| Sklover & Donath, LLC v Eber-Schmid |
| 2010 NY Slip Op 02002 [71 AD3d 497] |
| March 16, 2010 |
| Appellate Division, First Department |
| Sklover & Donath, LLC, Respondent, v BarbaraEber-Schmid et al., Appellants. |
—[*1] Steinberg & Cavaliere, LLP, White Plains (Steven A. Coploff of counsel), forrespondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 4, 2009,which granted plaintiff's motion to dismiss defendants' counterclaims, unanimously affirmed,without costs.
Plaintiff law firm represented defendants in a federal civil action and state criminal actionarising out of defendants' misappropriation of funds from defendant wife's prior employer.During the course of the representation, these parties renegotiated a fee agreement under whichdefendants would pay plaintiff a flat rate of $7,500 per month and provide $4,000 in in-kindservices. Despite making the monthly payments, defendants failed to pay off the outstandingbalance and refused to grant plaintiff a lien on their real property. Plaintiff initiated this action torecover the fees, and withdrew as counsel in the federal action. Defendants assertedcounterclaims for breach of contract, legal malpractice, breach of fiduciary and fraud.
Defendants failed to allege a viable counterclaim for breach of contract, as they were unableto identify the terms of the agreement allegedly breached (767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75 [2004]).Nothing in the modified agreement prohibited plaintiff from requesting a lien on real property,withdrawing as counsel, or commencing an action based on unpaid legal fees.
Nor did defendants properly allege a counterclaim for legal malpractice. The steps plaintifftook in litigating these cases were among many reasonable options (see Rosner v Paley,65 NY2d 736, 738 [1985]). The allegations that plaintiff's decisions were unreasonable are basedon hindsight, which is "an unreliable test for determining the past existence of legal malpractice"(Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000] [citation omitted]).
As to breach of fiduciary duty, defendants' contention that plaintiff prolonged the litigationfor purposes of "churning" the case to increase the legal fees is speculative and conclusory.Defendants failed to otherwise allege any facts showing that their attorney followed anyinappropriate course of action.
There was no viable counterclaim for fraud in the absence of facts alleging that plaintiffknew its estimate of legal fees [*2]was false at the time it wasmade (see Mergler v Crystal Props. Assoc., 179 AD2d 177, 181 [1992]).Concur—Mazzarelli, J.P., Saxe, Moskowitz, Acosta and Renwick, JJ.