RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS MOTION TO REARGUE. PAPERS NUMBERED Motion and Annexed Affidavits 1 Affirmation in Opposition 2 Reply Affirmation 3 DECISION/ORDER Plaintiff’s (Lopez) incoming attorney, Rosenberg and Rodriguez, PLLC (Rosenberg), moves to reargue this Court’s decision, dated November 21, 2019, which granted outgoing attorney, Rimland & Associates (Rimland) 5 percent of Rosenberg’s legal fees based upon Lopez’s settlement award resulting from a motor vehicle accident. Rosenberg contends this Court misinterpreted or overlooked the law and should have held a hearing to determine whether Rimland was fired for cause before determining Rimland was entitled to a legal fee. Rosenberg further requests, if this Court grants the motion to reargue, and after a hearing determines Rimland was not discharged for cause, it award Rimland no more than 1 percent of Rosenberg’s fee. PROCEDURAL HISTORY Rosenberg moved this Court by Order to Show Cause, May 9, 2019, requesting this Court to determine whether Rimland was terminated for cause and/or in the alternative determine the value of Rimland’s legal services rendered. FACTS Rosenberg and Rimland were involved in a fee dispute since January 2019, when Rimland learned Rosenberg settled Lopez’s personal injury claim and demanded payment of its legal fee. The underlying litigation involves Lopez’s injury sustained in an automobile accident on October 9, 2013, which settled in November 2018. Lopez retained Rimland on October 16, 2013 on a contingent fee basis. By letter dated, January 10, 2014, Lopez discharged Rimland and the termination letter does not mention any causation. On January 10, 2014, Plaintiff executed a retainer agreement with Rosenberg (signed by partner Mr. Rodriguez) and on the same day Mr. Rodriguez sent Mr. Edward Rimland a consent to change attorney request which Mr. Edward Rimland signed and returned on January 15, 2014. At the time of the attorney substitution, both attorneys stipulated on behalf of their firms that in the event of their dispute upon a fee to be paid to Rimland, they both consent to the Court’s jurisdiction to determine Rimland’s fee for legal services rendered. In a letter dated January 16, 2014, from attorney Rodriguez to attorney Rimland, Rodriguez acknowledges returning and executing the stipulation. The stipulation states, in paragraph 1, “the incoming attorney shall promptly advise the outgoing attorney of a settlement or other disposition of this matter before any distribution of funds is made.” Paragraph 2 states “that if the apportionment of fees between Rosenberg & Rodriguez, PLLC and Rimland & Associates cannot be agreed upon at the conclusion of the matter then the Court shall make the final determination.” Rimland sent letters and files to Rosenberg including a DMV insurance search; cover letter with a no fault application; a representation letter sent to New Hampshire Ins. Co; an invoice from J & J investigation; letter to no fault with medical bills; a request for medical record; letters from AIG and an application and executed contract between Plaintiff and 5 Star Legal Funding LLC evidencing the outgoing attorney secured a loan on behalf of Plaintiff. ANALYSIS The thrust of Rosenberg’s motion is that this Court erroneously awarded Rimland 5 percent ($4,537.50) of Rosenberg’s legal fees of $90,750, without a hearing to determine whether Lopez fired Rimland for cause and this Court denied Rodriguez an opportunity to examine his client and witnesses at a hearing before the Court on September 4, 2019. REARGUMENT STANDARDS Motions to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). A hearing on cause is not required where the attorneys stipulated to a legal fee to be determined by the Court if they could not agree on the fee to be paid the outgoing attorney. “Stipulations of settlement are favored by the courts and will not be set aside in the absence of fraud or overreaching” (Galasso v. Galasso, 35 NY2d 319, 321, 361 NYS2d 871 [1974]). Mr. Rodriguez, in both his Order to Show Cause and motion to reargue, submitted a fully executed stipulation dated January 15, 2014, whereby Mr. Rodriguez and Mr. Rimland, on behalf of their respective firms, stipulated that if they could not successfully apportion the legal fees between themselves after the conclusion of the matter, “then the Court shall make the final determination” (see Movant’s Exhibit 1 stipulation buried in the back of numerous unmarked papers). Additionally, the attorneys’ acknowledgments in various correspondence between themselves, as well as the stipulation indicates that they agreed to follow the longstanding rule, to wit, that if an attorney who was discharged without cause was retained on a fee contingency basis, then the determination of the method of payment is left to the out-going attorney, and if no determination is made at the time of discharge, it will be presumed that a contingent fee is chosen (Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655, 602 NYS2d 788 [1993]). Rodriguez has not requested this Court at any time to deem the stipulation unenforceable, and this Court did not find any reason to disturb the parties’ arrangements. Galasso v. Galasso, supra. Moreover, but for the signed stipulation, this Court would not be obligated to hold a hearing