Wehrum v. Illmensee

• Decision Date: 01 June 2010
• Citation: 902 N.Y.S.2d 607,74 A.D.3d 796
• Parties: John E. WEHRUM, respondent, v. Thomas A. ILLMENSEE, appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 607

74 A.D.3d 796

John E. WEHRUM, respondent,

v.Thomas A. ILLMENSEE, appellant.

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

June 1, 2010.

Ryan, Brennan & Donnelly, LLP, Floral Park, N.Y. (John E. Ryan of counsel), for appellant.

Sullivan & Sullivan LLP, Garden City, N.Y. (Robert G. Sullivan of counsel), for respondent.

STEVEN W. FISHER, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages in quantum meruit, the defendant appeals from a judgment of the Supreme Court, Nassau County (Diamond, J.) dated February 2, 2009, which, upon a decision of the same court dated January 9, 2009, made after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $182,500.

ORDERED that the judgment is modified, on the law and on the facts, by reducing the principal sum awarded to the plaintiff from the principal sum of $182,500 to the principal sum of $17,500; as so modified,the judgment is affirmed, without costs or disbursements.

In this action, the plaintiff seeks to recover a portion of a legal fee awarded to the defendant, who served as attorney for the plaintiff's brother, James Wehrum (hereinafter James), in an action to recover damages for personal injuries (hereinafter the underlying action). On November 1, 1996, James was riding his bicycle to work when Scott Lyle, the driver of an automobile, struck his bicycle in the rear, causing him to sustain serious personal injuries.

The defendant was James's attorney of record in the underlyingaction against Lyle. After a jury verdict was returned awarding James damages in the sum of $1,400,000, James was awarded the sum of $2,500,000 pursuant to a high-low agreement, and the defendant, as attorney of record, was awarded his contingency fee from that sum. In this action, the plaintiff claimed he is entitled to $275,000 of the defendant's fee, based upon a contract between the plaintiff and the defendant, or in the alternative, in quantum meruit.

After a nonjury trial, the Supreme Court, in its decision, noted that the plaintiff kept no time records, and that although the plaintiff attended many court appearances, he never did so as counsel, but only to provide support for his brother. The Supreme Court noted that "[t]he line between plaintiff acting as brother or counselor becomes extremely blurred at times." The Supreme Court found that the cause of action sounding in breach of contract was subject to dismissal on the ground that there was no enforceable contract. On the theory of quantum meruit, the Supreme Court awarded the plaintiff the principal sum of $165,000 for renegotiating a high-low agreement at the trial, whereby it was agreed that the low figure would be raised from $2,000,000 to $2,500,000, and the sum of $17,500 for reviewing documents, attending conferences, and "assisting with the Lyle plea in criminal court," whereby Lyle pleaded guilty to a nonintentional offense which would allow James to recover from Lyle's insurance carrier.

The authority of this Court to review findings of fact after a nonjury trial is as broad as that of the trial court and includes the power to render the...