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Efrom Gross, Esq v. Lawrence Katz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 10, 2011

EFROM GROSS, ESQ.,
RESPONDENT,
v.
LAWRENCE KATZ, ESQ.,
APPELLANT.

Appeal from a decision of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated February 18, 2009, and from a judgment of the same court entered March 4, 2009.

Gross v. Katz

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2011

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

The decision and judgment, after a non-jury trial, awarded plaintiff the principal sum of $3,300.

ORDERED that the appeal from the decision is dismissed; and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action, plaintiff, an attorney, seeks to recover from defendant, also an attorney, the balance allegedly due for legal fees, based on a fee-sharing agreement. In a decision after a non-jury trial, the District Court awarded plaintiff the principal sum of $3,300. A judgment in favor of plaintiff was subsequently entered. Defendant appeals from the decision as well as from the judgment.

The appeal from the decision must be dismissed as no appeal lies from a decision (see UDCA 1702).

On a bench trial, the decision of the fact-finding court should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In the instant case, the District Court was entitled to credit plaintiff's testimony that there was an oral fee-sharing agreement between plaintiff and Lawrence Katz and Abraham Kleinman, of Katz & Kleinman, defendant's prior law firm, and that he acted as the liaison between his client (who was the lead plaintiff in a federal class action commenced by Katz & Kleinman in 2002) and said law firm, keeping his client apprised of the progress of the federal case. The record indicates that Katz & Kleinman was dissolved in May of 2007, and that the federal class action was subsequently settled. The settlement in the class action was negotiated by Mr. Kleinman, and the order granting final approval of the class action settlement provided that reasonable counsel fees were to be paid to "class counsel Lawrence Katz formerly of Katz & Kleinman."

There was sufficient evidence in the record to demonstrate that there was a valid fee-sharing agreement, that plaintiff's client consented to this arrangement, and that plaintiff performed "some work, labor or service toward the earning of the fee" (Witt v Cohen, 192 AD2d 528, 529 [1993] [internal quotation marks and citations omitted]). Thus, the fee-sharing agreement was enforceable under former Code of Professional Responsibility DR 2-107 (22 NYCRR 1200.12), which was in effect at all relevant times. Consequently, under the circumstances presented, the District Court properly determined that plaintiff was entitled to be compensated by defendant for his services.

Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: January 10, 2011

20110110

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