Robert A. Cardali and ROBERT A. CARDALI AND ASSOCIATES LLP, Plaintiffs,
Richard Slater and WINSBERT SPENCE, Defendants.
Petitioners: Arnold DiJoseph, New York, NY.
Defendant Slater: Richard Slater, Pro Se, New York, NY
ARLENE P. BLUTH, J.S.C.
Sequence Numbers 9, 10, 11, 12 and 13 are consolidated for
disposition. Because motion sequence number 13 consists of
dispositive motions, that motion and its cross-motion for
summary judgment will be addressed first.
Robert Cardali and defendant Richard Slater are both
experienced attorneys who specialize in personal injury
cases. Slater worked for Cardali's various firms for over
twenty years. On August 19, 2010, the parties had an argument
and Cardali fired Slater.
personal injury lawyers work on a contingency fee basis, they
do not get paid for their efforts as the case progresses;
instead, the lawyer collects his or her fee at the end of the
case. That fee is usually one third of the net recovery.
"Net recovery" as used here means the amount left
over after the expenses are reimbursed. For example, if the
lawyer has laid out $4, 000 in expenses and the case settles
for $100, 000, then the net recovery is $96, 000. The lawyer
would first be reimbursed for his out of pocket expenses, $4,
000 in this example, and the net recovery of $96, 000 would
be distributed $64, 000 to the client and $32, 000 to the
lawyer. In that example, the lawyer walks away with $36, 000
($32, 000 for his labor and $4, 000 for his expenses) and the
client gets $64, 000.
other hand, if the expenses were $10, 000, then the net
recovery would be $90, 000 which would be split $60, 000 to
the client and $30, 000 to the lawyer. In this example, the
lawyer would walk away with $40, 000 ($30, 000 for his labor
and $10, 000 for expenses) and the client would only receive
more money that is attributable to expenses, the more money
the lawyer gets and the less money the client gets. This
creates an opportunity for an unscrupulous lawyer to pad
Mr. Cardali did more than just pad expenses. He engaged in
double-dipping. That is, after entering into an agreement
promising the client that his labor for the case would be
capped at one-third of the net recovery, Mr. Cardali hired
people outside his firm to do the work (for example, motion
practice) and billed the client for that lawyer's fee. So
the client ended up paying twice for the same work - the
client paid Mr. Cardali one third of the net recovery plus
the client was charged and paid the lawyer who actually did
the work out of the expenses deducted from the recovery. It
is this outrageous practice that is the root of this case.
at the Cardali firm, one of the clients Slater represented,
and with whom he built a rapport, was Mr. Spence. After
Slater left the firm, he discovered that Mr. Spence was a
victim of Cardali's double-billing scheme; outside
counsel costs for farmed-out trial-level legal work were
billed and hidden as "appellate work" even though
there was no appellate work on the case whatsoever. Mr.
Spence was overcharged $8, 400 that Cardali paid to an
outside firm on a motion for summary judgment; again, if
Cardali wanted to pay someone to make or oppose a motion,
that is allowable. But if Cardali paid another lawyer to make
or oppose a motion, that lawyer's fee ought to have come
out of Cardali's share of the recovery; that is, Cardali
should have paid that lawyer himself. Clearly, charging the
client for outside counsel fees and collecting the full
contingency fee is double-billing. Slater wrote to Anthony
Broccolo, another experienced attorney at the firm, the
"Anthony - Rob [Cardali] put my reputation and career in
jeopardy because of what he did, in my opinion on Spence. For
that reason, he is nothing more than a common criminal. Feel
free to show this to whoever you wish to. RNS [Richard
handwritten note is the basis for the first through third
causes of action in the complaint (libel and libel per se).
The fourth cause of action is for slander because Slater left
the following voice mail on the law firm's answering
"I am making this phone call pursuant to specific
instructions given to me by [two former clients of Cardali].
They wanted me to advise you that they are seriously
considering promptly approaching the Rackets Bureau of the
District Attorney's Office."
started this litigation for defamation, which has lasted six
years, many conferences and 13 motions. The First Department
Disciplinary Committee investigated Cardali's tactics and
determined that Cardali's firm violated ethics (Rule 1.5
and DR Code's 2-106 and 2-107) for its actions and
sanctioned it by imposing an admonishment. The Disciplinary
Committee stated that Cardali's firm received only an
admonishment because it had relied, in part, upon the advice
of an ethics attorney.
entitled to the remedy of summary judgment, the moving party
"must make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact from
the case" (Winegrad v New York Univ. Med. Ctr.,
64 N.Y.2d 851, 853, 487 N.Y.S.2d 316');">487 N.Y.S.2d 316 ). The failure to
make such prima facie showing requires denial of the motion,
regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the
court views the alleged facts in the light most favorable to
the non-moving party (Sosa v 46th St. Dev. LLC, 101
A.D.3d 490, 492, 955 N.Y.S.2d 589');">955 N.Y.S.2d 589 [1st Dept 2012]). Once a
movant meets its initial burden, the burden shifts to the
opponent, who must then produce sufficient evidence to
establish the existence of a triable issue of fact
(Zuckerman v City of New York, 49 N.Y.2d 557, 560,
427 N.Y.S.2d 595');">427 N.Y.S.2d 595 ). The court's task in deciding a
summary judgment motion is to determine whether there are
bonafide issues of fact and not to delve into or resolve
issues of credibility (Vega v Restani Constr. Corp.,
18 N.Y.3d 499, 505, 942 N.Y.S.2d 13');">942 N.Y.S.2d 13 ). If the court is
unsure whether a triable issue of fact exists, or can
reasonably conclude that fact is arguable, the motion must be
denied (Tronlone v Lac d'Amiante Du Quebec,
Ltee, 297 A.D.2d 528, 528-29, 747 N.Y.S.2d 79');">747 N.Y.S.2d 79 [1st Dept
2002], affd 99 N.Y.2d 647, 760 N.Y.S.2d 96');">760 N.Y.S.2d 96 ).
there are cross-motions for summary judgment; both Cardali
and Slater agree that there are no issues of fact. Slater
admits he wrote the note and left the voice mail. The parties
just disagree on the import of Slater's note to Broccolo
and the message left on the firm's voice mail about being
reported to the District Attorney.