Zimmerman v. Kallimopoulou

• Decision Date: 22 December 1967
• Citation: Zimmerman v. Kallimopoulou, 56 Misc.2d 828, 290 N.Y.S.2d 270 (N.Y. City Ct. 1967)
• Court: New York City Court
• Parties: Gordon ZIMMERMAN, Plaintiff, v. Gisele KALLIMOPOULOU, Defendant.

Page 270

290 N.Y.S.2d 270

56 Misc.2d 828

Gordon ZIMMERMAN, Plaintiff, v. Gisele KALLIMOPOULOU, Defendant.

Civil Court of the City of New York, New York County.

Dec. 22, 1967.

Gordon Zimmerman, New York City, pro se.

Stone & Diller, New York City, Joseph I. Stone, New York City, of counsel, for defendant.

ARNOLD L. FEIN, Judge.

Plaintiff's motion for summary judgment or for alternative relief is granted to the extent of (1) directing an assessment; (2) dismissing defendant's counterclaims (described as a first and second cause of action); and (3) striking defendant's affirmative defense.

Plaintiff, a lawyer, sues his former client to recover the sum of $1365.24, the alleged agreed price and reasonable value of legal services plus disbursements advanced with respect to an action for personal injuries pending in this court. Defendant's present attorneys were substituted for plaintiff on defendant's motion, by an order of this court (Klotz, J.), which provided that the substitution was 'without prejudice to the charging or statutory lien of the former attorney * * * upon the cause of action and the proceeds of any recovery by suit, settlement or otherwise * * *. The reasonable value of the services rendered by former counsel may be determined by means of a plenary suit or possibly an agreement may be reached regarding the matter.'

Plaintiff brings this suit in reliance on that order. The retainer agreement between plaintiff and defendant in the personal injury action provided for a contingent fee. It is undisputed that plaintiff obtained an offer of settlement on behalf of defendant, in the personal injury action, in the sum of $3,000, and that his contingent fee was based on the sliding scale in schedule A, pt. 4, Rule IV(5)(b), Appellate Division, First Dept. His present claim is based upon applying the sliding scale fee to the $3,000 offer and adding disbursements of $108.74.

A client is entitled to cancel his attorney's retainer agreement at any time with or without cause, but this does not deprive the attorney from recovering the reasonable value of his services rendered to the date of termination. The client having canceled the contract, its terms no longer establish the standard for the attorney's compensation. The attorney is no longer limited by the contingent aspect of the fee arrangement. The Attorney's right to compensation cannot be made to depend upon the success or failure of another member of the bar. He is entitled to have the dollar value of his services fixed and made a lien against the client's recovery by way of suit, settlement or otherwise. On termination of a contract of retainer a cause of action for the reasonable value of his services immediately accrues to the attorney. (Adams v. Fort Plain Bank, 36 N.Y. 255; Matter of Tillman, 259 N.Y. 133, 181 N.E. 75; Matter of Krooks, 257 N.Y. 329, 178 N.E. 548.) In most cases the fee is fixed, either in connection with the order granting substitution, if necessary by a reference, or by an application pursuant to Judiciary Law section 475. This does not mean that a plenary action is unauthorized or that it is premature because it is brought before disposition of the tort action. Here a plenary action was authorized by the prior order.

Accordingly, defendant's affirmative defense, pleading the prior order as res judicata, is without merit.

The affirmative defense is stricken.

Defendant's counterclaim (first cause of action) founded upon plaintiff's alleged 'libelous statements' in his affidavit on the motion for substitution is insufficient in law.

The statement was:

'She receives at least $15,000 per annum in gifts from friends (especially men) and relatives, most or all of which she spends on luxuries, such as her expensive apartment, clothes, travel, hotels, restaurants and other tokens of affection.'

The statement was privileged because, even if defamatory, it was made by an attorney in the course of judicial proceedings in which it was material and pertinent to the issues. The issue on the motion for substitution was the value of plaintiff's services as an attorney and the basis or means of payment. The client's ability to pay was a relevant factor. (Martin Foundation v. Phillips-Jones Corp., 204 Misc. 120, 123 N.Y.S.2d 222, mod. on other grds., 283 A.D. 729, 127 N.Y.S.2d 649, aff'd 306 N.Y. 972, 120 N.E.2d 230; Easton v. Simpson, 182 Misc. 405, 46 N.Y.S.2d 395, aff'd 267 A.D. 1047, 49 N.Y.S.2d 431, app. dism. 293 N.Y. 855, 59 N.E.2d 443; see Singer v. Four Corner Service Station, Sup., 105 N.Y.S.2d 77; Harris v. Karavas, Sup., 86 N.Y.S.2d 9; Warneck v. Kielly, Sup., 68 N.Y.S.2d 157; Kodenski v. Baruch Oil Corp., 5 Misc.2d 809, 811, 161 N.Y.S.2d 301, 303.) Anything that may possibly be pertinent is privileged. (Feldman v. Bernham, 6 A.D.2d 498, 179 N.Y.S.2d 881, aff'd 7 N.Y.2d 772, 194 N.Y.S.2d 41, 163 N.E.2d 145; Andrews v. Gardiner, 224 N.Y. 440, 121 N.E. 341, 2 A.L.R. 1371; People ex rel. Bensky v. Warden, 258 N.Y. 55, 179 N.E. 257.)

Moreover, the counterclaim does not indicate in what respect the quoted statement is defamatory. In a defamation action founded upon language imputing unchastity to a woman it is not necessary to allege or prove special damages. (Civil Rights Law Sec. 77.) However, the quoted words do not impute unchastity to defendant. It has been held that language bearing much stronger implications of unchastity was not libelous or slanderous per se; for example, 'She came down here and coaxed my bartender to stay with her all night' (Taylor v. Wallace, 31 Misc. 393, 64 N.Y.S. 271): 'You'd do anything for five dollars, so I am told in the village' (Bolton v. Strawbridge, Sup., 156 N.Y.S.2d 722); 'I could tell you a few things that went on in that apartment, with her and her boy friends. * * * That isn't even your own apartment. * * * You had men or a man paying the rent' (Morris v. Stellakis, 27...