| Eisen v Feder |
| 2008 NY Slip Op 00620 [47 AD3d 595] |
| January 31, 2008 |
| Appellate Division, First Department |
| Morris J. Eisen, Individually and as Successor in Interest to MorrisJ. Eisen, P.C., Respondent-Appellant, v Morton Feder, Appellant-Respondent, et al.,Defendants. |
—[*1] Morton Povman, Forest Hills, for respondent-appellant.
Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 23,2006, awarding damages to plaintiff after trial in an action to recover a share of the legal feesearned in cases plaintiff referred to defendants prior to plaintiff's disbarment on January 23,1992, and bringing up for review orders of the same court and Justice, entered on or aboutJanuary 7, 2005 and May 18, 2006, which, insofar as challenged, (1) held that plaintiff's breachof contract claims were not time-barred, (2) awarded damages against defendant Morton Federindividually, (3) declined to credit Feder for alleged setoffs, (4) failed to award breach of contractdamages to plaintiff on certain of the referred cases, (5) refused to award damages against theindividual defendants for cases that were resolved after September 11, 1989, and (6) computedinterest on the breach of contract claims from the date of plaintiff's demand for payment,unanimously affirmed, with costs.
On a prior appeal, this Court held that plaintiff may recover on his breach of contract claimsfor cases he referred and which were disposed of prior to his disbarment on January 23, 1992,and on a quantum meruit basis, for cases on which he worked and were still pending at the timeof his disbarment (see 307 AD2d 817 [2003]). The Court also determined that the breachof contract claims accrued when defendants received fees for the referred cases and refuseddemands for payment, and that the statute of limitations for any quantum meruit recovery beganto run when such cases were disposed of (id.). In light of our prior decision, the trial courtproperly determined that plaintiff's breach of contract claims were not time-barred and weretriggered upon plaintiff's letter demanding payment dated April 11, 1997 (Soeiro vBrewer, 237 AD2d 208, 209 [1997]). However, the court appropriately declined to awarddamages to plaintiff on a number of the referred cases where he failed to demonstrate sufficientlythe payment of legal fees to defendants in those instances.
The award of damages against Feder individually for cases that plaintiff referred to him andresolved prior to September 11, 1989 was proper, where Feder offered testimony that his [*2]professional corporation terminated in the early 1980s and hepracticed as an individual until September 11, 1989 at which time defendant Feder Connick &Goldstein, P.C. (FCG) formed. For cases resolved after the formation of FCG, the courtappropriately declined to award damages against the individual defendants, because there was aninadequate showing that the individual defendants performed work on the subject cases orreceived any specific portion of the fees earned from the cases.
The trial court also properly declined to credit Feder for monies purportedly owed to him forcases he referred to plaintiff pursuant to their agreement. Feder failed to produce competentevidence demonstrating that he is entitled to a setoff for those cases.
The computation of interest on the breach of contract claims from April 11, 1997, the datethat plaintiff demanded payment, was proper because it is the date that the claims accrued (CPLR5001; Eisen v Feder, 307 AD2d at 818). Concur—Andrias, J.P., Nardelli,Williams, Catterson and Moskowitz, JJ.