Pudalov v. Brogan
| Decision Date | 10 March 1980 |
| Citation | 103 Misc.2d 887,427 N.Y.S.2d 345 |
| Parties | Murray PUDALOV, Plaintiff, v. Santina BROGAN, Defendant. |
| Court | New York Supreme Court |
Leland Stuart Beck, Mineola, for plaintiff.
Mulholland, Minion, Roe & Clifford, Garden City, for plaintiff on counterclaim.
Bruce G. Clark, New York City, for defendant.
This motion by plaintiff for an order dismissing the affirmative defenses and counterclaim pursuant to CPLR 3212 (motion dated 1/31/80); by Mulholland, Minion, Roe & Clifford, Esqs., the attorneys for plaintiff on the counterclaim, for an order pursuant to CPLR 3211 subdivisions 6 and 7 dismissing the counterclaim (motion dated 2/6/80); by defendant for an order voiding plaintiff's preference and directing that this action follow the trial of the case entitled Brogan v. Zummo et al. (motion dated 1/31/80); and by plaintiff for an order of preclusion pursuant to CPLR 3042(d) (motion dated 2/11/80), are determined as set forth below.
On January 20, 1976, the defendant Santina Brogan, a pedestrian, was injured in a three car auto accident. She retained the plaintiff in this action as her attorney in April, 1976. Plaintiff apparently retained Leland Stuart Beck, Esq., as his counsel, and both attorneys completed the preliminary proceedings and placed the case on the trial calendar. At a pre-trial conference, plaintiff received an offer of $25,000 which plaintiff states "was the extent of the total insurance coverage applicable to this accident and her injuries".
After communicating this offer to defendant, she discharged plaintiff and retained new counsel, who now represents her in the underlying personal injury action as well as in this case.
Plaintiff presented a bill for legal services rendered to the defendant in the sum of $17,500 plus disbursements, which is unpaid, and which is the subject of this lawsuit for legal services rendered in the underlying personal injury case.
Said underlying personal injury case is on the calendar of this Court bearing calendar number 79H0728; and, according to the Calendar Clerk, will be reached for trial in January, 1981.
In this present case, after service of the summons and complaint, defendant moved to dismiss, to direct plaintiff to turn over his file and to fix an attorney's lien. By order dated August 6, 1979 (Spatt, J.), this Court directed the turnover of the file and fixed a temporary lien in favor of the plaintiff of 50% of the net attorney's fees, subject to the determination of plaintiff's fee in this plenary action.
Thereafter, defendant moved for a protective order as to certain items in the plaintiff's demand for a bill of particulars with regard to the affirmative defenses, which motion was denied by order of this Court dated December 4, 1979 (Lockman, J.).
Plaintiff has placed this case on the calendar with an application for a preference pursuant to Section 785.4 of the Nassau Supreme Court Rules. The Court is advised that this case will appear on the calendar for trial on March 10, 1980.
Defenses and the Counterclaim
AS TO THE FIRST AFFIRMATIVE DEFENSE
The defendant's first affirmative defense states:
"Plaintiff has been compensated in an amount commensurate with his services."
In paragraph "1" of defendant's bill of particulars, defendant concedes that, "Plaintiff has received no compensation." Defendant apparently contends that "no compensation" or "nothing" was commensurate with the value of plaintiff's services. If that is so, plaintiff's cause of action will fail. However, since defendant concedes that plaintiff has been paid nothing, this defense has no merit as a matter of law, and is dismissed.
AS TO THE SECOND AFFIRMATIVE DEFENSE
The defendant's second affirmative defense states:
"Plaintiff has received or is entitled to receive full compensation for the services performed by him through the no fault insurance carrier insuring the vehicles."
In response to plaintiff's demand for a bill of particulars as to this defense, plaintiff answered, "N.A.", apparently meaning "not applicable".
