Opinion
651264/2020
07-30-2021
CONWAY AND CONWAY, Plaintiff, v. Adam KAPLAN and Daniel Kaplan, Defendants.
Conway & Conway, New York, NY (Kevin P. Conway of counsel), for plaintiff. Law office of Daniel L. Abrams, PLLC, New York, NY (Daniel L. Abrams of counsel), for defendants.
Conway & Conway, New York, NY (Kevin P. Conway of counsel), for plaintiff.
Law office of Daniel L. Abrams, PLLC, New York, NY (Daniel L. Abrams of counsel), for defendants.
Gerald Lebovits, J.
In this action to recover legal fees, plaintiff moves under CPLR 4317 to refer the remaining issues in the action to a special referee to hear and determine. The motion is denied.
As an initial matter, plaintiff's contention that a reference is feasible here because all necessary paper discovery has been exchanged is hotly contested by defendants. But even setting that issue to one side, this court concludes that it lacks the authority under CPLR 4317 to direct a referee to hear and determine the issue of the amount to which plaintiff is entitled in legal fees.
Defendants do not consent to a reference. (See CPLR 4317 [a] [permitting references to hear and determine on consent of the parties].) Therefore, under CPLR 4317 (b), this court may grant plaintiff's requested reference in only three circumstances: (i) if the trial of the issue "will require the examination of a long account"; (ii) if the reference involves "an issue of damages separately triable and not requiring a trial by jury," for example where a party is seeking money damages incidental to equitable relief; or (iii) "where otherwise authorized by law."
Plaintiff does not identify any other legal provision beyond CPLR 4317 (b) that would authorize a compulsory reference of the legal-fee issue at hand. And if this action goes to trial, plaintiff would be entitled to have a jury resolve its claim for money damages on a contract. (See Behrins & Behrins, P.C. v Chan , 15 AD3d 515, 516 [2d Dept 2005].) Thus, this court may direct a reference to hear and determine over defendant's objection only if trial of the issue would "require the examination of a long account." This court concludes that it would not.
The use in New York of compulsory references to decide questions involving "long accounts" dates back to the 1760s. (See Steck v Colorado Fuel & Iron Co. , 142 NY 236, 238-240 [1894].) An action will be considered one involving a long account within the meaning of the statute only in "those very exceptional cases" when the issues involved are "so numerous and tedious that it would be impossible for a jury to resolve them within the reasonable time limits of a trial," and "primarily present an issue of appropriate computation." ( Schanback v Schanback , 130 AD2d 332, 340-341 [2d Dept 2005] ; accord Safway Steel Prods. v Craft Architectural Metals Corp. , 167 AD2d 243, 244-245 [1st Dept 1990].)
The moving party's burden to establish that the trial will involve examining a long account is "enforced with special strictness where attorneys move for a reference of issues involving their claims for professional services." ( Pace v Amend , 164 AD 206, 208 [1st Dept 1914].) A compulsory reference may be granted in an action for attorney fees only in "extreme cases, where it is reasonably apparent that the items are so numerous that a jury cannot hold them in mind and make a proper determination." ( Russell v McDonald , 125 AD 844, 845 [1st Dept 1908].) This requirement will be met only where the trial will involve litigation of "many separate and distinct items of account." ( Spence v Simis , 137 NY 616, 617 [1893].) "Numerous itemized charges for one matter" rather than for many matters, on the other hand, "do not make a long account" within the meaning of the statute. ( Russell , 125 AD at 845 [emphasis added]; accord Randall v Sherman , 131 NY 669, 669 [1892] ; see also Hedges v Methodist Protestant Church of Village of Williamsburgh , 23 AD 347, 347 [1st Dept 1897] [reversing order of reference of issue of attorney fees incurred over several actions and proceedings].)
Here, plaintiff concedes that the legal fees at issue were billed over a period of less than four months in connection with a single matter. (See NYSCEF No. 112 at ¶¶ 2, 3, 5 [affirmation of Kevin P. Conway].) Nor does plaintiff identify any other consideration that might make this action one of the extreme cases that qualify as a long account. At most, plaintiff argues that defendants likely "will challenge Plaintiff's billing on a line-by-line basis," and that plaintiff "does not wish to burden the Court with this issue." (NYSCEF No. 114 at 3.) Under the cases cited above, that is not sufficient.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that plaintiff's motion for reference of this action to a referee to hear and determine is denied.