| Rife v Barnes Firm, P.C. |
| 2008 NY Slip Op 01199 [48 AD3d 1228] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Leondis Rife et al., Appellants, v The Barnes Firm, P.C., FormerlyKnown as Cellino & Barnes, Respondent. |
—[*1] Mark R. Uba, Williamsville, for defendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), enteredNovember 29, 2006 in a breach of contract action. The order denied plaintiffs' motions for classcertification and for partial summary judgment and granted defendant's cross motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this breach of contract action on their own behalf andon behalf of a purported class of personal injury plaintiffs seeking to recoup certain expenses anddisbursements that they allegedly were improperly charged when defendant law firm closed theirfiles. Supreme Court properly denied plaintiffs' motions for class certification and for partialsummary judgment and granted defendant's cross motion for summary judgment dismissing thecomplaint.
Addressing first plaintiffs' motion for class certification, we note that a class action may bemaintained in New York only after the five prerequisites set forth in CPLR 901 (a) have beenmet, i.e., the class is so numerous that joinder of all members is impracticable, commonquestions of law or fact predominate over questions affecting only individual members, theclaims or defenses of the representative parties are typical of the class as a whole, therepresentative parties will fairly and adequately protect the interests of the class, and a classaction is superior to other available methods for the fair and efficient adjudication of thecontroversy (see Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1998]). "Oncethese prerequisites are satisfied, the court must consider the factors set out in CPLR 902, to wit,the possible interest of class members in maintaining separate actions and the feasibility thereof,the existence of pending litigation regarding the same controversy, the desirability of theproposed class forum and the difficulties likely to be encountered in the management of a classaction" (id.). The party or parties seeking class certification have the burden ofestablishing compliance with every requirement of both CPLR 901 and 902, and thedetermination whether to certify a class is "vested in the sound discretion of the court" (Askeyv Occidental Chem. Corp., 102 AD2d 130, [*2]137 [1984]).Moreover, "a class action may not be maintained where the wrongs asserted are individual to thedifferent persons involved and each of the persons aggrieved may determine . . . theremedy which he [or she] will seek and may be subject to a defense not available against others"(Gaynor v Rockefeller, 15 NY2d 120, 129 [internal quotation marks omitted]). "'Separate wrongs to separate persons, though committed by similar means and even pursuant to asingle plan' . . . 'do not alone create a common or general interest in those who arewronged' " (id., quoting Society Milion Athena, Inc. v National Bank of Greece,281 NY 282, 292 [1939]).
Here, we conclude that plaintiffs failed to establish that all of the prerequisites of CPLR 901have been met. We note in particular that plaintiffs failed to establish that the claims of therepresentative parties or the defenses available against them are typical of the class as a whole.The record establishes that, one month after commencing this action, plaintiff Leondis Rifeexecuted a statement in the context of settling his personal injury action wherein he "agree[d] tothe disbursement of the funds set forth above," which included the disbursements to defendant.Plaintiff Virginia Goins-Henry, however, did not remit payment for the expenses she now claimsas damages against defendant, and defendant contends that other expenses are also owed. Thus,the defenses available to defendant for the representative plaintiffs are varied and individualized,as are the claims of those two plaintiffs.
Moreover, plaintiffs wholly failed to address the factors set forth in CPLR 902. One of thosefactors, the existence of pending litigation concerning the same controversy, was particularlyrelevant inasmuch as, while plaintiffs' motion for class certification was pending, there waslitigation pending concerning expenses charged to one of defendant's other former clients. Thatlitigation had progressed to the point that an evidentiary hearing had been ordered by SupremeCourt to determine the disbursements owed in that matter. The existence of pending litigation onthe same issues is relevant to another factor in CPLR 902, the feasibility of maintaining separateactions, because the pending litigation demonstrates that separate actions are indeed feasible. Wenote in addition that each member of the purported class was advised in his or her retaineragreement with defendant that he or she had "the right to arbitrate any fee dispute under the NewYork State Fee Dispute Resolution Program." Disputes over disbursements are easily resolved inthat forum for little cost or no cost, and thus arbitration is a separate available alternative forumfor the purported class members. We thus conclude that the court properly denied plaintiffs'motion for class certification based on plaintiffs' failure to comply with CPLR 901 and 902.
We conclude on the merits that the court properly denied plaintiffs' motion for partialsummary judgment and granted defendant's cross motion for summary judgment dismissing thecomplaint. The record establishes that Rife retained defendant to prosecute a personal injuryaction on his behalf and that he thereafter discharged defendant and hired another attorney whosettled the action. According to Rife, he was "overcharged" by defendant for items that hebelieved should not be treated as litigation expenses because they were merely defendant's officeoverhead expenses. As previously noted herein, however, Rife executed a statement in thecontext of that settlement wherein he agreed to the disbursement of the funds that included thepayment of the disputed disbursements to defendant. Rife thereby relinquished his claim assertedin this action against defendant by voluntarily agreeing to remit payment of the disbursements todefendant, and the court therefore properly granted that part of defendant's motion for summaryjudgment dismissing the complaint with respect to Rife.
With respect to the remaining plaintiff, the record establishes that she retained defendant toprosecute two personal injury matters. Also according to Goins-Henry, defendant soughtpayment of litigation expenses that in her view were in the nature of office overhead expenses.Goins-Henry alleged that, in one of the matters, $63.64 in expenses were improperly charged and[*3]paid and that, in the other matter, she disputed the amount of$289.48 for disbursements charged by defendant. Pursuant to Rules of the Appellate Division,Fourth Department (22 NYCRR) § 1022.31 (c), the contingent fee in a personal injuryaction is a "percentage [that] shall be computed on the net sum recovered after deducting fromthe amount recovered expenses and disbursements for expert testimony and investigative or otherservices properly chargeable to the enforcement of the claim or prosecution of the action." Theretainer agreement between Goins-Henry and defendant stated that "[a]ttorneys' fees are to be. . . calculated after expenses associated with prosecuting the case have beendeducted from the gross settlement or award." Here, the court properly granted that part ofdefendant's motion with respect to Goins-Henry inasmuch as defendant established that thedisputed expenses were reasonable and related directly to the prosecution of the personal injurymatters of Goins-Henry, and she failed to raise an issue of fact (see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche,Centra, Fahey and Gorski, JJ.