Schuster v Miller 2020 NY Slip Op 32291(U) July 13, 2020 Supreme Court, New York County Docket Number: 155658/2019 Judge: Kathryn E. Freed is a strange case that really seems to be about $ 10,000. Plaintiff participated in an attorney fee request in the Matrimonial part and her affidavit there came back to haunt the proceedings in this legal malpractice case.
“As a first cause of action, plaintiff alleged that Miller advised her that she was withdrawing as counsel and recommended that the Levoritz Firm take over. Plaintiff subsequently
retained the Levoritz Firm for her representation. On October 20, 2016, the parties were to attend a conference and motion argument before Justice Grossman. However, plaintiff alleges that the Levoritz Firm resigned without notice. Plaintiff alleges that she would not have consented to the withdrawal of Miller if she was advised that discovery was ongoing and would not be extended by the court. ”
“As her second cause of action, plaintiff alleged that Miller filed a motion to collect fees from a cash bond that was made by plaintiffs ex-husband and deposited with the court. She maintained that Justice Grossman could have awarded $60,000 in fees, the amount deposited in the bond by her ex-husband, but only awarded $50,000 to the Miller Firm. Plaintiff alleged that no attempt was made to collect the remaining fees and that the $10,000 balance from the posted bond was returned to ex-her husband. Plaintiff requested a return of the retainer fee and the fees paid by her ex-husband’s spouse. ”
“As a third cause of action, plaintiff alleged that defendants were negligent because their withdrawal as the attorney of record resulted in a diminished settlement amount. She claimed that defendants’ request for $50,000, instead of asking for the entire fee claimed, ignored her financial needs….”
“Plaintiff alleges that the Miller Firm was negligent by failing to obtain the full $60,000 in legal fees which was posted in a bond by her ex-husband during the course of the matrimonial action. Plaintiff claims that, although the Miller Firm obtained $50,000, it made no effort to collect the remaining $10,000. In support of their motion to dismiss, defendants contend that, on or about October 27, 2016, two months after the Miller Firm was substituted out of the case and ceased to represent plaintiff, it submitted an Order to Show Cause for court
approval of its fees relating to its representation of plaintiff in the matrimonial underlying action. Defendants argue that, in that application, the Miller Firm requested that the court vacate a prior stay of the fee award and direct payment to them in the amount of $50,000.
Defendants maintain that, in November of 2016, plaintiff submitted an affidavit in support of the fee application wherein she authorized, consented to, and requested that an award of $50,000 of counsel fees be paid directly to the Miller Firm. Plaintiff stated:
“3. I acknowledge that as of today’s date, I owe MZWS [the Miller Firm] approximately $84,440.04 in legal fees and disbursements. 4. I hereby join in the request of MZWS to vacate the bond and authorize, consent and request that the counsel fee award of $50,000 under the Amended Decision and Order dated September 14, 2016 be ordered to be paid directly to MZWS.” Doc. 29.
Defendants contend that, on December 22, 2016, Justice Grossman approved the Miller Firm’s fee application and awarded the Miller Firm $50,000 in counsel fees despite opposition to the same by plaintiffs ex-spouse. Here, plaintiff supported and consented to the Miller Firm’s fee application of $50,000 by submitting an affidavit. At the time plaintiff signed the affidavit, the Miller Firm no longer represented her as counsel. Plaintiff was aware that the total amount of legal fees which she owed to the Miller Firm was $84,440.04. Since the
Miller Firm no longer represented plaintiff at the time the counsel fees application was made, and because plaintiff consented to the amount of counsel fees, that branch of plaintiffs complaint seeking the return of all of the fees she paid to the Miller Firm is without merit. “