| Doviak v Finkelstein & Partners, LLP |
| 2011 NY Slip Op 09085 [90 AD3d 696] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Robert Doviak et al.,Respondents-Appellants, v Finkelstein & Partners, LLP, et al.,Appellants-Respondents. |
—[*1] Kaplan Landau, LLP, New York, N.Y. (Eugene Neal Kaplan of counsel), and Levy Phillips& Konigsberg, LLP, New York, N.Y. (Valerie A. Phillips and Steven J. Phillips of counsel), forrespondents-appellants (one brief filed).
In an action, inter alia, to recover damages for legal malpractice and for a judgment declaringthat the defendants were discharged for cause and were not entitled to collect attorneys fees orreimbursement of their disbursements in connection with their representation of the plaintiffs inan underlying personal injury action, (1) the defendants appeal, as limited by their notice ofappeal and brief, from so much of an order of the Supreme Court, Orange County (Cohen, J.),entered August 13, 2010, as denied that branch of their cross motion which was for summaryjudgment, in effect, in favor of the defendants Finkelstein & Partners, LLP, Andrew G.Finkelstein, and Thomas C. Yatto on the declaratory judgment cause of action, and the plaintiffscross-appeal from so much of the same order as denied their motion for summary judgment onthe declaratory judgment cause of action and granted that branch of the defendants' cross motionwhich was, in effect, for summary judgment dismissing the first seven causes of action insofar asasserted against the defendant Lawrence D. Lissauer and for summary judgment in favor of thedefendant Lawrence D. Lissauer on the declaratory judgment cause of action, and (2) theplaintiffs appeal from so much of an order of the same court entered December 1, 2010, asdenied their motion pursuant to CPLR 2221 for leave to reargue or renew their motion forsummary judgment on the declaratory judgment cause of action.
Ordered that the plaintiffs' appeal from so much of the order entered December 1, 2010, asdenied that branch of their motion which was for leave to reargue their motion for summaryjudgment is dismissed, without costs or disbursements, as no appeal lies from an order denyingreargument; and it is further,
Ordered that the order entered August 13, 2010, is modified, on the law, by deleting theprovision thereof granting that branch of the defendants' cross motion which was, in effect, forsummary judgment dismissing the first cause of action insofar as asserted against the defendantLawrence D. Lissauer and for summary judgment in favor of the defendant Lawrence D. Lissaueron the declaratory judgment cause of action, and substituting therefor a provision denying [*2]that branch of the defendants' cross motion; as so modified, theorder is affirmed insofar as appealed and cross-appealed from, without costs or disbursements;and it is further,
Ordered that the order entered December 1, 2010, is affirmed insofar as reviewed, withoutcosts or disbursements.
While working on a construction site, the plaintiff Robert Doviak (hereinafter Doviak)allegedly fell approximately 22 feet, sustaining severe injuries which rendered him permanentlyand totally disabled. Doviak and his wife (hereinafter together the plaintiffs), retained thedefendant Finkelstein & Partners, LLP (hereinafter the Finkelstein Firm), to commence an actionto recover damages for personal injuries (hereinafter the underlying action). The Finkelstein Firmultimately obtained a jury verdict in favor of the plaintiffs and also brought a partially successfuladditur motion on their behalf. After judgment was entered in favor of the plaintiffs in theunderlying action, the plaintiffs discharged the Finkelstein Firm and retained successor counsel.
With successor counsel, the plaintiffs appealed from the judgment to the Appellate Division,Third Department, and obtained further additur (see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d 1348 [2009]). Theplaintiffs also commenced this action against the Finkelstein Firm and several of its attorneys,namely, the defendants Andrew G. Finkelstein, Thomas C. Yatto, and Lawrence D. Lissauer(hereinafter, collectively with the Finkelstein Firm, the defendants) asserting causes of action torecover damages for, inter alia, legal malpractice and for a judgment declaring that thedefendants were discharged for cause and were not entitled to collect attorneys fees orreimbursement of their disbursements in connection with their representation of the plaintiffs inthe underlying action. The plaintiffs alleged a myriad of misdeeds and errors as the bases forthese causes of action, including that the defendants failed to inform them of a structuredsettlement offer which exceeded not only the jury verdict, but the total award after further additurwas obtained.
