Opinion
10-P-2213
10-07-2011
KARLENE A. MULCAHY v. ANTHONY M. SALERNO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Karlene A. Mulcahy hired attorney Anthony M. Salerno to represent her in a personal injury suit. She later discharged Salerno and retained successor counsel, Nicole Sullivan. Mulcahy's complaint that Salerno charged her excessive fees and failed adequately to have medical liens discharged was submitted to arbitration in accordance with the contingency fee agreement between them; the dispute was settled before arbitration proceedings commenced. Still, Mulcahy has filed the instant suit with claims identical to those settled earlier. She now appeals the decision and order of the Appellate Division of the District Court Department affirming the dismissal of her claims on summary judgment.
Substantially for the reasons set forth in the clear and concise findings and rulings of the judge below, and recited anew by the opinion of the Appellate Division, the defendant Salerno has met his burden and established that there is no genuine issue on any material fact relating to the defense of accord and satisfaction. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). We note specifically that the judge was not required to conduct an evidentiary hearing on the issue of fraud in the inducement where the plaintiff was represented by counsel in negotiating and executing the settlement, and asserts no misrepresentation by any party.
Decision and order of the Appellate Division affirmed.
By the Court (Kafker, Green & Grainger, JJ.),