Opinion
INDEX NO. 151097/2018
03-29-2019
LAW OFFICES OF BRAD A. KAUFFMAN, PLLC Petitioner, v. DELL & DEAN, PLLC, Respondent.
NYSCEF DOC. NO. 40 PRESENT: HON. DORIS LING-COHAN Justice MOTION DATE __________ MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39 were read on this motion to/for ATTORNEY - FEES. The within special proceeding involves two (2) law firms, unable to agree upon the division of attorneys' fees relating to a motor vehicle/personal injury action, titled, Courtney Reilly v Cory Green, et al., (Supreme Court, Suffolk County, Index Number 601033/2017) ("underlying action"), in which petitioner was the initial counsel for the plaintiff. It is undisputed that, on or about April 2017, petitioner obtained a $25,000 settlement in the underlying action, with the insurance company for the defendant. On or about August 23, 2017, petitioner received correspondence from respondent, indicating that the plaintiff in the underlying action had retained respondent to represent her. By letter dated August 28, 2017, petitioner advised respondent that, inter alia, it had "ceased all work on the file", provided respondent with a list of its disbursements totaling $648.70, as well as the work it had performed on the case, including information about the $25,000 settlement reached with the insurance company for the defendant in the underlying action, and, indicated that petitioner maintained a lien in the matter (Exhibit H, Notice of Petition). It is undisputed that partner for respondent, Joseph G. Dell, Esq., signed such letter and returned it to petitioner, On or about December 2017, petitioner learned that respondent was in receipt of the $25,000 settlement amount and, since such time, has been attempting to receive from respondent its 1/3 share, in accordance with its retainer agreement with the plaintiff in the underlying action, to no avail. Thus, petitioner commenced the within special proceeding. The petition seeks an order: (1) setting this matter down for a hearing, pursuant to Judiciary Law 475, on the issue of attorneys' fees relating to the $25,000 settlement amount, plus interest; (2) assessing costs for the unnecessary work performed by its office including the commencement of the within proceeding; and (3) assessing sanctions against respondent. In response, respondent cross-moved, pursuant to CPLR 510, to change the venue of this matter to Suffolk County, and, to set this matter down for a hearing, pursuant to Judiciary Law 475, on the issue of attorneys' fees.
Change of Venue
Respondent's cross-motion pursuant to CPLR 510 to change the venue of this proceeding based upon the convenience of non-party witnesses and "the ends of justice" is denied, as, inter alia, respondent failed to make the necessary detailed showing to warrant the granting of such relief, as detailed below. Initially, it is noted that, in the within submissions, respondent concedes that petitioner is entitled to a full 1/3 fee, on the $25,000 settlement amount obtained in the underlying action. Specifically, respondent indicates in its cross-motion that, "so as to not burden this Court...[respondents have] no objection to the [p]etitioner's entitlement to the full amount of attorney's fees on that settlement" (P 9, 20, Weinstock Affirmation Weinstock Affirmation). Thus, respondent's cross-motion which seeks a change in venue herein, is actually a waste of judicial resources, and does not promote "the ends of justice", as alleged in the cross-moving papers. Moreover, a party moving to change venue based on the convenience of witnesses must make a detailed evidentiary showing that the convenience of non-party witnesses would be served by changing venue (Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [1st Dept 2004]). The movant must submit affidavits indicating: (1) the names, addresses and occupations of the prospective witnesses; (2) the facts to which the proposed witnesses will testify; (3) the witnesses' willingness to testify; and (4) how the witnesses would be inconvenienced (see Job v Subaru Leasing Corp., 30 AD3d 159, 159 (1st Dept 2006); Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [1st Dept 2004]). Here, no such showing has been made by respondent. In fact, respondent's papers are significantly lacking in that, inter alia, they fail to include any affidavits of potential non-party witnesses to support its application, as required, and only vaguely allege that the plaintiff in the underlying action resides in Suffolk County, with no details of her alleged expected testimony, willingness to testify, or even the need for such testimony, in this special proceeding involving the mere distribution of fees between two (2) law firms, in which it is undisputed that petitioner is entitled to the full 1/3 legal fee. As such, respondent's motion to change venue is denied.
Attorneys' Fees on $25,000 Settlement
As respondent now concedes that petitioner is entitled to the full 1/3 legal fee on the $25,000 settlement amount secured by petitioner's office, prior to the plaintiff in the underlying action retaining respondent, petitioner's request to set this matter for a hearing, pursuant to Judiciary Law 475, is deemed moot. Inexplicably, despite respondent's concession, respondent has yet to turnover to petitioner the undisputed amount of fees, instead choosing to continue the within litigation, wasting significant judicial resources.
Attorneys' Fees on Future Potential Award/Settlement
Respondent's cross-motion, pursuant to Judiciary Law 475, for a hearing on the fee distribution associated with any future, potential recovery relating to plaintiff in the underlying action's Supplemental Underinsured Motorist Claim ("SUM claim") is denied, as such issue is not ripe for determination. Notably, it is undisputed that an award or settlement has yet to be reached with respect to the SUM claim. Thus, respondent's request is denied, without prejudice to the commencement of a subsequent special proceeding should plaintiff in the underlying actions actually receive an award or settlement such claim and the attorneys herein are unable to agree upon an appropriate division of fees.
Assessment of Costs and Sanctions
In this Court's discretion, petitioner's request for costs and sanctions are denied, except for the granting of statutory costs and disbursements associated with the commencement of this proceeding, as well as costs on the motion in the amount of $100, in accordance with CPLR 8106 and 8202. Significantly, in support of its request for the alleged costs associated with the unnecessary work performed by petitioner's office, including the commencement of the within proceeding (in essence, a request for attorneys' fees), no statutory or contractual basis has been supplied to support the granting of such relief (see Hooper Assoc., Ltd. v AGS Computers, Inc., 74 NY2d 487, 492 [1989]). Order Based upon the above, it is
ORDERED that the within petition seeking an order, inter alia, setting this matter down for a hearing, pursuant to Judiciary Law 475, on the issue of attorneys' fees is granted to the extent provided herein; it is further
ORDERED that the parties shall settle judgment, in accordance with 22 NYCRR 202.48 and the provisions of this decision, returnable to the Clerk of the Court, Room 119A, 60 Centre Street, NY, NY; it is further
ORDERED that respondent's cross-motion, pursuant to CPLR 510, changing the venue of this matter to set this matter down for a hearing pursuant to Judiciary Law is denied; and, it is further
ORDERED that within 30 days of entry of this order, petitioner shall serve a copy upon respondent, with notice of entry. 3/29/2019
DATE
/s/ _________
DORIS LING-COHAN, J.S.C.