Alterman & Boop LLP v Emamian 2025 NY Slip Op 32118(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 650345/2024 Judge: Nicholas W. Moyne presents an unusual but not unprecedented situation where withdrawing attorneys obtained a decision on their fees. In this employment discrimination case setting, attorney fees were due from the employer and the law firms now seek their share. Plaintiff attempts to allege legal malpractice and other equitable defenses.

“This action arises from the plaintiffs’ representation of Effat Emamian (“Emamian”) in her Federal District Court employment discrimination action against her former employer, Rockefeller University (the “Rockefeller action”). Plaintiffs were Emamian’s second set of counsel in the Rockefeller action, and they withdrew as counsel on April 21, 2016, prior to trial. The Rockefeller action eventually went to trial with successor counsel, Emamian was awarded $250,000 in back pay and $2,000,000 in pain and suffering, although the latter award was remitted by the Court to $200,000. Additionally, the District Court awarded Emamian attorneys’ fees, which were paid by
the defendant in the Rockefeller action. Plaintiffs in the instant action seek to obtain that portion of the attorneys’ fees awarded in the Rockefeller action which were allocated to them.

Emamian opposes the motion. Her counterclaims allege legal malpractice, breach of fiduciary duty, and breach of contract. Essentially, the defendant’s counterclaims and majority of her affirmative defenses revolve around her claims that the plaintiffs withdrew from representation in violation of the retainer agreement, would not deduct the expenses paid by Emamian from the attorneys’ fees they sought, and failed to turn over the entire case file to successor counsel.

In the Rockefeller action, the District Court granted, in part, Emamian’s post-trial motion for pre and post judgment interest, attorneys’ fees and costs to be paid by the defendant in that action. The total attorneys’ fee award was $960,570. Of this, $150,700 was attributable to the Alterman Firm, and $48,800 to Dowd. The decision also awarded costs, of which $49,969.83 were attributed to Alterman and Dowd, and $18,610 were attributed to Emamian herself. This decision took into consideration the fact that Alterman and Dowd withdrew from representation before trial took place, reducing the Alterman Firm’s hours by 60% and the Dowd Firm’s hours by 75%. In particular, District Court Judge Paul G. Gardephe adopted the recommendation of the Magistrate Judge, who opined that “with respect to the Dowd Firm, an even greater reduction of its hours than of the Alterman Firm’s hours is required, because Dowd “was not an employment law expert, but was brought in to be a part of the trial and offer his experience in trying cases. Because Dowd withdrew before the trial took place, he never performed the task he was brought in to do” (Exh. M, Memorandum Opinion & Order, p. 43, NYSCEF Doc. No. 24).”

‘The defendant did not assert her counterclaims until after the applicable statutes of limitations had run. The defendant’s counterclaims accrued when the plaintiffs withdrew as counsel in the Rockefeller action on or about April 21, 2016. The defendant did not file her answer containing the counterclaims until April 10, 2024, just
shy of eight years after her claims accrued. The longest statute of limitations which could possibly apply to Emamian’s counterclaims is the six-year statute of limitations for breach of contract (see CPLR § 213[1][six year statute of limitations for which no limitation is specifically prescribed by law], CPLR § 213[2] [six year statute of limitations for contractual obligation or liability], CPLR § 214[6] [three year statute of limitations for malpractice]). Accordingly, the counter claims were brought after the applicable statute of limitations had run. However, to the extent that any of the counterclaims are viable, they may be available to offset any recovery by the plaintiffs. “Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield
for recoupment purposes, and does not permit the defendant to obtain affirmative relief” (Balanoff v Doscher, 140 AD3d 995, 996 [2d Dept 2016]). “”

“Defendant contends that the plaintiffs committed legal malpractice by withdrawing from her representation despite a clause in the retainer agreement which stated that the law firms “will not withdraw from representing her under any circumstances, except non-payment of the fees described in paragraph 2” (Retainer Agreement ¶ 6, NYSCEF Doc. No. 32). “[A]s a general rule equity will not enforce specific performance of contracts for personal services” (Am. Broadcasting Companies, Inc. v Wolf, 76 AD2d 162, 174 [1st Dept 1980], affd, 52 NY2d 394 [1981]; see also Matter of Baby Boy C., 84 NY2d 91, 101 [1994] [“courts will rarely if ever grant specific
performance of a contract for personal services”]). Furthermore, as set forth in the Declaration of Daniel L. Altman supporting his withdrawal as counsel in Rockefeller action, which was made when the case was trial ready but had not yet been scheduled for trial, his medical conditions at the time made him unfit to conduct a trial. These
conditions included severe pain as a result of a recent surgery, the need for future surgery, limited mobility, and impacted mental faculties as a result of taking a narcotic for his pain (see Declaration of Daniel L. Altman, NYSCEF Doc. No. 18). In addition to Altman’s own assessment as to his fitness to conduct a trial, Altman also had a letter from his Orthopedic Surgeon indicating that Altman would not be able to attend to his court responsibilities (Exh, H, Gonzalez Della Valle, MD letter, NYSCEF Doc. No. 19) Pursuant to the rules of professional conduct, 22 NYCRR § 1200.0 Rule 1.16(b)(2), “a lawyer shall withdraw from the representation of a client when … the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” (emphasis added). The fact that, after having withdrawn in the Rockefeller action, Mr. Altman continued to represent, or be listed as an attorney on other cases that were at different, less taxing, stages litigation than trial does not mean that he was competent to try the Rockefeller action at that time. Accordingly, Altman’s withdrawal from representation was in accordance with the rules of professional conduct, and did not constitute malpractice.”

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