Greenberg v. Walsh

279 A.D.2d 338, 718 N.Y.S.2d 847, 2001 N.Y. App. Div. LEXIS 465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Beverly Cohen, J.), entered June 15, 1999, which granted defendant-respondent’s motion to vacate the default judgment entered against him upon his failure to appear at a compliance conference, upon condition that he pay plaintiff $300, unanimously affirmed, without costs.

Plaintiff seeks to recover a legal fee against defendant-respondent, a pro se litigant, owed as a result of plaintiffs representation of the codefendant in other litigation between the two defendants. Plaintiff alleges that defendants collusively settled the other litigation in order to deprive him of his fee. This claim is at odds with the principle that a client may discharge an attorney at any time with or without cause (see, Matter of Cohen v Grainger, 81 NY2d 655, 658), and is unsupported by any evidence that respondent threatened the codefendant or used other unlawful means to induce her termination of plaintiffs retainer (compare, Lurie v New Amsterdam Cas. Co., 270 NY 379). Indeed, all that appears is that defendants are husband and wife who have reconciled. Considering all the circumstances including the absence of prejudice (see, Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23-24), and the strong policy preference for resolving cases on the merits, vacatur of the default was a proper exercise of discretion. Concur — Nardelli, J. P., Williams, Tom, Wallach and Friedman, JJ.