The plaintiffs moved, inter alia, for summary judgment on their declaratory judgment causeof action and the defendants cross-moved, in effect, for summary judgment dismissing the firstseven causes of action and for summary judgment in their favor on the declaratory judgmentcause of action. The Supreme Court denied the plaintiffs' motion and granted the defendants'cross motion only with respect to Lissauer. The Supreme Court also denied the plaintiffs'subsequent motion for leave to reargue or renew their motion for summary judgment on thedeclaratory judgment cause of action.
The appeal from so much of the order entered December 1, 2010, as denied that branch of theplaintiffs' motion which was for leave to reargue their motion for summary judgment must bedismissed, as no appeal lies from an order denying reargument (see Schiano v Mijul, Inc., 79 AD3d726 [2010]; Nicoletti v City of NewYork, 77 AD3d 715, 716 [2010]; Weiss v Deloitte & Touche, LLP, 63 AD3d 1045, 1047 [2009]).
In its order entered August 13, 2010, the Supreme Court correctly noted that the plaintiffsfailed to submit various witnesses' signature pages or other evidence in support of their motionfor summary judgment demonstrating compliance with the requirements of CPLR 3116 (a) (see Marmer v IF USA Express, Inc., 73AD3d 868, 869 [2010]; Martinez v123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2008]; compare Moffett v Gerardi, 75 AD3d496, 498-499 [2010]). However, since the subject signature pages were submitted by thedefendants in support of their cross motion for summary judgment, the Supreme Court properlyconsidered the merits of the plaintiffs' motion.
A client has "an absolute right, at any time, with or without cause, to terminate theattorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion& Roe, 76 NY2d 38, 43 [1990]; seeCoccia v Liotti, 70 AD3d 747, 757 [2010]). "An attorney who is discharged for cause,however, is not entitled to compensation or a lien" (Callaghan v Callaghan, 48 AD3d 500, 501 [2008]; seeCampagnola v Mulholland, Minion & Roe, 76 NY2d at 44; Coccia v Liotti, 70 AD3dat 757). An attorney who violates a disciplinary rule may be discharged for cause and is notentitled to any fees for services rendered (see Quinn v Walsh, 18 AD3d 638 [2005]; Matter of Satin,265 AD2d 330 [1999]; Yannitelli v Yannitelli & Sons Constr. Corp., 247 AD2d 271, 272[1998], cert denied sub nom. Heller v Yannitelli, 525 [*3]US 1178 [1999]; Pessoni v Rabkin, 220 AD2d 732 [1995];Matter of Winston, 214 AD2d 677 [1995]). Moreover, even " '[m]isconduct that occursbefore an attorney's discharge but is not discovered until after the discharge may serve as a basisfor a fee forfeiture' " (Coccia v Liotti, 70 AD3d at 757, quoting Orendick vChiodo, 272 AD2d 901, 902 [2000]). This rule is intended to " 'promote public confidence inthe members of an honorable profession whose relation to their clients is personal andconfidential' " (Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44, quotingMartin v Camp, 219 NY 170, 176 [1916]). However, a client's "dissatisfaction withreasonable strategic choices regarding litigation" does not "as a matter of law, constitute causefor the discharge of an attorney" (Callaghan v Callaghan, 48 AD3d at 501; seeMagnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]). Ingeneral, a hearing is required to determine whether a client has cause for discharging an attorney(see Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]; Ulico Cas. Co. v Wilson, Elser,Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 [2008]; Byrne v Leblond, 25 AD3d 640,642 [2006]; Hawkins v Lenox Hill Hosp., 138 AD2d 572 [1988]).
