| Siracusa v Fitterman |
| 2013 NY Slip Op 07025 [110 AD3d 1055] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Kristen Siracusa, Plaintiff, v Glen Fitterman, M.D.,Defendant. Adam D. Glassman, Esq., Nonparty Appellant; Steven S. Siegel, Esq.,Nonparty Respondent. |
—[*1] John S. McDonnell (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum], and Steven S. Siegel, pro se, of counsel), for nonparty respondent.
In an action to recover damages for medical malpractice, nonparty Adam D.Glassman appeals from an order of the Supreme Court, Nassau County (Iannacci, J.),entered May 25, 2012, which granted the motion of nonparty Steven S. Siegel for leaveto file a retainer statement pursuant to 22 NYCRR 691.20 (a) (3), nunc pro tunc.
Ordered that the order is affirmed, with costs.
The nonparty appellant, Adam D. Glassman, is the attorney of record for the plaintiffin this action to recover damages for medical malpractice. On or around March 28, 2011,Glassman retained the nonparty respondent, Steven S. Siegel, on a contingent fee basis toact, in effect, as trial counsel. At no time did Siegel file a written statement of thisretainer agreement with the Office of Court Administration (hereinafter the OCA)pursuant to 22 NYCRR 691.20 (a) (3). On or about June 16, 2011, this action wassettled, and a legal fee was paid to Glassman, who in turn paid a portion of the fee toSiegel. Siegel contends that Glassman breached the retainer agreement by paying him aninsufficient portion of the fee. In December 2011, after the attorneys were unable toamicably resolve their dispute, Siegel, as a precursor to the commencement of a separateplenary action against Glassman to recover any legal fees due and owing to him, movedin this action for leave to file a retainer statement pursuant to 22 NYCRR 691.20 (a) (3),nunc pro tunc. The Supreme Court granted the motion, and Glassman appeals.
Every attorney practicing law in the Second Judicial Department who is retained withrespect to, inter alia, a medical malpractice action must file a retainer statement with theOCA within 30 days after being retained (see 22 NYCRR 691.20 [a] [1]; Giano v Ioannou, 78 AD3d768, 771 [2010]). Additionally, every "attorney retained by another attorney, on acontingent fee basis, as trial or appeal counsel or to assist in the preparation,investigation, adjustment or settlement of any such action, claim or proceeding shall,within 15 days from the date of such retainer, sign personally and [*2]file with the [OCA] a written statement of such retainer"(22 NYCRR 691.20 [a] [3]). Filing a retainer statement with the OCA is a conditionprecedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies (seeGiano v Ioannou, 78 AD3d at 771; Micro-Spy, Inc. v Small, 69 AD3d 687 [2010]). Attorneysfailing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20are precluded from asserting breach of contract causes of action for outstanding fees, andare limited to suit in quantum meruit (see Micro-Spy, Inc. v Small, 69 AD3d at689; Henry v Brenner, 271 AD2d 647 [2000]). However, a late filing of aretainer statement is sufficient to preserve an attorney's right to recover fees where thatattorney first obtains leave of court to file the statement nunc pro tunc (see Giano vIoannou, 78 AD3d at 771; Fuentes v Brookhaven Mem. Hosp., 43 AD3d 992, 994[2007]).
In exercising its discretion to extend the time to file the subject retainer statementpursuant to CPLR 2004, a court may consider such factors as the length of the delay, thereason or excuse for the delay, and any prejudice to the person opposing the motion(see Tewari v Tsoutsouras, 75 NY2d 1, 11-12 [1989]). Here, the reason for thedelay, in effect, Siegel's law office failure, was an isolated, inadvertent mistake (seeChery v Anthony, 156 AD2d 414 [1989]; Matter of Abreu, 168 Misc 2d 229,234 [Sur Ct, Bronx County 1996]), and there is no prejudice to Glassman, as theremaining contractual contentions will be resolved in connection with any separateplenary action that may be commenced. Accordingly, the Supreme Court providentlyexercised its discretion in permitting the filing of a retainer statement nunc pro tunc byextending the time to do so for "good cause" shown (CPLR 2004; see Matter ofAbreu, 168 Misc 2d at 231). Skelos, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.