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Steinberg v. Schnapp

April 13, 2010


Plaintiff appeals from a judgment of the Supreme Court, New York County (Jane S. Solomon, J.), entered October 27, 2008, dismissing the complaint and from an order of the same court and Justice, entered on or about September 16, 2008, which granted defendant's motion for summary judgment.

The opinion of the court was delivered by: Nardelli, J.

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.

David B. Saxe, J.P., Eugene Nardelli, John T. Buckley, Rolando T. Acosta Helen E. Freedman, JJ.


At issue is the propriety of the motion court's dismissal of an attorney's claims under the theories of quantum meruit, as well as tortious interference with advantageous economic relationships. Both plaintiff Robert Steinberg and defendant Stanley Schnapp are attorneys admitted to practice in New York. Non-party Leon Baer Borstein also is an attorney, and was the preliminary executor of the estate of Isi Fischzang.

At least three documents relevant to this appeal appear in the record. In an undated and unsigned writing, Borstein advised that he had retained both Steinberg and Schnapp "as my attorneys with respect to all legal proceedings and asset administration concerning the wills, assets and estate of the late Isi Fischzang." Borstein also prepared a document dated September 2007, and entitled "Contract of Employment of Attorneys at Law." It provided that Steinberg was to serve as "trial counsel for all litigation issues," while Schnapp was designated as "the general counsel for the fiduciary and estate, with respect to all litigation proceedings concerning the wills, assets and estate of the late Isi Fischzang." There is also a June 2007 document, offered in reply papers from Schnapp, and signed by Borstein, in which Borstein also advises that he retained both Schnapp and Steinberg. In none of these documents, or in any other contained in the record, is there any suggestion of privity between Schnapp and Steinberg.

The arrangement among the attorneys did not last long, and on March 12, 2008 Steinberg instituted the action which gives rise to this appeal. He asserted two causes of action against Schnapp for quantum meruit and interference with advantageous economic relationships. In the quantum meruit cause of action he alleged that he had performed professional legal services for Schnapp at Schnapp's "special instance and request," but in connection with the Fischzang estate. He further alleged that he was orally retained by Schnapp, and that Borstein had confirmed the retainer in a writing. The services for which he seeks payment were services performed in conjunction with the estate, including two appearances in Surrogate's Court and negotiations with lawyers representing the decedent's widow.

In the claim for tortious interference Steinberg alleges that he was fired because the "underlying client" (Borstein) had become dissatisfied with the delays in the probate of the estate, but that Schnapp fired Steinberg to shift the blame for the delays to Steinberg. Notably, Steinberg acknowledges that the "underlying client" could have requested his discharge "whimsically or capriciously or for any reason or for no reason, but the discharge would remain without cause.'" His concern that there is an intimation that his termination was "for cause" apparently provides much of the impetus for this litigation.

By motion dated June 4, 2008, after issue was joined, Schnapp moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint, arguing that he had never retained plaintiff to perform any legal services, and that it was Borstein who had discharged Steinberg as special litigation counsel to the estate. Schnapp also noted that regardless of whether the discharge was for cause, Borstein had the right to terminate Steinberg at any time. In a reply affirmation Borstein himself confirmed that he had terminated Steinberg because he was unhappy with Steinberg's work product.

The court granted the motion, determining that Steinberg's claim for compensation lay against Borstein, who retained him. Plaintiff now challenges the court's dismissal of the complaint on the merits, and as premature, arguing that he has not been afforded discovery of relevant material evidentiary facts as to both of his claims.

The essence of Steinberg's argument to this Court with regard to the quantum meruit claim is that where two attorneys were retained by the preliminary executor, and one is designated trial counsel under the Rules of the Surrogate's Court, the attorney who is designated "Of Counsel" (Steinberg) should be permitted to seek his legal fees from trial counsel (Schnapp). As will be discussed, he does not explain why the preliminary executor, who signed the written retainer agreement, should not, at least, be a party to any such complaint. He further advances that the unique relationship of the two attorneys in this case requires the application of a different rule of law that must scrutinize whether one attorney has intentionally disparaged or wrongfully shifted blame onto the other.

Steinberg's quantum meruit claim against Schnapp is particularly perplexing, since the record not only contains the various documents prepared by Borstein memorializing his retention of Steinberg as "trial counsel for all litigation issues," but Steinberg's own admission (in his affidavit in response to the motion for summary judgment) that he had been retained by the estate. Further, there is nothing in the record to support even an intimation that an attorney-client relationship existed between himself and Schnapp. Inchoate in his complaint and the averments in support is a veiled concern that he might face a legal malpractice action for actions for which he was not responsible. Why a claim in quantum meruit against co-counsel would forestall such an action is left unsaid, but, in any event, the only issue before us with regard to the quantum meruit claim is whether Steinberg has raised any questions of fact as to Schnapp's argument that he has failed to state a cause of action. We find none.

"[W]e are required to adjudicate [parties'] rights according to the unambiguous terms of the contract and therefore must give the words and phrases employed their plain meaning (Laba v Carey, 29 NY2d 302, 308 [1971]). The plain language of all the written documents presented in this record evidences that Steinberg's client was the estate, and not Schnapp. Certainly, "[i]f a client exercises the right to discharge an attorney after some services are performed but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services" (Matter of Cooperman, 83 NY2d 465, 473 [1994] [emphasis added]). In this case Steinberg has sought to recover compensation for his services from a party who did not have any obligation to compensate him - his co-counsel - with whom he was clearly ...

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