Zito v. Fischbein, Badillo, Wagner & Harding

Appellate Division of the Supreme Court of New York

Zito v. Fischbein, Badillo, Wagner & Harding

32 A.D.3d 768, 821 N.Y.S.2d 553

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

DecidedSeptember 26, 2006

StatusPublished

Cited by1 cases

This text of 32 A.D.3d 768 (Zito v. Fischbein, Badillo, Wagner & Harding) 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.

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Zito v. Fischbein, Badillo, Wagner & Harding, 32 A.D.3d 768, 821 N.Y.S.2d 553 (N.Y. Ct. App. 2006).

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Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered March 29, 2005, which, to the extent appealed from, granted defendant’s motion insofar as to dismiss plaintiff s claim to recover in quantum meruit and to direct that the parties enter into a confidentiality order prior to using or exchanging payroll documents during discovery, unanimously affirmed, [769]*769without costs. Order, same court and Justice, entered November 16, 2005, which, to the extent appealed from, referred back to the Special Referee plaintiffs challenge to the Special Referee’s ruling closing the deposition of Richard Fischbein, unanimously reversed, on the law, without costs, the reference vacated, and the matter remanded to the motion court for that court’s review and determination of plaintiffs challenge to the Referee’s ruling. Appeal from order, same court and Justice, entered September 26, 2005, unanimously dismissed as untimely, without costs.

Plaintiff attorney’s claim that the services at issue rendered by him to defendant law firm were so distinct from the contractually governed duties of his employment with the firm as to be compensable on a quantum meruit basis is not tenable. Indeed, it is plain that the services in question fell squarely within the contractually contemplated duties of plaintiff’s employment and, accordingly, that plaintiffs claim to recover for those services in quantum meruit was properly dismissed (see Freedman v Pearlman, 271 AD2d 301, 304 [2000]). The motion court properly exercised its discretion in requiring the parties to enter into a confidentiality order before using or exchanging payroll documents during discovery.

Plaintiffs challenge to the Special Referee’s ruling closing the deposition of Richard Fischbein should have been reviewed and determined by the motion court (see CPLR 3104 [d]).

Although the appeal from the order entered September 26, 2005 was not timely taken and is not properly before us, we note that plaintiff, as a highly compensated professional, has no cognizable claim under Labor Law § 198 (see Labor Law § 190 [7]), and in any case, has failed to make the requisite supporting allegation for such a claim of a violation of Labor Law article 6 (see Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 463 [1993]). Concur — Buckley, P.J., Saxe, Williams, Sweeny and Malone, JJ.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered March 29, 2005, which, to the extent appealed from, granted defendant’s motion insofar as to dismiss plaintiff s claim to recover in quantum meruit and to direct that the parties enter into a confidentiality order prior to using or exchanging payroll documents during discovery, unanimously affirmed, [769]*769without costs. Order, same court and Justice, entered November 16, 2005, which, to the extent appealed from, referred back to the Special Referee plaintiffs challenge to the Special Referee’s ruling closing the deposition of Richard Fischbein, unanimously reversed, on the law, without costs, the reference vacated, and the matter remanded to the motion court for that court’s review and determination of plaintiffs challenge to the Referee’s ruling. Appeal from order, same court and Justice, entered September 26, 2005, unanimously dismissed as untimely, without costs.

Plaintiff attorney’s claim that the services at issue rendered by him to defendant law firm were so distinct from the contractually governed duties of his employment with the firm as to be compensable on a quantum meruit basis is not tenable. Indeed, it is plain that the services in question fell squarely within the contractually contemplated duties of plaintiff’s employment and, accordingly, that plaintiffs claim to recover for those services in quantum meruit was properly dismissed (see Freedman v Pearlman, 271 AD2d 301, 304 [2000]). The motion court properly exercised its discretion in requiring the parties to enter into a confidentiality order before using or exchanging payroll documents during discovery.

Plaintiffs challenge to the Special Referee’s ruling closing the deposition of Richard Fischbein should have been reviewed and determined by the motion court (see CPLR 3104 [d]).

Although the appeal from the order entered September 26, 2005 was not timely taken and is not properly before us, we note that plaintiff, as a highly compensated professional, has no cognizable claim under Labor Law § 198 (see Labor Law § 190 [7]), and in any case, has failed to make the requisite supporting allegation for such a claim of a violation of Labor Law article 6 (see Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 463 [1993]). Concur — Buckley, P.J., Saxe, Williams, Sweeny and Malone, JJ.

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32 A.D.3d 768, 821 N.Y.S.2d 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zito-v-fischbein-badillo-wagner-harding-nyappdiv-2006.

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