In re EState of Garrasi
| Decision Date | 08 September 2010 |
| Citation | 29 Misc.3d 822,907 N.Y.S.2d 821 |
| Parties | In the Matter of the ESTATE OF Samuel A. GARRASI, Deceased, and The Samuel A. Garrasi and Mary H. Garrasi Family Trust U/D/T Dated September 7, 1991. |
| Court | New York Surrogate Court |
Robert Garrasi, Glenville, Self Represented Petitioner.
Englert, Coffey, McHugh & Fantauzzi, LLP, Peter V. Coffey, Esq., of counsel Schenectady, for Respondent and Cross-Petitioner Barris, Sott, Denn & Driker, PLLC.
McNamee, Lochner, Titus & Williams, P.C., Richard Cirincione, Esq., of counsel, Albany, for Sallie Hume Garrasi, William Hume and Lori Hume.
Martin Finn, Esq., Lavelle & Finn, Latham, Guardian ad Litem for Kevin Aggen.
The Court has pending before it several motions that have been filed with respect to the proceeding to determine the validity of a claim for legal services pursuant to SCPA § 1809 and to recover legal fees pursuant to SCPA § 2103 commenced by the Executor and Trustee Robert Garrasi (hereinafter "Petitioner"). After issue was joined and following some earlier motion practice, Petitioner filed a Notice of Motion to Strike the Amended Answer of the Respondent Barris, Sott, Denn & Driker, PLLC, and to Dismiss the Cross-Petition. Respondent filed a Notice of Cross-Motion for Summary Judgment to dismiss the Petition and grant the Second Cross-Petition seeking payment of the outstanding balance of their legal fees. In addition, Petitioner filed two other motions relating to this proceeding: one for a protective order prohibiting Respondent from taking his deposition; and one ex parte motion for the posting of a bond as security for costs. These two motions are also still pending before this Court.
Petitioner bases his claim for disallowance of legal fees primarily on the alleged violation of Judiciary Law § 470 by the Respondent, specifically Attorney Douglas W. Stein.1 Petitioner claims that AttorneyStein engaged in the unauthorized practice of law in New York State after he relocated to Michigan in 2003 and failed to maintain a law office in New York while continuing to represent the Petitioner in this matter. Petitioner claims that this alleged violation of Judiciary Law § 470 renders his retainer agreement with Attorney Stein illegal and void ab initio as against public policy, resulting in a forfeiture of all legal feesbilled to the Petitioner for services performed after his relocation to Michigan.
Although Respondent admits that Attorney Stein did not maintain an office for the practice of law in New York after he moved to Michigan in 2003, Respondent denies that Judiciary Law § 470 was violated or that it even applies given the facts and circumstances of this case. Further, Respondent questions the constitutionality of Judiciary Law § 470, and argues that a strict interpretation and application of the statute to this type of case is unprecedented. In addition, Respondent believes that the Petitioner's demand that the Respondent be ordered to forfeit all of its legal fees is unwarranted and this result, Respondent argues, would only serve to unjustly enrich the Petitioner.
Respondent also claims that the Petitioner is equitably estopped from seeking a refund of the legal fees that he voluntarily paid to the Respondent more than three (3) years ago for legal services actually performed to the Petitioner's satisfaction. Finally, Respondent claims that it is entitled to the outstanding balance of legal fees due and owing based on an Account Stated in the amount of $6,896.30.
Since the material facts relevant to a proper adjudication of the pending motions are not in dispute, the Court can dispense with the need for a hearing and will proceed to determine the remaining questions of law, beginning with the applicability of Judiciary Law § 470 to this case.2 Judiciary Law § 470 reads as follows:
In support of its argument that this section of the Judiciary Law does not apply here, Respondent points to the fact that at the time that Attorney Stein began representing the Petitioner and entered into a retainer agreement with him, Attorney Stein was employed by Pierro & Associates, LLC a/k/a Pierro Law Group and maintained his law office at the firm's offices located in Albany, New York. He continued to practice law from that locationuntil 2003 when he relocated his residence to Michigan and began working for the Respondent. At that time, despite his knowledge that Attorney Stein had separated from the Pierro Law Group, had relocated to Michigan and was working for a different law firm located in Michigan, Petitioner requested that Attorney Stein continue to represent him in this matter. Attorney Stein agreed, and continued to represent the Petitioner over the next four (4) years, or up until 2007.
