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Kern v. Shandell

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 15, 2009

CHET W. KERN, ESQ., PLAINTIFF-RESPONDENT,
v.
SHANDELL, BLITZ, BLITZ & BOOKSON, L.L.P., ET AL., DEFENDANTS.
SHANDELL, BLITZ, BLITZ & BOOKSON, L.L.P., PLAINTIFF-APPELLANT,
v.
SANDRA RUTH SCHIFF, ESQ., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 29, 2007, which, in actions between attorneys involving payment of referral fees, granted defendant Schiff's motion to consolidate action No. 2, brought against her by the law firm SSSB, with action No. 1, brought against SSSB by Kern, and denied SSSB's motion for summary judgment in action No. 2, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Gonzalez, Buckley, Sweeny, Catterson, JJ.

600483/07 600739/07

Common questions of law and fact warranting consolidation include: Kern's entitlement to share in fees derived from the "referral list" of cases set forth in his agreement with SSSB upon joining that firm; the amount of that entitlement; the amount of the fees realized by Schiff from referral list cases; and the amount of referral list fees already paid by Schiff to SSSB. As the motion court succinctly put it: "both actions concern a dispute over legal fees from cases arising from Kern's Referral List that SSSB claims it either is owed (the SSSB Action) or does not owe (the Kern Action)." These common issues also require denial of SSSB's motion for summary judgment against Schiff in action No. 2. Schiff, who claims to be a stakeholder in Kern's action No. 1 against SSSB, cannot be held liable to SSSB for referral fees until action No. 1 resolves SSSB's liability to Kern for the very same fees.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090115

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