ROBERT J.A. ZITO, Plaintiffres-ap, v. FISCHBEIN BADILLO WAGNER HARDING def

10919N. ROBERT J.A. ZITO, Plaintiffres-ap, v. FISCHBEIN BADILLO WAGNER HARDING def — NIMKOFF ROSENFELD & SCHECHTER, LLP, Nonparty Appellant-res — Nimkoff Rosenfeld & Schechter, LLP, Syosset (Ronald A. Nimkoff of counsel), for appellant-res — Carter Ledyard & Milburn LLP, New York (Gary D. Sesser of counsel), for res-res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 8, 2012, which denied nonparty Nimkoff Rosenfeld & Schechter, LLP's motion to modify and confirm a special referee's report, and granted so much of plaintiff's motion as sought to reject the report, unanimously affirmed, with costs.

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10919N. ROBERT J.A. ZITO, Plaintiffres-ap, v. FISCHBEIN BADILLO WAGNER HARDING def — NIMKOFF ROSENFELD & SCHECHTER, LLP, Nonparty Appellant-res — Nimkoff Rosenfeld & Schechter, LLP, Syosset (Ronald A. Nimkoff of counsel), for appellant-res — Carter Ledyard & Milburn LLP, New York (Gary D. Sesser of counsel), for res-res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 8, 2012, which denied nonparty Nimkoff Rosenfeld & Schechter, LLP’s motion to modify and confirm a special referee’s report, and granted so much of plaintiff’s motion as sought to reject the report, unanimously affirmed, with costs.

The motion court correctly rejected the special referee’s report and recommendation on the ground that the referee failed to hear evidence as to whether Nimkoff received a settlement offer in the underlying action and failed to communicate it to plaintiff. Plaintiff submitted an affirmation by counsel for defendant Fischbein Badillo Wagner Harding stating that he personally had conveyed an offer of $225,000 to $250,000 to Nimkoff in January 2007. Plaintiff testified that he first learned of the offer in late 2010. However, the referee declined to take the testimony of the attorney. If proven, the failure to communicate a settlement offer would constitute a violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.4(a)(3) (“A lawyer shall … keep the client reasonably informed about the status of the matter),” and could bar Nimkoff’s claim to fees, at least from February 2007 onward (see Doviak v. Finkelstein & Partners, LLP, 90 AD3d 696, 699 [2d Dept 2011]; see also Yannitelli v. Yannitelli & Sons Constr. Corp., 247 AD2d 271 [1st Dept 1998], lv denied 92 NY2d 875 [1998]). Moreover, there is evidence that plaintiff ultimately accepted an offer of $265,000 (see Boglia v. Greenberg, 63 AD3d 973, 975 [2d Dept 2009]).

ROBERT J.A. ZITO, Plaintiffres-ap, v. FISCHBEIN BADILLO WAGNER HARDING def

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