Respondent argues that these facts distinguish this case from the reported cases that have applied Judiciary Law § 470. See, e.g., Tatko v. McCarthy, et al., 267 A.D.2d 583, 699 N.Y.S.2d 509; Elm Management Corp. v. Sprung, et al., 33 A.D.3d 753, 823 N.Y.S.2d 187; Lichtenstein v. Emerson, 251 A.D.2d 64, 674 N.Y.S.2d 298; Keenan v. Mitsubishi Estate, et al., 228 A.D.2d 330, 644 N.Y.S.2d 241. These cases involve situations where the out-of-state attorney did not have a New York presence at the time the lawsuit was commenced, nor ever had a New York presence. Respondent contends that Judiciary Law § 470 should not be extended to cases where, like the one presented here, a New York attorney commences an action, then moves out of state during the pendency of the action but continues to appear in the New York action at the request of the client and without opposition from any interested party. The Respondent states that allowing the attorney to appear in the New York litigation even after his relocation would ensure continuity of representation and permit the client to have the counsel of his choosing. Respondent further argues that the client, like the Petitioner in this case, who has demanded that the attorney continue to represent him despite having moved out of state, has essentially waived or opted out of the requirements of Judiciary Law § 470.
Respondent's attempt to distinguish this case from those cited above is flawed. Nowhere in those cases do the courts, in applying Judiciary Law § 470, draw a distinction between an attorney's lack of presence in New York at the commencement ofa lawsuit, and a lack of presence in New York occurring at some point after the commencement but before resolution of the lawsuit. Nor does the plain wording of Judiciary Law § 470 make such a distinction or carve out an exception to its application in cases where the lack of presence in New York comes about during the pendency of the lawsuit. Although there is no authority on point, the Court finds that Respondent's distinction is, in essence, a distinction without a difference, and should not matter in applying the unambiguous language of Judiciary Law § 470. Clearly, the statute applies regardless of what stage or when the offending attorney's presence evaporates from the jurisdiction. This Court is also unpersuaded by Respondent's argument that the Petitioner opted out of the requirements of Judiciary Law § 470. While this is a novel argument and one certainly worthy of consideration, there is no caveat written into the statute allowing for such a waiver. Accordingly, the Court finds that the requirements of Judiciary Law § 470 do apply in this case.
To briefly address the Respondent's constitutional challenge to the restrictions imposed by Judiciary Law § 470, this Court is constrained to follow the First Department's decision in Lichtenstein v. Emerson,supra, finding that "the New York office requirement of Judiciary Law § 470 does not violate the Privileges and Immunities Clause of the United States Constitution ... and is, accordingly, constitutional." The First Department cited the State's legitimate interest "in ensuring that a lawyer practicing within itsboundaries is amenable to legal service and to contact by his or her client, ... and a State may, therefore, reasonably require an attorney, as a condition of practicing within its jurisdiction, to maintain some genuine physical presence therein" (internal citation omitted). Id.3 While the Respondents cite to U.S. District Court Judge Kahn's decision in Schoenefeld v. State of New York, 09-CV-504, 2009 WL 2250154 (N.D.N.Y.) in support of its challenge, this decision merely found that the "plaintiff's privileges and immunities claims can go forward", thus presenting no binding authority on this Court to endorse Respondent's challenge. Accordingly, Respondent's constitutional challenge to Judiciary Law § 470 is hereby rejected by this Court.
Having found that the restrictions imposed by Judiciary Law § 470 are constitutional and do apply in this case, the Court must next decide whether these restrictions were violated by the Respondent, and more specifically Attorney Stein. Despite its admission that Attorney Stein did not maintain a law office in New York after he moved to Michigan in 2003, Respondent contends that during the years that Attorney Stein represented the Petitioner after his move to Michigan, he continued to maintain a connection with his former New York law firm, Pierro & Associates, LLC. This firm is where Attorney Stein was employed when he first began representing the Petitioner. In fact, Pierro & Associates, LLC a/k/a Pierro Law Group also continued to perform legal services for the Petitioner after Attorney Stein left the firm, and billed the Respondent for these services ( see Exhibits "A"-"C" annexed to the Affidavit of Yuh Suhn Kim,...
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