellant Finley, Kumble, Wagner, Heine, Underberg & Casey, New York City (Alan M. Gelb and Philip S. Kaufman, New York City, of counsel), appellant pro se

Ralph L. Ellis, Jeffrey H. Squire and John G. Nicolich, New York City, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The plaintiff commenced this action against her former attorneys seeking (1) rescission of a trust agreement and (2) an accounting for mismanagement of the fund. On the defendants' motion the trial court dismissed the rescission cause of action but the Appellate Division, 80 A.D.2d 55, 437 N.Y.S.2d 339 reversed. The defendants appeal by leave of the Appellate Division on a certified question concerning the correctness of its order.

Two primary issues are raised on the appeal: (1) whether the plaintiff has stated a cause of action for rescission and (2) whether the cause of action is barred by the Statute of Limitations. The latter issue also presents a question concerning the applicability of the "continuous treatment" doctrine to an attorney who drafts an agreement and then acts as trustee and attorney under the agreement.

In 1964, when she was a college sophomore, plaintiff received treatment for a mental illness at a New York City hospital. She remained a patient at that facility and a related one until 1967. While in those institutions plaintiff was approached by a family lawyer (not associated with the defendants) and at his urging signed a trust agreement, dated February 5, 1965, in which she virtually surrendered to him all management and control over her inheritance for her lifetime.

Upon her release from the hospital in 1967 the plaintiff retained the defendants to have the 1965 trust agreement set aside. The defendants commenced an action on her behalf in the Supreme Court and, in 1969, succeeded in having the 1965 trust agreement rescinded. In that action the court concluded that the attorney who drafted the agreement and later became the trustee, was chargeable with overreaching. The court noted in particular the plaintiff's mental condition at the time the 1965 trust agreement was executed as well as her lack of experience in business and legal matters and ignorance of the content and effect of this agreement.

A few months after that decision the defendants drafted a new trust agreement for the plaintiff. This 1969 agreement designates the plaintiff as a cotrustee of the fund. The other trustee is the defendant Theodore Greene, who is a member of the defendant firm but, incidentally, is not related to the plaintiff. As a trustee under the agreement the defendant Greene is empowered to invest up to $100,000 of plaintiff's funds without her approval; beyond that amount her consent is necessary. He is to receive a fee for his services as trustee, as well as various other payments including 10% of the profits from the sale of trust assets. The agreement also provides that he is authorized to make investments which "are not of the type customarily made by and his liability for his handling of the fund is "limited solely to * * * willful misconduct or gross neglect".

The initial term of the trust agreement was for two years, to be automatically renewed at that point, and at two-year intervals unless the plaintiff gives notice of termination. In 1977 the plaintiff served the notice of termination and commenced this action.

In the first cause of action, seeking rescission of the 1969 trust agreement, the plaintiff claims that the defendants "induced" her to enter the agreement knowing that she was 25 years old, had no business experience or independent advice and relied entirely on the defendants. In the second cause of action, for an accounting, plaintiff claims that the trust assets were mismanaged in various ways, including "self-dealing" by the defendants. It is alleged, for instance, that the defendant firm induced the defendant Greene to invest trust funds in companies which were clients of the defendant firm or in which partners of the law firm had an interest as investors, officers or directors, "without full and adequate disclosure to the plaintiff". ^*

In an examination before trial the plaintiff testified that she did not understand the agreement and was under the impression that it was a normal trust and that the trustee would be required to act in a "conventional" and "prudent" manner. The defendants have thus far evaded demands that they appear for an examination before trial. After obtaining numerous adjournments they made this motion to dismiss the first cause of action on several grounds, including the Statute of Limitations. They also contended that the complaint fails to state a cause of action for rescission because "no facts are pleaded which allege that the creation of the Trust was a product of actionable conduct".

The trial court granted the motion and dismissed the first cause of action on the ground that it was barred by the Statute of Limitations. The court held that the cause of action accrued in 1969 when the trust was created. Applying the six-year Statute of Limitations governing equitable causes of action, the court concluded that the suit commenced in 1977 was untimely.

The Appellate Division reversed and reinstated the first cause of action (80 A.D.2d 55, 437 N.Y.S.2d 339). The court held that the plaintiff's right of action did not accrue until she became aware of the alleged breach of the fiduciary relationship and terminated the trust. The court found (p. 58, 437 N.Y.S.2d 339) that in "many respects the situation parallels that which gave rise to the doctrine of 'continuous treatment' in medical and legal malpractice cases". The court also found (p. 59, 437 N.Y.S.2d 339) that although the plaintiff's "allegations are general * * * they are sufficient to spell out a cause of action".

An attorney is not prohibited from entering into a contract with a client. He must do so, of course, with respect to his retainer for legal services (see, e.g., Whitehead v. Kennedy, 69 N.Y. 462). And, although it is not advisable, an attorney may also contract with a client with respect to matters not involving legal services, or in addition to legal services (Howard v. Murray, 38 N.Y.2d 695, 382 N.Y.S.2d 470, 346 N.E.2d 238, 43 N.Y.2d 417, 401 N.Y.S.2d 781, 372 N.E.2d 568). Thus a contract between an attorney and his client is not voidable at the will of the client.

However, the relationship between an attorney and his client is a fiduciary one and the attorney cannot take advantage of his superior knowledge and position. The basic rule, as stated in an early case (Whitehead v. Kennedy, supra, p. 466), is that "an attorney who seeks to avail himself of a contract made with his client, is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconception on the part of the client, and that a reasonable use was made by the attorney of the confidence reposed in him". Under this rule it is not necessary for the client to show that the agreement was obtained by fraud or undue influence on the part of the attorney (Matter of Howell, 215 N.Y. 466, 109 N.E. 572) although, of course, that would make the agreement unenforceable if it were proven. Even in the absence of such misconduct the agreement may be invalid if it appears that the attorney "got the better of the bargain", unless he can show that the client was fully aware of the consequences and that there was no exploitation of the client's confidence in the attorney (Howard v. Murray, 38 N.Y.2d 695, 699, 382 N.Y.S.2d 470, 346 N.E.2d 238, 43 N.Y.2d 417, 401 N.Y.S.2d 781, 372 N.E.2d 568, supra).

In the case now before us the plaintiff alleges, in her complaint and motion papers, that the defendants took unfair advantage of the attorney-client relationship by purporting to create a trust for her, which in fact granted them powers greater than they would be entitled to have as fiduciaries and relieved them of normal fiduciary liability. She has stated under oath that she did not understand the terms or the effect of the agreement. If proven these allegations should be sufficient to entitle the plaintiff to rescission of the agreement unless the defendants can convincingly show that she was fully and fairly informed of the consequences of the agreement and the special advantages it gave to them. In short, although the complaint alone may be insufficient, on the record as a whole, it appears the plaintiff has a cause of action for rescission (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274-275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

The Appellate Division also correctly held that the cause of action is not barred by the Statute of Limitations. Initially we note that all parties agree that the six-year Statute of Limitations applies to this action for rescission (CPLR 213, subd. 1; Van Dussen-Storto Motor Inn v. Rochester Tel. Corp., 63 A.D.2d 244, 407 N.Y.S.2d 287). The only dispute concerns the point at which the cause of action accrued.

The defendants contend that the statute began to run when they allegedly "induced" the plaintiff to enter the trust agreement. They urge that in this case there is no basis for departing from the general rule that a cause of action accrues when the act...