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Gerard Harris v. City of New York

November 9, 2012


The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge



Before the Court in this employment discrimination action, which was terminated in 2000 via a "Stipulation of Settlement" and order of the Court, is Gerard Harris' ("Harris") pro se motion, made pursuant to Rules 60(b) and 60(d) of the Federal Rules of Civil Procedure. Through the motion, Harris seeks an order relieving him from: (1) "the fraudulent effects of the manipulation of the Order of the stipulated settlement by [his] former counsel Carroll & Friess"; and (2) "the said Order's withdrawal of the action with prejudice." The plaintiff also seeks an order, as provided for in New York Judiciary Law § 475, directing Carroll & Friess "to pay [him] the sum of $165,000," treble the portion of the settlement fund he maintains the law firm "wrongfully took from [him]." The motion is unopposed by the defendants;*fn1 however, Rosemary Carroll, Esq. ("Carroll"), who represented Harris at the time the action was terminated, submitted an affirmation and a memorandum of law urging the Court to dismiss the motion, maintaining, principally, that the motion is untimely.


On October 4, 1996, Harris commenced this action, pro se, by filing a complaint with the Clerk of Court. Subsequently, Harris retained counsel, the law firm of Carroll & Friess. In February 1997, Carroll filed a notice of appearance with the Clerk of Court, on Harris' behalf. Thereafter, an amended complaint was filed by Harris. The defendants moved successfully, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the complaint, for failure to state a claim upon which relief could be granted. Harris appealed from the dismissal to the Second Circuit Court of Appeals, which, in August 1999, affirmed the district court's determination, in part, reversed it, in part, and remanded the case to the district court for further proceedings.

After the action was remanded, and shortly before it was scheduled for trial, the parties reached a negotiated disposition, the terms of which were memorialized in a writing styled "Stipulation of Settlement ('Stipulation')". The Stipulation states, inter alia, that

[t]he defendants agree to pay to the plaintiffs [sic] the sum of $90,000.00 for damages, cost [sic] and Attorneys [sic] fees, which sum shall be paid by check, made payable to Carroll & Friess, as Attorneys for plaintiffs [sic] in full satisfaction of all claims, costs and attorneys fees, as to which defendants will make good faith efforts to pay said sum within 90 days of the signing of the stipulation. In consideration for the payment of the sum referred to in paragraph "2" hereof, plaintiff shall execute and deliver to defendants' attorney a General Release therefor, which release will be held in escrow by the Assistant Corporation Counsel until payment to plaintiff's counsel of the above sum.

* * * This Stipulation and Order contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time or any written agreement entered into prior to the execution of this Stipulation and Order regarding the subject matter of this action shall be deemed to exist or bind the parties hereto or vary the terms and conditions herein.

The Stipulation was signed by counsel to the respective parties on October 13, 2000, and was endorsed as an order of the Court on October 16, 2000. On that same date, Harris executed a document styled "General Release." Through that document, Harris stated that, in consideration of payment by or on behalf of the City of New York or [sic] an amount agreed between the parties, to wit, $90,000.00, [he does] hereby release and discharge the defendants . . . it [sic] successors, or assigns, and all past and present officials, employees, representatives and agents of the . . . defendants from any and all claims which were or could have been alleged by me in the aforementioned action arising out of the events alleged in the complaint in said action, including all claims for attorney's fees and costs. This Release may not be changed orally. The undersigned has read this foregoing General Release and fully understands it.

According to Harris,

[a]fter my general release was sent to the City for payment of the settlement, Carroll & Friess, without my knowledge or consent covertly wrote to defendants' counsel, and instructed defense counsel, to ascertain that the payments to be made per the settlement would be by two checks, one being for only thirty five thousand ($35,000.00) dollars payable to me as plaintiff, and the other by check for fifty five thousand ($55,000.00) dollars payable to Carroll & Friess. . . . The defendants, following Carroll & Friess' wrongful and surreptitious request, withheld $55,000.00 of my settlement from me, and instead diverted those funds to Carroll & Friess.

Harris maintains that, "[p]ursuant to my retainer agreement with Carroll & Friess, Esqs., said firm was entitled to a fixed fee of Seven Thousand Five Hundred ($7,500.00) Dollars for all its efforts in representing me in this action. This sum certain was suggested by counsel and they prepared the contract providing the same, which I did then sign under my belief, that a set fee was acceptable, as an alternative to the financial uncertainties of hourly or contingent fee billing. Ms. Carroll, on behalf of her firm, signed the retainer agreement at the same time." (Emphasis in original). Harris attached a copy of the retainer agreement as an exhibit to the affidavit he submitted to the Court in support of the instant motion.

Harris contends that, based on the retainer agreement, "the only amount I owed anyone, from the gross sum of my settlement, was the attorneys' fee of Carroll & Friess, if any part of the agreed $7,500.00 fee remained outstanding at the time of my receipt of my settlement funds, pursuant to the . . . stipulation of settlement." (Emphasis in original). Harris alleges that, prior to achieving the settlement, he satisfied his $7,500.00 obligation to his counsel, under the retainer agreement, and paid counsel an additional $3,500.00, pursuant to a second retainer agreement prepared in September 1998 by Carroll & Friess, for legal services rendered in connection with the appeal from the order entered on the motion to dismiss. In support of his assertion that a second retainer agreement was entered into with Carroll & Friess, Harris submitted to the Court, as an exhibit to his Reply Affidavit, a document styled "Retainer Agreement." That document is signed by Harris, but it is neither dated nor signed by his counsel.

Harris maintains that the entirety of the settlement amount, $90,000.00, should have been paid to him, without any portion being paid by the defendants to his counsel for legal fees, as he paid all the legal fees to which Carroll & Friess were entitled, based on the "retainer agreements" he contends he entered into with the law firm. Several months after Harris executed the general release, he received from the defendants a check for $35,000.00, which he believed was a partial payment of the settlement. When no other settlement funds were sent to him, Harris recalls that he "called Ms. Carroll, and was first told that all I would receive was the Thirty-Five Thousand ($35,000.00) Dollars I had already received. Shocked, I asked her where the rest of my settlement went or was going. For the first time, she told me that she claimed and obtained the remainder of Fifty-Five Thousand ($55,000.00) Dollars as her firm's fee." Harris reports that after learning of this, he presented his fee dispute with Carroll & Friess to "the Disciplinary Committee of the New York State Supreme ...

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