“Words and actions” can create a retention agreement even if there is no adequate writing. This is one of the holdings in Fricano v Law Offs. of Tisha Adams, LLC 2021 NY Slip Op 03306 Decided on May 26, 2021
Appellate Division, Second Department.
“Here, the defendants failed to eliminate triable issues of fact as to whether their attorney-client relationship with Fricano included litigation of her insurance claim. The undated copy of an alleged retainer agreement between the defendants and Fricano, which is not signed by Adams, submitted in support of the defendants’ motion for summary judgment, failed to establish, prima facie, that the defendants did not undertake to represent Fricano in litigation against Travco (see Terio v Spodek, 63 AD3d at 721). Further, while the defendants met their initial burden of demonstrating that they had no contract or relationship with Lakeside (see Moran v Hurst, 32 AD3d 909, 911), viewing the evidence in the light most favorable to the plaintiffs, the plaintiffs’ submissions in opposition raised a triable issue of fact as to whether Adams’s words and actions created a contract and/or an attorney-client relationship between the defendants and both Fricano and Lakeside (see Biberaj v Acocella, 120 AD3d 1285, 1287; Terio v Spodek, 63 AD3d at 721).
The defendants also failed to establish, as a matter of law, that the plaintiffs could not have prevailed in an action against Travco (see Blumencranz v Botter, 182 AD3d 568, 569; see also 83 Willow, LLC v Apollo, 187 AD3d 563, 564). In support of their motion for summary judgment, the defendants did not submit a complete copy of the insurance policy, nor a copy of the underlying application for insurance coverage, and thus did not prove that Fricano misrepresented herself to Travco such that the plaintiffs would not have succeeded in a litigation disputing Travco’s denial of their claim. Moreover, even if there were no dispute as to whether Fricano made the alleged misrepresentation, the materiality of such alleged misrepresentation typically is a question of fact for the jury (see Liang v Progressive Cas. Ins. Co., 172 AD3d 696, 698; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714).”