Zito v. Harding

• Decision Date: 29 October 2013
• Citation: 2013 N.Y. Slip Op. 06999,110 A.D.3d 628,975 N.Y.S.2d 2
• Parties: Robert J.A. ZITO, Plaintiff–Respondent–Appellant, v. Fischbein Badillo Wagner HARDING, et al., Defendants. Nimkoff Rosenfeld & Schechter, LLP, Nonparty Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 628

975 N.Y.S.2d 2

2013 N.Y. Slip Op. 06999

Robert J.A. ZITO, Plaintiff–Respondent–Appellant,

v. Fischbein Badillo Wagner HARDING, et al., Defendants.Nimkoff Rosenfeld & Schechter, LLP, Nonparty Appellant–Respondent.

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

Oct. 29, 2013.

Nimkoff Rosenfeld & Schechter, LLP, Syosset (Ronald A. Nimkoff of counsel), for appellant-respondent.

Carter Ledyard & Milburn LLP, New York (Gary D. Sesser of counsel), for respondent-appellant.

FRIEDMAN, J.P., SWEENY, ACOSTA, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 8, 2012, which denied nonparty Nimkoff Rosenfeld & Schechter, LLP's motion to modify and confirm a special referee's report, and granted so much of plaintiff's motion as sought to reject the report, unanimously affirmed, with costs.

The motion court correctly rejected the special referee's report and recommendation on the ground that the referee failed to hear evidence as to whether Nimkoff received a settlement offer in the underlying action and failed to communicate it to plaintiff. Plaintiff submitted an affirmation by counsel for defendant Fischbein Badillo Wagner Harding stating that he personally had conveyed an offer of $225,000 to $250,000 to Nimkoff in January 2007. Plaintiff testified that he first learned of the offer in late 2010. However, the referee declined to take the testimony of the attorney. If proven, the failure to communicate a settlement offer would constitute a violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.4(a)(3) (“A lawyer shall ... keep the client reasonably informed about the status of the matter),” and could bar Nimkoff's claim to fees, at least from February 2007 onward ( see Doviak v. Finkelstein & Partners, LLP, 90 A.D.3d 696, 699, 934 N.Y.S.2d 467 [2d Dept. 2011]; see also Yannitelli v. Yannitelli & Sons Constr. Corp., 247 A.D.2d 271, 668 N.Y.S.2d 613 [1st Dept. 1998], lv. denied92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317 [1998] ). Moreover, there is evidence that plaintiff ultimately accepted an offer of $265,000 ( see Boglia v. Greenberg, 63 A.D.3d 973, 975, 882 N.Y.S.2d 215 [2d Dept. 2009] ).

Contrary to Nimkoff's argument, prior orders dismissing plaintiff's claims alleging malpractice and ethical violations against it are not barred by the doctrine of law of the case, collateral estoppel or res judicata. Since evidence was offered to show that plaintiff first learned of the alleged January 2007 settlement offer in late 2010, at least a year after the motion to dismiss had been fully submitted, there is no identity of issues, as required by law of the case ( see Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975] ) and collateral estoppel ( see Buechel v. Bain, 97 N.Y.2d 295, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert. denied535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ). And, since the recordsuggests that the aforesaid prior orders did not arise from the same “factual grouping” as plaintiff's current settlement claim, res judicata does not bar the claim ( see UBS Sec. LLC v. Highland Capital Mgt., L.P., 86 A.D.3d 469, 474,...