| Utility Audit Group v Apple Mac & R Corp. |
| 2009 NY Slip Op 01469 [59 AD3d 707] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Utility Audit Group, Respondent-Appellant, and John L. O'Kelly,Respondent, v Apple Mac & R Corp., Also Known as Apple Mac & R. Inc., DoingBusiness as MacMenamin's Pub, et al., Appellants-Respondents. |
—[*1] John L. O'Kelly, East Williston, N.Y., respondent pro se and forrespondent-appellant.
In an action, inter alia, to recover damages for breach of contract, to recover on an accountstated, and to recover in quantum meruit for services rendered, the defendants appeal from somuch of an order of the Supreme Court, Nassau County (Bucaria, J.), dated April 9, 2007, asdenied their motion for summary judgment dismissing the first, second, and seventh causes ofaction and, upon searching the record, awarded summary judgment to the plaintiff John L.O'Kelly on the seventh cause of action, and the plaintiff Utility Audit Group cross-appeals fromso much of the same order as denied its cross motion for summary judgment on the second causeof action.
Ordered that the defendants' appeal from so much of the order as denied their motion forsummary judgment dismissing the first, second, and seventh causes of action is dismissed,without costs or disbursements; and it is further,
Ordered that the cross appeal is dismissed, without costs or disbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
As a general rule, we do not consider an issue on a subsequent appeal that was raised, orcould have been raised, in an earlier appeal that was dismissed for lack of prosecution (seeRubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d350 [1976]). The plaintiff Utility Audit Group (hereinafter UAG) appealed, and the defendantscross-appealed, from an order dated [*2]August 30, 2005, which,inter alia, denied that branch of UAG's motion which was for summary judgment on the secondcause of action to recover on an account stated, and granted those branches of the motion whichwere for summary judgment on the first cause of action alleging breach of contract and theseventh cause of action sounding in quantum meruit. In a decision and order on motion datedJuly 17, 2006, this Court dismissed those appeals for failure to prosecute. We decline to exerciseour discretion to determine the merits of the present appeal and cross appeal to the extent thatthey raise issues that could have been raised on the appeal and cross appeal from the prior orderthat were dismissed for lack of prosecution (see Associates Home Equity Servs., Inc. v Gambella, 40 AD3d896 [2007]).
As for the defendants' appeal from so much of the order as, upon searching the record,awarded summary judgment to the plaintiff John L. O'Kelly on the seventh cause of actionsounding in quantum meruit, the Supreme Court properly exercised its authority pursuant toCPLR 3212 (b) in searching the record and awarding summary judgment to a nonmoving partywith respect to an issue that was the subject of the motion before the court (see Dunham vHilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Federal Natl. Mtge. Assn. v Katz, 33 AD3d 755 [2006]).
Contrary to the defendants' contention, O'Kelly's failure to comply with 22 NYCRR 1215.1,otherwise known as the "letter of engagement rule," did not prevent him from recovering legalfees based on the theory of quantum meruit (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54 [2007]).Similarly, there is no evidence that he violated the disciplinary rules set forth in the Code ofProfessional Responsibility that prohibit a lawyer from practicing law under a trade name (Codeof Professional Responsibility DR 2-102 [22 NYCRR 1200.7]), forming a partnership with anonlawyer (Code of Professional Responsibility DR 3-102 [22 NYCRR 1200.17]), and sharinglegal fees with a nonlawyer (Code of Professional Responsibility DR 3-103 [22 NYCRR1200.18]). Moreover, O'Kelly did not violate part 137 of the Rules of the Chief Administrator ofthe Courts, which does not apply to legal-fee disputes that involve sums greater than $50,000.
The parties' remaining contentions are without merit. Spolzino, J.P., Santucci, Leventhal andChambers, JJ., concur.