| Wehrum v Illmensee |
| 2010 NY Slip Op 04780 [74 AD3d 796] |
| June 1, 2010 |
| Appellate Division, Second Department |
| John E. Wehrum, Respondent, v Thomas A. Illmensee,Appellant. |
—[*1] Sullivan & Sullivan LLP, Garden City, N.Y. (Robert G. Sullivan of counsel), forrespondent.
In an action, inter alia, to recover damages in quantum meruit, the defendant appeals from ajudgment of the Supreme Court, Nassau County (Diamond, J.), dated February 2, 2009, which,upon a decision of the same court dated January 9, 2009, made after a nonjury trial, is in favor ofthe plaintiff and against him in the principal sum of $182,500.
Ordered that the judgment is modified, on the law and on the facts, by reducing the principalsum awarded to the plaintiff from the principal sum of $182,500 to the principal sum of $17,500;as so modified, the judgment is affirmed, without costs or disbursements.
In this action, the plaintiff seeks to recover a portion of a legal fee awarded to the defendant,who served as attorney for the plaintiff's brother, James Wehrum (hereinafter James), in anaction to recover damages for personal injuries (hereinafter the underlying action). OnNovember 1, 1996, James was riding his bicycle to work when Scott Lyle, the driver of anautomobile, struck his bicycle in the rear, causing him to sustain serious personal injuries.
The defendant was James's attorney of record in the underlying action against Lyle. After ajury verdict was returned awarding James damages in the sum of $1,400,000, James wasawarded the sum of $2,500,000 pursuant to a high-low agreement, and the defendant, as attorneyof record, was awarded his contingency fee from that sum. In this action, the plaintiff claimed heis entitled to $275,000 of the defendant's fee, based upon a contract between the plaintiff and thedefendant, or in the alternative, in quantum meruit.
After a nonjury trial, the Supreme Court, in its decision, noted that the plaintiff kept no timerecords, and that although the plaintiff attended many court appearances, he never did so ascounsel, but only to provide support for his brother. The Supreme Court noted that "[t]he linebetween plaintiff acting as brother or counselor becomes extremely blurred at times." TheSupreme Court found that the cause of action sounding in breach of contract was subject todismissal on the ground that there was no enforceable contract. On the theory of quantum meruit,the Supreme Court awarded [*2]the plaintiff the principal sum of$165,000 for renegotiating a high-low agreement at the trial, whereby it was agreed that the lowfigure would be raised from $2,000,000 to $2,500,000, and the sum of $17,500 for reviewingdocuments, attending conferences, and "assisting with the Lyle plea in criminal court," wherebyLyle pleaded guilty to a nonintentional offense which would allow James to recover from Lyle'sinsurance carrier.
The authority of this Court to review findings of fact after a nonjury trial is as broad as thatof the trial court and includes the power to render the judgment it finds warranted by the facts,taking into account in a close case the fact that the trial judge had the advantage of seeing thewitnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]; O'Brien vDalessandro, 43 AD3d 1123 [2007]). Exercising that authority, we conclude that theaward of $165,000 to the plaintiff for negotiating the high-low agreement was contrary to theweight of the credible evidence.
Since there was no enforceable contract here, the plaintiff could recover in quantum meruit(see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; Tesser vAllboro Equip. Co., 302 AD2d 589, 591 [2003]). The elements of a cause of action soundingin quantum meruit are (1) performance of services in good faith, (2) acceptance of services bythe person to whom they are rendered, (3) expectation of compensation therefor, and (4)reasonable value of the services rendered (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 19[2008]).
With respect to the high-low agreement, another attorney, who was paid the sum of $50,000for his services, negotiated the initial high-low agreement with $2,000,000 as the low figure. Theplaintiff acknowledged in his trial testimony that the defendant did not ask him to renegotiatethat agreement, and specifically told him not to renegotiate the agreement. The plaintiff, stating"this is about my brother," ignored that request. Since the plaintiff's services were not requested,explicitly or implicitly, he cannot recover in quantum meruit (see Kirell v Vytra Health Plans Long Is., Inc., 29 AD3d 638, 639[2006]; JLJ Recycling Contrs. Corp. v Town of Babylon, 302 AD2d 430, 431 [2003]).
However, the award of $17,500 was justified by the evidence in the record of the plaintiff'slegal services which were accepted by the defendant in the assisting with the criminal courtmatter.
The parties' remaining contentions are without merit, or need not be addressed in light of ourdetermination. Fisher, J.P., Balkin, Roman and Sgroi, JJ., concur. [Prior Case History: 2009NY Slip Op 30098(U).]