Summary
In Wagner, an attorney's former clients alleged that they would have prevailed on a motion seeking a preliminary injunction if it had been filed earlier, whereas the attorney argued that the delay was intended to allow a new expert to prepare a report.
Summary of this case from Picarella v. Liddle & Robinson L.L.P.Opinion
2014-04-1
WAGNER DAVIS P.C., Plaintiff–Respondent, v. Rosa GARGANO, et al., Defendants–Appellants.
Gunilla Perez–Faringer, White Plains, for appellants. Porzio, Bromberg & Newman, P.C., New York (Bonnie Reid Berkow of counsel), for respondent.
Gunilla Perez–Faringer, White Plains, for appellants. Porzio, Bromberg & Newman, P.C., New York (Bonnie Reid Berkow of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered August 20, 2013, which granted plaintiff's motion for summary judgment and ordered a hearing to determine the amount of attorney's fees to which plaintiff is entitled, unanimously affirmed, without costs.
In this action for unpaid legal fees, defendants asserted a counterclaim for legal malpractice alleging that they would have prevailed on a motion for a preliminary injunction in the underlying action commenced by defendants against their neighbors over a retaining wall between their properties, if it had been made earlier by plaintiff. However, defendants failed to establish that they would have been successful on the motion absent counsel's delay ( see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 536, 965 N.Y.S.2d 458 [1st Dept.2013], lv. dismissed21 N.Y.3d 1059, 974 N.Y.S.2d 28, 996 N.E.2d 909 [2013] ). In any event, plaintiff's delay while a new expert prepared a report on the challenged retaining wall, was a reasonable strategic decision that cannot form the basis of a malpractice claim ( Morrison Cohen Singer & Weinstein v. Zuker, 203 A.D.2d 119, 119, 610 N.Y.S.2d 226 [1st Dept.1994] ).
Defendants' contention that the claims for fees should not have been granted due to plaintiff's failure to comply with the rules on fee arbitration is unavailing. The complaint expressly states that the amount of damages sought is $56,943.25, which is beyond the maximum amount covered by the Fee Dispute Resolution Program ( see22 NYCRR 137.1[b][2]; Kerner & Kerner v. Dunham, 46 A.D.3d 372, 848 N.Y.S.2d 617 [1st Dept.2007] ). Although defendants' arguments regarding the amount of the fees were deferred to an evidentiary hearing, the motion court properly declined to consider the un-notarized, out of state report of defendants' expert ( seeCPLR 2309; CPLR 2106).