Attorney referrs case to malpractice firm, then after a while, dies. Widow asks for referral fee on the $ 875,000 settlement. Held: she collects, even when the firm welshes.
Reich v Wolf & Fuhrman, P.C.
2007 NY Slip Op 00623
Decided on January 30, 2007
Appellate Division, Second Department
"In September of 1998, Nelson Cardona retained the defendant law firm, Wolf & Fuhrman (the predecessor to the defendant Wolf & Fuhrman, P.C.), for the purpose of commencing a personal injury action on his behalf. Cardona had been referred to Wolf & Fuhrman by the decedent, Arthur Reich, an attorney who was not associated with Wolf & Fuhrman in any manner. Wolf & Fuhrman, as attorneys of record, subsequently commenced a personal injury action on Cardona’s behalf, which, after four years of litigation, was settled for the sum of $825,000. Thereafter, Phyllis Reich, as the Executrix of the Estate of Arthur Reich, commenced the instant breach of contract action seeking to enforce a fee-sharing agreement that had been entered into between the decedent and Wolf & Fuhrman in November 1998.
The Supreme Court granted the plaintiff’s motion for summary judgment, denied the defendants’ cross motion for summary judgment dismissing the complaint, and awarded the plaintiff the sum of $89,777. A judgment thereafter was entered in accordance with the order. "
he defendants subsequently moved, inter alia, to vacate the order and the judgment on the ground that the Preliminary Letters Testamentary issued to Phyllis Reich as Executrix had expired as of the time the motion and cross motion for summary judgment were made and decided. The Supreme Court denied the motion, finding that the defendants had waived this objection by failing to raise it in opposition to the plaintiff’s motion for summary judgment, and that new Letters Testamentary had since been issued to Phyllis Reich, thereby curing any lapse in her capacity to pursue the action.
In fee-sharing disputes between attorneys, "the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either refused to contribute more substantially" (Benjamin v Koeppel, 85 NY2d 549, 556). This court has held that such an agreement is enforceable so long as the attorney who seeks his share of the fee "has contributed some work, labor or service toward the earning of the fee" (Witt v Cohen, 192 AD2d 528, 529 [internal quotation marks and citation omitted]; Rozales v Pegalis & Wachsman, 127 AD2d 577, 578). Here, the Supreme Court correctly determined, based upon the evidence presented, that the plaintiff’s decedent contributed some work, labor, or service toward the earning of the fee. Thus, the plaintiff was entitled to the decedent’s share of the fee as allocated in the agreement (see Edelstein v Pirrotti, 286 AD2d 660; Sickmen v Birzon, Szczepanowski & Quinn, 276 AD2d 689).
Contrary to the defendants’ contentions, the Supreme Court properly denied their motion to vacate the order and the judgment on the ground that Phyllis Reich lacked the legal capacity to pursue the litigation