Doviak v. Finkelstein & Partners, LLP

90 A.D.3d 696, 934 N.Y.2d 467
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 13, 2011
StatusPublished
Cited by33 cases

This text of 90 A.D.3d 696 (Doviak v. Finkelstein & Partners, LLP) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doviak v. Finkelstein & Partners, LLP, 90 A.D.3d 696, 934 N.Y.2d 467 (N.Y. Ct. App. 2011).

Opinion

[697]*697While working on a construction site, the plaintiff Robert Doviak (hereinafter Doviak) allegedly fell approximately 22 feet, sustaining severe injuries which rendered him permanently and totally disabled. Doviak and his wife (hereinafter together the plaintiffs), retained the defendant Finkelstein & Partners, LLP (hereinafter the Finkelstein Firm), to commence an action to recover damages for personal injuries (hereinafter the underlying action). The Finkelstein Firm ultimately obtained a jury verdict in favor of the plaintiffs and also brought a partially successful additur motion on their behalf. After judgment was entered in favor of the plaintiffs in the underlying action, the plaintiffs discharged the Finkelstein Firm and retained successor counsel.

With successor counsel, the plaintiffs appealed from the judgment to the Appellate Division, Third Department, and obtained further additur (see Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348 [2009]). The plaintiffs also commenced this action against [698]*698the Finkelstein Firm and several of its attorneys, namely, the defendants Andrew G. Finkelstein, Thomas C. Yatto, and Lawrence D. Lissauer (hereinafter, collectively with the Finkelstein Firm, the defendants) asserting causes of action to recover damages for, inter alia, legal malpractice and for a judgment declaring that the defendants were discharged for cause and were not entitled to collect attorneys fees or reimbursement of their disbursements in connection with their representation of the plaintiffs in the underlying action. The plaintiffs alleged a myriad of misdeeds and errors as the bases for these causes of action, including that the defendants failed to inform them of a structured settlement offer which exceeded not only the jury verdict, but the total award after further additur was obtained.

The plaintiffs moved, inter alia, for summary judgment on their declaratory judgment cause of action and the defendants cross-moved, in effect, for summary judgment dismissing the first seven causes of action and for summary judgment in their favor on the declaratory judgment cause of action. The Supreme Court denied the plaintiffs’ motion and granted the defendants’ cross motion only with respect to Lissauer. The Supreme Court also denied the plaintiffs’ subsequent motion for leave to reargue or renew their motion for summary judgment on the declaratory judgment cause of action.

The appeal from so much of the order entered December 1, 2010, as denied that branch of the plaintiffs’ motion which was for leave to reargue their motion for summary judgment must be dismissed, as no appeal lies from an order denying reargument (see Schiano v Mijul, Inc., 79 AD3d 726 [2010]; Nicoletti v City of New York, 77 AD3d 715, 716 [2010]; Weiss v Deloitte & Touche, LLP, 63 AD3d 1045, 1047 [2009]).

In its order entered August 13, 2010, the Supreme Court correctly noted that the plaintiffs failed to submit various witnesses’ signature pages or other evidence in support of their motion for summary judgment demonstrating compliance with the requirements of CPLR 3116 (a) (see Marmer v IF USA Express, Inc., 73 AD3d 868, 869 [2010]; Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2008]; compare Moffett v Gerardi, 75 AD3d 496, 498-499 [2010]). However, since the subject signature pages were submitted by the defendants in support of their cross motion for summary judgment, the Supreme Court properly considered the merits of the plaintiffs’ motion.

A client has “an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney” (Campagnola v Mulholland, Minion & Roe, [699]*69976 NY2d 38, 43 [1990]; see Coccia v Liotti, 70 AD3d 747, 757 [2010]). “An attorney who is discharged for cause, however, is not entitled to compensation or a lien” (Callaghan v Callaghan, 48 AD3d 500, 501 [2008]; see Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44; Coccia v Liotti, 70 AD3d at 757). An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to any fees for services rendered (see Quinn v Walsh, 18 AD3d 638 [2005]; Matter of Satin, 265 AD2d 330 [1999]; Yannitelli v Yannitelli & Sons Constr. Corp., 247 AD2d 271, 272 [1998], cert denied sub nom. Heller v Yannitelli, 525 US 1178 [1999]; Pessoni v Rabkin, 220 AD2d 732 [1995]; Matter of Winston, 214 AD2d 677 [1995]). Moreover, even “ ‘[m]isconduct that occurs before an attorney’s discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture’ ” (Coccia v Liotti, 70 AD3d at 757, quoting Orendick v Chiodo, 272 AD2d 901, 902 [2000]). This rule is intended to “ ‘promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential’ ” (Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44, quoting Martin v Camp, 219 NY 170, 176 [1916]). However, a client’s “dissatisfaction with reasonable strategic choices regarding litigation” does not “as a matter of law, constitute cause for the discharge of an attorney” (Callaghan v Callaghan, 48 AD3d at 501; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]). In general, a hearing is required to determine whether a client has cause for discharging an attorney (see Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]; Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 [2008]; Byrne v Leblond, 25 AD3d 640, 642 [2006]; Hawkins v Lenox Hill Hosp., 138 AD2d 572 [1988]).

