Summary
noting that "court properly awarded damages based on the interest which would have been earned on the funds during the period they were misappropriated and properly trebled that award pursuant to Judiciary Law § 487"
Summary of this case from Amalfitano v. RosenbergOpinion
June 23, 1992
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Defendant, plaintiff's former counsel, has made no attempt to demonstrate that he was not afforded a full and fair opportunity, in prior disbarment proceedings (Matter of Kaplan, 137 A.D.2d 328, lv denied 73 N.Y.2d 907), to litigate the issues of whether he failed to segregate funds which belonged to plaintiff and whether he then misappropriated those funds for his personal use for a period of time. He was therefore properly held to be precluded from relitigating those issues in the within proceeding for, inter alia, legal malpractice, conversion and breach of contract (Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, cert denied 488 U.S. 1005).
The IAS court properly awarded damages based on the interest which would have been earned on the funds during the period they were misappropriated and properly trebled that award pursuant to Judiciary Law § 487 (2). Finally, the court properly held that defendant must forfeit the fee retained from the proceedings of the settlement which he had negotiated. An attorney has no right to compensation where he has been discharged for cause (Teichner v. W J Holsteins, 64 N.Y.2d 977).
We have reviewed defendant's remaining claims and find that they are without merit.
Concur — Ellerin, J.P., Kupferman, Asch and Kassal, JJ.