Opinion
Nos. 3154, 3154A
June 29, 2010.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 22, 2009, which, in an action for breach of contract and an accounting arising out of a dispute between law firms over referral fees, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered August 11, 2009, unanimously dismissed, without costs, as superceded by the appeal from the September 22, 2009 order.
Godosky Gentile, P.C., New York (Anthony P. Gentile of counsel), for appellants.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for respondent.
Before: Tom, J.P., Sweeny, Catterson, McGuire and Román, JJ.
The motion court properly found that defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, warranting the denial of the motion regardless of the sufficiency of plaintiffs opposing papers ( see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324). Defendants submitted an attorney's affirmation stating that plaintiff failed to comply with the mandates of the Rules of the Appellate Division, First Department (22 NYCRR) § 603.7 (a) (requiring the timely filing of retainer statements with the Office of Court Administration) and DR 2-107 of the Code of Professional Responsibility ( 22 NYCRR 1200.12) (prohibiting fee-sharing among attorneys not associated in the same firm, unless the client consents to employment of the other lawyer after full disclosure), and thus, was not entitled to collect any referral fees from defendants. Defendants offered no evidence to support their claim of noncompliance.
Furthermore, defendants' claim that there were no timely filed retainer statements or communications with clients concerning the fee-splitting arrangement was refuted by plaintiffs submission of extensive documentation in opposition to defendants' motion. Whether the documentation produced satisfies court rules and the Code of Professional Responsibility raises issues of fact which, in any event, preclude the granting of summary judgment in favor of defendants ( see Fishkin v Taras, 54 AD3d 260).