Here, as to the Finkelstein Firm, Andrew G. Finkelstein, and Thomas C. Yatto, neither the plaintiffs nor the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law with respect to the declaratory judgment cause of action. There are triable issues of fact as to whether these defendants informed the plaintiffs of the settlement offer which exceeded the award after further additur (see Boglia v Greenberg, 63 AD3d 973, 975 [2009]). Likewise, the plaintiffs have not met their prima facie burden pf proving that these defendants, either together or separately, committed errors severe enough to warrant a discharge for cause and a forfeiture of fees (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 600-601 [1999]; Matter of Rudolph, 60 AD3d 685 [2009]; Matter of Weltz, 16 AD3d 428 [2005]; Matter of Graham’s Estate, 63 NYS2d 572, 573-574 [1946]; compare [700]*700Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 63 [2007]). The plaintiffs also rely on so-called “errors” which were, in fact, strategic choices which cannot support a discharge for cause (see Callaghan v Callaghan, 48 AD3d at 501), and rely on arguments which are improperly raised for the first time on appeal (see Whitehead v City of New York, 79 AD3d 858, 861 [2010]; Weber v Jacobs, 289 AD2d 226, 227 [2001]; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561 [1986]). Accordingly, the Supreme Court properly denied those branches of the plaintiffs’ motion and the defendants’ cross motion which were for summary judgment on the declaratory judgment cause of action with respect to the Finkelstein Firm, Andrew G. Finkelstein, and Thomas C. Yatto.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Khidirnazarov v. United Parcel Serv. Gen. Servs. Co. MTLR Corp.
2026 NY Slip Op 50314(U) (New York Supreme Court, Kings County, 2026)
Lee v. Nejat
2025 NY Slip Op 06967 (Appellate Division of the Supreme Court of New York, 2025)
Perez v. City of New York
2025 NY Slip Op 06880 (Appellate Division of the Supreme Court of New York, 2025)
Neeman v. Smith
2024 NY Slip Op 02541 (Appellate Division of the Supreme Court of New York, 2024)
Taylor v. Mercado
2024 NY Slip Op 50048(U) (New York Supreme Court, Kings County, 2024)
Matter of Verdugo v. Schwartz Goldstone & Campisi, LLP
2020 NY Slip Op 3273 (Appellate Division of the Supreme Court of New York, 2020)
Baugher v. Cullen & Dykman, LLP
2019 NY Slip Op 4904 (Appellate Division of the Supreme Court of New York, 2019)
Sessa v. Doxey
2019 NY Slip Op 3644 (Appellate Division of the Supreme Court of New York, 2019)
Saint Annes Dev. Co. v. Batista
2018 NY Slip Op 6956 (Appellate Division of the Supreme Court of New York, 2018)
Analisa Salon, Ltd. v. Elide Properties, LLC
2017 NY Slip Op 6245 (Appellate Division of the Supreme Court of New York, 2017)
Jay Deitz & Assoc. of Nassau County, Ltd. v. Breslow & Walker, LLP
2017 NY Slip Op 5940 (Appellate Division of the Supreme Court of New York, 2017)
Hodzic v. M. Cary, Inc.
2017 NY Slip Op 5206 (Appellate Division of the Supreme Court of New York, 2017)
Wagner Davis P.C. v. Brady
Appellate Terms of the Supreme Court of New York, 2016
Nisanov v. Khulpateea
137 A.D.3d 1091 (Appellate Division of the Supreme Court of New York, 2016)
CPMI, Inc. v. Kolaj
137 A.D.3d 953 (Appellate Division of the Supreme Court of New York, 2016)
Doviak v. Finkelstein & Partners, LLP
137 A.D.3d 843 (Appellate Division of the Supreme Court of New York, 2016)
Doviak v. Lowe's Home Centers, Inc.
134 A.D.3d 1324 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Sacco & Fillas, LLP v. David J. Broderick, P.C.
133 A.D.3d 862 (Appellate Division of the Supreme Court of New York, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
90 A.D.3d 696, 934 N.Y.2d 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doviak-v-finkelstein-partners-llp-nyappdiv-2011.