| Mendelsohn v Ferber |
| 2010 NY Slip Op 04556 [73 AD3d 1139] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Jennifer A. Mendelsohn, Appellant-Respondent, v StevenB. Ferber et al., Respondents-Appellants. |
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In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Suffolk County (Whelan,J.), dated October 6, 2009, as granted those branches of the defendants' motion which were forsummary judgment dismissing the first and third causes of action in the amended verifiedcomplaint, and the defendants cross-appeal, as limited by their brief, from so much of the sameorder as denied that branch of their motion which was for summary judgment dismissing thesecond cause of action in the amended verified complaint.
Ordered that the order is affirmed, without costs or disbursements.
From March 1995 to October 2004, the plaintiff worked for the defendants as an associateattorney, specializing in the areas of matrimonial and family law. In connection with suchemployment, the parties allegedly agreed that the plaintiff would be entitled to a percentage ofcertain fees earned by the defendants from clients brought in directly by her or referred to her.
In November 2005, after her employment with the defendants ended, the plaintiff started herown law practice, taking with her many of the defendants' clients from her areas of practice.Thereafter, the plaintiff allegedly asked the defendants to turn over to her any unearned retainerfees paid to the defendants by each of those clients pursuant to a retainer agreement, as well ascertain monies due and owing under the employment agreement, but the defendants refused. Theplaintiff commenced this action to recover, inter alia, damages in the amount of the unearnedretainer fees under theories of breach of contract and breach of fiduciary duty, and also torecover damages for the defendants' alleged breach of the employment agreement.
The defendants established their prima facie entitlement to judgment as a matter of lawdismissing the first cause of action to recover damages in the amount of the unearned retainerfees based on the defendants' alleged breach of contract by demonstrating that the plaintiff isneither a party to, nor a third-party beneficiary of, the contracts at issue, i.e., the retaineragreements between the defendants and the subject clients (see East Coast Athletic Club, Inc.v Chicago Tit. Ins. Co., 39 AD3d 461, 463 [2007]). In opposition, the plaintiff failed to raisea triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Evenassuming, as the plaintiff claims, that her first cause of action is, in fact, one for money had andreceived, it is still subject to dismissal since the plaintiff failed to allege in the amended verified[*2]complaint that the unearned retainer fees at issue belong toher, whether by assignment or otherwise (see State of New York v International AssetRecovery Corp., 56 AD3d 849, 852 [2008]). Accordingly, the Supreme Court properlygranted that branch of the defendants' motion which was for summary judgment dismissing thefirst cause of action.
Moreover, the defendants established their prima facie entitlement to judgment as a matter oflaw dismissing the third cause of action to recover, inter alia, damages in the amount of theunearned retainer fees based on the defendants' alleged breach of their fiduciary duty owed to theplaintiff with respect to those funds under Rules of Professional Conduct (22 NYCRR 1200.0)rule 1.15 (a), by demonstrating that the plaintiff failed to allege in the amended verifiedcomplaint that the unearned retainer fees belong to her (cf. Rules of ProfessionalConduct [22 NYCRR 1200.00] rule 1.15 [a]; see generally Art Capital Group, LLC vNeuhaus, 70 AD3d 605 [2010]). In opposition, the plaintiff failed to raise a triable issue offact (see Alvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, the Supreme Courtproperly granted that branch of the defendants' motion which was for summary judgmentdismissing the third cause of action.
The defendants, however, failed to establish their prima facie entitlement to judgment as amatter of law dismissing the second cause of action to recover damages for their alleged breachof the employment agreement by demonstrating an accord and satisfaction (see Altamuro vCapoccetta, 212 AD2d 904, 905 [1995]). Accordingly, the Supreme Court properly deniedthat branch of the defendants' motion which was for summary judgment dismissing the secondcause of action regardless of the sufficiency of the plaintiff's opposing papers (see Alvarez vProspect Hosp., 68 NY2d at 324). Rivera, J.P., Florio, Miller and Austin, JJ., concur.[Prior Case History: 26 Misc 3d 190.]