Rosenbaum v Myers, 2022 NY Slip Op 33975(U) November 18, 2022 Supreme Court, New York County Docket Number: Index No. 652971/2019 Judge: Lucy Billings is a most unusual story. Attorney and divorce client meet, successfully obtain the divorce, fashion the attorney fee payment based upon investment advice given by the attorney to the client, purchase a Lennox Avenue property and live together for years. The attorney is supposed to get a percentage of the sale price of the property, but, alas, is not paid.
“The parties lived together from approximately 2007 to 2019. Before then, defendant was married to non-party William Kaczmarek. Defendant and Kaczmarek litigated a divorce action between 2002 and 2006, when their divorce was finalized. According to the complaint in this action, during the divorce action, “Plaintiff provided advice to Defendant, appeared on Defendant’s behalf in the divorce proceeding, assisted in negotiating the settlement, and helped obtain the favorable resolution of the proceeding.”
“Plaintiff also helped defendant deal with the acquisition and development of residential property at 202 Lenox Avenue, New York County, an asset at issue in the divorce action. · Id. ii 14-15. Defendant did not pay plaintiff for his legal services, but she later signed a document titled “Acknowledgment of Debt” dated February 7, 2005, which, on its face, acknowled~~s a debt defendant owed to plaintiff for legal advice and services he previously provided equal to 25% of the net profit from the potential future sale 0£ the Lenox Avenue propeity. Aff. of Benjamin Allee Ex. 1, NYSCEF Doc. 85. The document describes the debt as owed for plaintiff’s “extensive representation and advice in all legal proceedings and negotiations with various parties, the City of New York, and the financing and development of the property.” Id. This advice and representation dated back to at least June 7, 2004, when plaintiff alleges that he advised defendant to consider obtaining the Lenox Avenue property in her divorce settlement and dealt with the City of New York and Astoria Bank to help her acquire the property, obtain a mortgage, and develop the property. The only legal proceedings were in the divorce action. In February 2016 defendant sold the property and did not pay plaintiff. ”
“After the parties’ romantic relationship ended in 2019, plaintiff sued on a single breach of contract claim to enforce the Acknowledgment of Debt .. Defendant counterclaimed for
plaintiff’s legal malpractice in his representation of her during her divorce action and for intentional infliction of emotional distress, alleging domestic violence and physical and verbal
abuse between January 13 and February 12, 2019. ”
“To establish breach of a contract, plaintiff must demonstrate a contract that plaintiff performed and that defendant breached and damages from defendant’s breach. Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc., 195 A.D.3d 436, 436 (1st Dep’t 2021). For a contract, plaintiff points to the Acknowledgment of Debt, which describes plaintiff’s consideration
as prior legal services. Allee Aff. Ex. 1. It is undisputed that plaintiff provided legal services to defendant and that defendant has not paid to plaintiff her consideration: 25% of
the net profit from the sale of the property described in the Acknowledgment of Debt. Therefore plaintiff has made a prima facie showing of d~fendant’s breach of· that 6ontract, shifting the burden to defendant to demonstrate the absence of at least one of the elements of the breach of contract claim . ”
“If this consideration, legal representation and counsel in defendant’s divorce action, were prospective consideration for a promised 25% of the net profits from the sale of the Lenox Avenue property, that consideration would be unenforceable. It is undisputed that plaintiff did not abide by the rules governing attorneys’ representation of clients in matrimonial actions, which require a written retainer agreement. 22 N.Y.C.R.R. § 1400.3; Rosenbaum v. Myers, 191 A.D.3d 445, 446 (1st Dep’t 2021).
An attorney’s failure to abide by the rules in matrimonial actions bars the attorney’s recovery of fees, invalidating the Acknowledgment of Debt. Law Off. of Sheldon Eisenberger v.
Blisko, 106 A.D.3d 650, 652 (1st Dep’t 2013); Edelman v. Poster, 72 A.D.3d 182, 184 (1st Dep’t 2010); Julien v. Machson, 245 A.D.2d 122, 122 (1st Dep’t 1997); Grecco v. Grecco, 161
A.D.3d 950, 951 (2d Dep’t 2018) (collecting decisions). Plaintiff insists that 22 N.Y.C.R.R. Part 1400’s client protective requirements do not apply to him, as 22 N.Y.C.R.R. §
1400.1 excepts attorneys who are not being paid by their client from those requirements. If plaintiff is not to be paid by his client, however, his legal services are not consideration for the purpose of validating the purported contract. On the other hand, were plaintiff’s legal services prospective consideration in the contract, the exception in 22 N.Y.C.R.R. § 1400.1 would not apply, and the contract would be unenforceable. Adjmi v. Tawil, 180 A.D.3d 435, 436 (1st Dep’t 2020); Law Off. of Sheldon Eisenberger v. Blisko, 106 A.D.3d at 651; Edelman v. Poster, 72 A.D.3d at 184. Plaintiff may not circumvent important measures for the protection of clients in matrimonial actions through the cunning use of a contract after the fact, having claimed his services were pro bono only when convenient. “