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D'Jamoos v. Griffith

July 25, 2006

GABRIEL D'JAMOOS, PLAINTIFF,
v.
MICHAEL GRIFFITH, DEFENDANT.



The opinion of the court was delivered by: Glasser, United States District Judge

MEMORANDUM AND ORDER

INTRODUCTION

This action concerns legal services provided by defendant attorney Michael Griffith ("defendant" or "Griffith") to plaintiff Gabriel D'Jamoos ("plaintiff" or "D'Jamoos") in connection with a commercial dispute (the "Belmont Action") involving two businesses owned by John Lucchese ("Lucchese"), the Belmont Realty Corp. ("Belmont") and Park Terrace Corp. ("Park Terrace"). D'Jamoos sued Griffith for malpractice, among other things, and defendant counterclaimed for attorney's fees, measured either under the contingency fee agreement or, in the alternative, quantum meruit. This Court granted summary judgment in favor of defendant dismissing the malpractice complaint in its entirety. Pending before the Court is defendant's motion for summary judgment on its counterclaims.

BACKGROUND

In 1986, plaintiff retained defendant to represent him in a commercial dispute stemming from plaintiff's financial involvement in Belmont Realty Corporation, which at the time was controlled by plaintiff's brother-in-law Lucchese. (Def. 56.1 Stmt. ¶ 2) (Ex. A 4). According to D'Jamoos, he and Lucchese orally agreed that the $175,000 D'Jamoos paid into the business was a capital contribution. (See, D'Jamoos v. Griffith, Memorandum & Opinion, 00-cv-1361, August 31, 2004 (Docketed 9-02-2004) (hereinafter "M&O") (unpublished)). In opposition, Lucchese contended that D'Jamoos' contribution was merely a loan. (Plt. 56.1 Stmt. ¶ 21).

The matter was not resolved amicably, and by 1990, D'Jamoos began to prepare for litigation. (Forte Aff., Ex. G). In June of 1990, Griffith sent D'Jamoos a contingency fee agreement. It provided for:

1. An initial retainer in the sum of $10,000 to cover services up to but not including a trial of the action plus 2. A contingent fee of 20% of any recovery whether by settlement, trial or otherwise. 3. In the event a trial of the action is required, there will be a per diem trial fee in an amount to be mutually agreed upon, said per diem trial fee to be credited against the contingent fee above described. (Forte Aff., Ex. C).*fn1

Suit was commenced in July of 1990 in New York Supreme Court, Richmond County, against John Lucchese and Georgette Lucchese, who is D'Jamoos' sister and, at the time, was in the process of divorcing John Lucchese.

This action went to trial in February of 1997. (Gabriel D'Jamoos v. John Lucchese, Belmont Realty Corp. and Park Terrace Corp. (Index No. 120/92) ("Belmont Action")). At the close of that trial the parties appeared to put an oral settlement agreement on record ("1997 Stipulation"). However, it was never signed by the parties and never converted into a binding agreement.*fn2 (Def. 56.1 Stmt. ¶ 3) (Ex. D 4-5).

In March of 1998, a second settlement agreement was proposed ("1998 Settlement") whereby plaintiff would obtain a 49% interest in Belmont Corporation, without regard to previous capital contributions. "On the record, DeVito advised plaintiff that Belmont was a single asset corporation. At the close of that proceeding, Justice Maltese swore in plaintiff and engaged in the following colloquy:

The Court: Sir, have you heard the discussion that's taken place here this morning?

D'Jamoos: I did.

The Court: And are you in agreement with the basic structure that is being proffered to you to settle this case?

D'Jamoos: I suppose. (Attorney confers with client).

D'Jamoos: Yes, your Honor.

The Court: And this has been explained to you by your lawyer? D'Jamoos: Most of it.

The Court: And it has to be finalized?

D'Jamoos: Yes. ....

The Court: Do you have any questions at this point?

D'Jamoos: No."

(M&O, 5-6).

This agreement was never finalized. The action concluded without plaintiff receiving anything, including his original capital contribution. (Def. 56.1 Stmt. ¶ 4) (Ex. D p. 5-7). An attempt at settlement was again made in September of 1998, with a written stipulation agreeing to the terms of the 1998 Settlement. (See, D'Jamoos v. Griffith, 368 F.Supp.2d 200, 202 (E.D.N.Y. 2005)).

For reasons not fully clear, by 1999 the plaintiff still had not received the shares pursuant to the settlement. On December 1, 1999, plaintiff terminated defendant's legal services. (Def. 56.1 Stmt. ¶ 5) (Forte Aff., Ex. H). In May of 2000, plaintiff commenced an action in state court to "rescind" the 1998 Settlement and reinstate the 1997 Stipulation in light of Lucchese's failure to tender the Belmont stock to D'Jamoos. (M&O, 6). On June 16, 2000, Judge Maltese held that the 1997 Stipulation was unenforceable, and ordered that John Lucchese tender the remaining 49% shares of outstanding stock to D'Jamoos, in accord with the 1998 Settlement. (Forte Aff., Ex. I). On July 19, 2000, plaintiff commenced this action, asserting legal malpractice and other related state law claims against Griffith.*fn3 Twelve days later, D'Jamoos rejected the tender to him of the 49% share in Belmont. (Forte Aff., Ex. J). In August of 2001, after plaintiff amended the complaint, defendant filed a pre-answer motion to dismiss which was denied. Afterwards, defendant answered the complaint, asserting counterclaims for attorney's fees either based upon the contingency fee agreement or, in the alternative, in quantum meruit.

Defendant also moved for summary judgment against the complaint in 2004. Pursuant to defendant's motion, this Court dismissed the complaint in its entirety (Ex. D), ...


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