Here, as to the Finkelstein Firm, Andrew G. Finkelstein, and Thomas C. Yatto, neither theplaintiffs nor the defendants met their prima facie burden of demonstrating their entitlement tojudgment as a matter of law with respect to the declaratory judgment cause of action. There aretriable issues of fact as to whether these defendants informed the plaintiffs of the settlement offerwhich exceeded the award after further additur (see Boglia v Greenberg, 63 AD3d 973, 975 [2009]). Likewise, theplaintiffs have not met their prima facie burden of proving that these defendants, either togetheror separately, committed errors severe enough to warrant a discharge for cause and a forfeiture offees (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 600-601[1999]; Matter of Rudolph, 60AD3d 685 [2009]; Matter ofWeltz, 16 AD3d 428 [2005]; Matter of Graham's Estate, 63 NYS2d 572,573-574 [1946]; compare SethRubenstein, P.C. v Ganea, 41 AD3d 54, 63 [2007]). The plaintiffs also rely on so-called"errors" which were, in fact, strategic choices which cannot support a discharge for cause (seeCallaghan v Callaghan, 48 AD3d at 501), and rely on arguments which are improperly raisedfor the first time on appeal (seeWhitehead v City of New York, 79 AD3d 858, 861 [2010]; Weber v Jacobs, 289AD2d 226, 227 [2001]; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561[1986]). Accordingly, the Supreme Court properly denied those branches of the plaintiffs' motionand the defendants' cross motion which were for summary judgment on the declaratory judgmentcause of action with respect to the Finkelstein Firm, Andrew G. Finkelstein, and Thomas C.Yatto.
As to Lissauer, the Supreme Court properly granted that branch of the defendants' crossmotion which was, in effect, for summary judgment dismissing the second through seventhcauses of action insofar as asserted against Lissauer, as it was conceded that he did notparticipate in the acts that the plaintiffs rely upon to support those causes of action. However,Lissauer did participate in the drafting of the proposed and amended proposed judgmentssubmitted in the underlying action. Accordingly, the defendants failed to establish their primafacie entitlement to judgment as a matter of law with respect to the cause of action alleging legalmalpractice and for a declaratory judgment in favor of Lissauer, and the Supreme Court shouldhave denied that branch of the defendants' cross motion which was, in effect, for summaryjudgment dismissing the first cause of action insofar as asserted against Lissauer and forsummary judgment in favor of Lissauer on the declaratory judgment cause of action.
A motion pursuant to CPLR 2221 to renew "must be (1) based upon new facts not offered onthe prior motion that would change the prior determination, and (2) set forth a reasonablejustification for the failure to present such facts on the prior motion" (Matter of Nelson v Allstate Ins. Co., 73AD3d 929, 929 [2010]; seeSimpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008]). As this Court hasrecently stated, "[t]he requirement that a motion for renewal be based on new facts is a flexibleone, and it is within the court's discretion to grant renewal upon facts known to the moving partyat the time of the original motion 'if the movant offers a reasonable excuse for the failure topresent those facts on the prior motion' " (Gonzalez v Vigo Constr. Corp., 69 AD3d 565, 566 [2010], quotingMatter of Surdo v Levittown Pub.School Dist., 41 AD3d 486, 486 [2007]; see Renna v Gullo, 19 AD3d 472, 473 [2005]). Nevertheless, amotion for leave to renew "is not a second chance freely given to parties who have not exerciseddue diligence in making their first factual presentation" (Coccia v Liotti, 70 AD3d at 753[internal quotation marks omitted]).[*4]
Here, although the plaintiffs proffered a reasonablejustification for their failure to submit the various witnesses' signature pages along with excerptsfrom their depositions in support of their motion for summary judgment, namely, that they hadnot yet been returned by the witnesses when the motion was filed (compare Moffett vGerardi, 75 AD3d at 498-499), the signature pages did not constitute "new facts. . . that would change the prior determination," as the Supreme Court had alreadyproperly, under the circumstances of this case, reached the merits of the plaintiffs' motion despitetheir failure to submit the signature pages. Thus, the Supreme Court providently exercised itsdiscretion in denying renewal on this basis. In addition, the plaintiffs did not proffer a reasonablejustification for failing to submit, in the first instance, the other evidence submitted in support ofthe motion for renewal and, in any event, the evidence submitted would not have changed theprior determination. Accordingly, the Supreme Court properly denied that branch of theplaintiffs' motion which was for leave to renew.
The plaintiffs' remaining contention is without merit. Skelos, J.P., Balkin, Leventhal andLott, JJ., concur.