Perez v. Perez

154 A.D.2d 359, 545 N.Y.S.2d 836, 1989 N.Y. App. Div. LEXIS 12286

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1989
• Status: Published

Opinion

— In an action for a divorce and ancillary relief, Leonard H. Moche appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered January 28, 1988, which set the amount of his counsel fees at $37,195.07.

Ordered that the order is affirmed, with costs.

In September 1984 the nonparty appellant, an attorney, was engaged by the defendant-respondent to represent him in the instant action for a divorce and ancillary relief. The appellant charged $175 an hour for his time and $25 an hour for his paralegal’s time. In December 1986 the appellant was discharged by the defendant-respondent, not for cause. Between the time he was hired and the time he was discharged the appellant submitted 19 invoices to the defendant-respondent, charging a total of $65,356.94 for some 374 hours of his own time and 2914 hours of his paralegal’s time. The defendant-respondent had paid $37,195.07. When the defendant-respondent failed to execute a confession of judgment for the remaining amount of $28,161.87, the appellant asserted his common-law retaining lien on the file in his possession.

The Supreme Court properly rejected the appellant’s claim that there was an account stated between him and the defendant-respondent (see, Rodkinson v Haecker, 248 NY 480, 485). In the absence of an account stated the appellant was properly awarded the fair and reasonable value of his services under a quantum meruit theory (see, Matter of Montgomery, 272 NY 323, 326; see also, Jacobson v Sassower, 66 NY2d 991, 993; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553). Mollen, P. J., Thompson, Kunzeman and Spatt, JJ., concur.