Amid v Del Col 2024 NY Slip Op 00178 Decided on January 17, 2024 Appellate Division, Second Department is a common story. Plaintiff alleges that he hired the attorney, the attorney did little or no work, discontinued certain causes of action without consent and paid himself from the retainer fees without good cause or permission. What is unusual is a cause of action for conversion of the retainer funds.

“In September 2012, the plaintiff entered into a retainer agreement with the defendant Robert Del Col and his law firm to represent the plaintiff in a series of legal actions she had commenced, including a federal court case and two state court cases. At some point after the retainer agreement was executed, Del Col allegedly “promised” to represent the plaintiff in an action entitled Airmix Long Island, Inc. v Amid. Thereafter, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice, alleging that the defendants performed little or no work on her cases, withdrew several claims without her permission, and failed to return any unearned portion of the retainer fee. The defendants moved for summary judgment dismissing the second amended complaint. In an order dated September 23, 2019, the Supreme Court denied the motion. The defendants appeal.”

“The Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the first cause of action, alleging legal malpractice. With respect to the state court cases, the defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldamn & Spitzer, P.A., 197 AD3d 544, 545; Fricano v Law Offs. of Tisha Adams, 194 AD3d 1016, 1018).

With respect to the federal court case, the defendants established, prima facie, that the plaintiff would not have prevailed on her 42 USC § 1983 claim regardless of whether the defendants consented to the discontinuance of that claim. However, in opposition, the plaintiff raised a triable issue of fact (see Hall v Schrader, Israely, DeLuca & Waters, LLP, 147 AD3d 1421, 1422). And, with respect to the Airmax case, the defendants failed to demonstrate, prima facie, that there was no attorney-client relationship between them and the plaintiff (see Edelman v Berman, 195 AD3d 995, 997).

The Supreme Court also properly denied that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action, alleging conversion of a portion of the retainer fee. “To establish a cause of action to recover damages for conversion, a plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s rights” (RD Legal Funding Partners, LP v Worby Groner Edelman & Napoli Bern, LLP, 195 AD3d 968, 970 [internal quotation marks omitted]; see Vigilant Ins. Co. of Am. v Housing Auth. of the City of El Paso, Tex., 87 NY2d 36, 44; C & B Enters. USA, LLC v Koegel, 136 AD3d 957, 958). A claim of conversion of money is proper “when funds designated for a particular purpose are used for an unauthorized purpose” (East Schodack Fire Co., Inc. v Milkewicz, 140 AD3d 1255, 1256 [internal quotation marks omitted]). Here, the defendants failed to establish, prima facie, that all fees taken by them were in accordance with the retainer agreement.”