Touton v. Touton

Appellate Division of the Supreme Court of New York

Touton v. Touton

71 A.D.3d 443, 894 N.Y.S.2d 870

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 4, 2010

StatusPublished

This text of 71 A.D.3d 443 (Touton v. Touton) 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

Touton v. Touton, 71 A.D.3d 443, 894 N.Y.S.2d 870 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (Laura E. Drager, J.), entered July 22, 2009, which, insofar as appealed from, denied plaintiffs cross motion to discharge her attorneys for cause and require disgorgement of fees, unanimously affirmed, with costs.

The motion court correctly found that there was no conflict of interest during the period that plaintiffs attorneys had performed their services, since it was uncontradicted that they were unaware of plaintiffs connection with another action in which the firm subsequently appeared, and, absent any specific information or other reason for doing so, the firm had no duty to inquire about the possibility of any such connection. In any event, even if the firm’s appearance in the other action were a conflict of interest, forfeiture of fees would not be warranted (see Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370 [2007], lv denied 10 NY3d 702 [2008]; Decolator, Cohen & DiPrisco v Lysaght, Lysaght & Kramer, 304 AD2d 86, 91 [2003]). In view of the foregoing, it is unnecessary to address plaintiffs other contentions. Concur— Andrias, J.P., Nardelli, Catterson, DeGrasse and Manzanet-Daniels, JJ.

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Order, Supreme Court, New York County (Laura E. Drager, J.), entered July 22, 2009, which, insofar as appealed from, denied plaintiffs cross motion to discharge her attorneys for cause and require disgorgement of fees, unanimously affirmed, with costs.

The motion court correctly found that there was no conflict of interest during the period that plaintiffs attorneys had performed their services, since it was uncontradicted that they were unaware of plaintiffs connection with another action in which the firm subsequently appeared, and, absent any specific information or other reason for doing so, the firm had no duty to inquire about the possibility of any such connection. In any event, even if the firm’s appearance in the other action were a conflict of interest, forfeiture of fees would not be warranted (see Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370 [2007], lv denied 10 NY3d 702 [2008]; Decolator, Cohen & DiPrisco v Lysaght, Lysaght & Kramer, 304 AD2d 86, 91 [2003]). In view of the foregoing, it is unnecessary to address plaintiffs other contentions. Concur— Andrias, J.P., Nardelli, Catterson, DeGrasse and Manzanet-Daniels, JJ.

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Bluebook (online)

71 A.D.3d 443, 894 N.Y.S.2d 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touton-v-touton-nyappdiv-2010.

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