The question of identity and partnership lead to a question of deceit. If an attorney is a partner may he release a client. If he is not a partner is it a violation of Judiciary Law § 487 to give the release? For now, the question remains in limbo.
Michael J. Devereaux & Assoc., P.C. v Tufo 2020 NY Slip Op 30020(U) January 6, 2020 Supreme Court, New York County Docket Number: 150497/14 Judge: Tanya R. Kennedy denies summary judgment to plaintiff. Litigation continues and will answer these questions.
“In Motion Sequence Number 007, plaintiff, Michael J. Devereaux & Associates, P.C. (“plaintiff law firm”), moves for an order: ( 1) granting a charging lien against a settlement amount of $6,598,453.20, pursuant to Judiciary Law §475; (2) directing defendants John Tufo (“John”) and Janice Tufo (“Janice”), (collectively, the “Tufos”), to escrow unpaid attorneys’ fees and expenses of $813,561.63, by paying that amount into Supreme Court or depositing such amount into an independent separate interest bearing account with the bank sending monthly statements to plaintiff law firm; and (3) imposing a lis pendens against properties the Tufos own to enforce the charging lien.
In Motion Sequence Number 008, plaintiff law firm moves, pursuant to CPLR 3212, for summary judgment on its first, second, third, and fifth causes of action for failing to pay invoices for attorneys’ fees and expenses in the sum of $557,412.59, and on its sixth cause of action for
quantum meruit; summary judgment declaring null and void a General Release, dated September 9, 2013; summary judgment on its causes of action for violation of Judiciary Law §487 and to recover attorneys’ fees, costs, and disbursements; as well as for summary judgment dismissing the counterclaims which defendant Sidney Baumgarten (“Baumgarten”) interposed to recover attorneys’ fees for services rendered while associated with plaintiff law firm.
In addition, plaintiff law firm seeks to strike the pleadings of defendants, the Tufos, John Russell (“Russell”), as notary and attorney, and Baumgarten, individually and as attorney, (collectively, the “Defendants”), or to preclude Defendants from introducing certain evidence; and to impose sanctions against Defendants.”
From July 30, 2009 to October 15, 2014, plaintiff iaw firm assumed the name Devereaux, Baumgarten (see Certificates, NYSCEF Doc. Nos. 421-422, 452-453). Plaintiff law firm also assumed the name Devereaux Law Group, effective March 7, 2014 (see Certificates, NYSCEF Doc. Nos. 423, 454). Michael Devereaux (“Devereaux”) is the sole owner and principal of plaintiff law firm (see Devereaux Affidavit, ~l, NYSCEF Doc. No. 450).
The parties disagree as to the business relationship between Devereaux and Baumgarten. Devereaux claims that Baumgarten was a tep.ant in plaintiff law firm’s office and that Baumgarten vacated the office after their professional relationship deteriorated (id., ~2; see Email, NYSCEF Doc. No. 426).”
“However, Baumgarten maintains that he joined plaintiff law firm as a non-equity partner, agreeing to share the fees he received from his practice with Devereaux (see Baumgarten Affidavit, if5, NYSCEF Doc. No. 562). Baumgarten maintains that the letterhead of plaintiffs law firm listed him as a partner in May 2010 (id), and that Devereaux testified at his EBT that he may have represented that Baumgarten was a non-equity partner in plaintiff law firm (see Devereaux EBT,
P. 76, L. 23-25 – P. 77, L. 4, NYSCEF Doc. No. 602). ”
“On September 9, 2013, Baumgarten, as Partner of Devereaux, Baumgarten, executed a General Release, in consideration of the sum of $285,260.00 received from the Tufos, discharging the Tufos from all debts, “specifically [including] all legal services, any and all bills, statements . and invoices pertaining to the litigation between John and Westchester Automobile Co, Inc. (Acura of Westchester) et al, and all related litigation in the Supreme Court, New York County under
index numbers 110604/11, 650247/12, 650471/12 and 651100/12″ (see NYSCEF Doc. No. 23). Russell notarized the General Release, acknowledging Baumgarten’s signature (id). ”
“After reviewing the evidence presented, the Court concludes that the existence of two retainer agreements for the same legal services raises an issue of fact with respect to the parties’ intent, barring summary judgment on the claim for breach of the retainer agreement. Thus, the
branch of the motion for summary judgment on the breach of contract claim is denied. ”
“The triable issues of fact regarding Baumgarten’s authority to execute the General Release precludes summary judgment as to the validity of the General Release, or a claim for violation of Judiciary Law §487. ”