The plaintiff could not receive full, or even part, compensation by a no fault carrier for his fee for services rendered in a negligence case for personal injuries, pain and suffering and permanency. The attorney's fees payable from no fault carriers are fixed after arbitration hearings with regard to disputed medical expenses or loss of earnings. (See Insurance Law Section 675) There has been no proof offered by defendant of any such arbitration hearings; and even if there were payment of such no fault attorney's fees, the legal services sued for herein are separate and apart from such no fault fees.
The second affirmative defense has no merit as a matter of law, and is dismissed.
The defendant's third affirmative defense states:
"Plaintiff and defendant entered into a written agreement which sets forth the full and exclusive terms of plaintiff's compensation."
There is a written retainer agreement dated April 22, 1976, annexed to plaintiff's motion papers, which provides for a "sliding scale" retainer to plaintiff. This agreement purports to set forth the terms of plaintiff's compensation for services rendered in the underlying case.
What is the effect of the retainer agreement after an attorney has been discharged? The leading case in this regard is Matter of Tillman v. Komar, 259 N.Y. 133, 181 N.E. 75 (1932) in which the applicable rule of law was stated as follows:
This rule was recently reiterated by the Appellate Division of this Department in Brill v. Chien Yuan Kao, 61 A.D.2d 1000, 402 N.Y.S.2d 642 (2d Dept. 1978), as follows:
Since the contract of retainer, while not the sole standard of compensation, may be taken into consideration in ascertaining the quantum meruit recovery of plaintiff; and since this defense asserts a breach of this contract; and since factual allegations of such breach of contract are set forth in defendant's bill of particulars (see paragraph "6"), this defense raises triable issues of fact which must await trial. The motion to dismiss the third affirmative defense is denied.
AS TO THE FOURTH AFFIRMATIVE DEFENSE
This defense reads as follows:
"Plaintiff has breached his agreement with defendant."
Plaintiff contends that defendant's substantiation of this defense in her bill of particulars consists of "vague generalities" and defendant "can only state that he failed to provide proper and skillful representation". The Court disagrees. Paragraph "6" of the defendant's bill of particulars states as follows:
The facts alleged in paragraph "6" may substantiate the defense of breach of the retainer agreement, and may constitute a "failure of the performance" by plaintiff on his part. (See complaint paragraph SEVENTH). Triable issues of fact permeate this defense requiring a trial and denial of the motion to dismiss this defense.
This is a cause of action sounding in legal malpractice. Defendant alleges that plaintiff improperly retained trial counsel without the consent of defendant, "departed from the accepted standards of legal practice", negligently prepared papers and conducted pretrial discovery, and advised defendant to settle for an amount less than the potential of the lawsuit. There are some specific factual allegations set forth in paragraph "6" of defendant's bill of particulars. Defendant demands damages in the sum of One Million Dollars.
The problem here is that the counterclaim is premature. Since the underlying personal injury action has not yet been reached for trial, nor has it been settled or otherwise terminated, the defendant has incurred no demonstrable damages as yet. This is conceded by defendant's counsel in his undated affirmation in support of defendant's motion to void plaintiff's preference, as follows:
"Mr. Pudalov's attorneys do argue correctly that concrete damages cannot be proved until Ms. Brogan's prior action, BROGAN v. ZUMMO, et al (Calendar # 79H0728) has been resolved by this Court."
A necessary element in a cause of action for legal malpractice is damages. Here there can be no legal damages until the underlying case is resolved. Accordingly, the motions to dismiss by plaintiff by his attorney Leland Stuart Beck and his attorneys Mulholland, Minion, Roe & Clifford, Esqs., (on the counterclaim) are granted....
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...because it involved a contingent-fee claim rather than an hourly-fee claim by the attorney. See Pudalov v. Brogan, 103 Misc.2d 887, 427 N.Y.S.2d 345, 349 (N.Y.Sup.Ct.1980). As an aged trial court case from another jurisdiction that was not reviewed by an appellate court, the case also has l......
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...distinguishable because it involved a contingent-fee claim rather than an hourly-fee claim by the attorney. See Pudalov v. Brogan, 427 N.Y.S.2d 345, 349 (N.Y. Sup. Ct. 1980). As an aged trial court case from another jurisdiction that was not reviewed by an appellate court, the case also has......
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