unless the clamaint demonstrated that the outgoing attorney was discharged for cause, substantiating claims of attorney negligence or misconduct. The client must set forth specifics, and not that the client is merely dissatisfied with the legal services rendered. Plaintiff’s incoming attorney claim five years later that Lopez was not happy with Rimland’s legal services because Rimland did not file lost wage claims promptly, is general and without more does not require this Court to entertain a hearing on whether Rimland was terminated for cause (Maher v. Quality Bus Serv., LLC, 144 AD3d 990, 992, 42 NYS3d 43 [2d Dept 2016]). Mr. Rodriguez’s affirmation is misleading in seeking a hearing, as it did not inform the Court that the attorneys had consented to the Court’s resolution of their fee dispute. Mr. Rodriguez’s affirmation also failed to note in his letter dated January 14, 2019, five years after Mr. Rodriguez himself executed the stipulation, is the first time that Rimland’s legal services were claimed negligent or negligible and that this claim was made without his client’s affidavit (see Movant’s Exhibit 1). In fact, Mr. Rodriguez’s first mention of firing for cause is in his letter to Rimland, dated January 14, 2019, which states “that it is our position, that given that it appears that your firm did not perform any substantive legal work and did not commence an action on Mr. Lopez’s behalf your firm is not entitled to a charging lien pursuant to Judiciary Law §475.” Mr. Rodriguez offered Mr. Rimland $1,000 to settle the matter for what he deemed no more than two hours of paralegal work. Shortly thereafter, in a letter dated February 27, 2019, Mr. Rodriguez rejected Mr. Rimland’s offer to settle the dispute at 15 percent of the attorney fees ($13,174) and Mr. Rodriguez countered with a final settlement offer of 2.5 percent ($2,195.70). Mr. Lopez’s first statement of dissatisfaction of Rimland’s legal service was included in an affidavit interpreted from Spanish to English in April 2019 in support of Rosenberg’s Order to Show Cause. The Court also notes that Rosenberg subpoenaed Lopez to appear at the hearing on September 4, 2019. Again, in Mr. Lopez termination letter to Rimland, dated January 10, 2014, there is no mention of causation and he stated, “You are hereby requested to IMMEDIATELY STOP ALL WORK on file, except to make the file available to my new attorneys.” Based upon the parties’ submissions and arguments it is apparent that this is a fee dispute between attorneys and not an issue of cause in discharging Rimland. In the stipulation, it clearly states the attorneys would apportion their fees at the conclusion of the matter and in their dispute the Court would have final determination of the amount of legal fees due Rimland. In five years of litigation and after settlement of the action, Mr. Lopez never raised the issue of any negligent legal services Rimland rendered; Mr. Lopez only raised the issue in an affidavit to support Rosenberg’s motion to pay, if any, a negligible legal fee to Rimland. A client may discharge its attorney any time with or without cause. Where the fee dispute is between attorneys “the outgoing attorney may elect to take compensation as a fixed dollar amount based upon quantum meruit for the reasonable value of services or a contingent percentage fee based on the proportionate share of the work performed on the whole case” (Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 539 NE2d 570 [2d Dept 1989]). Nonetheless, a hearing was not required since Rosenberg and Rimland stipulated to allow the Court to settle apportionment of their legal fees. Verbatim the stipulation states, “that if the apportionment of fees between Rosenberg & Rodriguez, PLLC and Rimland & Associates cannot be agreed upon at the conclusion of the matter then the Court shall make the final determination.” As Mr. Rodriguez correctly noted, the Court ordered the hearing to obtain further clarification of Rosenberg’s OSC and to determine whether Mr. Lopez, who required an interpreter, understood the basis of the OSC and not to determine whether Rimland was fired for cause. Although the Court need not examine whether a hearing was required since stipulations are held enforceable and Rodriguez did not argue against the stipulation or even raise it in his papers, the Court notes Rodriguez never proffered a prima facie case setting forth entitlement to a hearing. Galasso v. Galasso; Maher v. Quality Bus Serv, supra. The attorney’s stipulation along with the parties’ submissions in support and opposition of the OSC supports this Court’s conclusion that Rimland was not discharged for cause or misconduct leaving the Court to determine the legal fee to be paid to Rimland. This Court is the final arbiter of the attorney’s fee dispute as both attorneys voluntarily stipulated thereto. This Court deemed both Rimland’s fee demand of 15 percent and Rodriguez 2.5 percent unreasonable based upon review of Rimland’s legal services rendered. This Court deemed 5 percent contingency fee of Rosenberg’s fee award of $90,750 to Rimland fair and reasonable. Accordingly, Rosenberg’s motion to reargue this Court’s decision dated November 21, 2019, is denied in the entirety, as this Court has not misapprehended facts or overlooked any law. Dated: November 2, 2020
