& Gilbert, Larchmont, NY (Catherine M. Staropoli of
counsel), appellant pro se.
Novenstern Fabriani & Gaudio, LLP, Mt. Kisco, NY (R.
Christopher Owen of counsel), for respondent.
M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover legal fees, the plaintiff appeals from a
judgment of the Supreme Court, Westchester County (Giacomo,
J.), entered March 24, 2015, which, upon a decision of the
same court dated December 17, 2014, made after a nonjury
trial, is in favor of the defendant and against it dismissing
that the judgment is affirmed, with costs.
an action to recover legal fees based on the plaintiff law
firm's representation of the defendant in her efforts to
enforce the maintenance and child support provisions of her
separation agreement and judgment of divorce, and to oppose
her former husband's petition for downward modification
of his maintenance and child support obligations.
September 2008, the defendant signed a "post judgment
retainer agreement, " securing the services of the
plaintiff, inter alia, "to represent [her] in a post
matrimonial proceeding." The agreement provided that it
did not apply to "any appeals, " and that if any
"such engagement were to be accepted by this firm in the
future, the firm's representation would have to be
evidenced by execution of another and separate Retainer
plaintiff thereafter filed a petition on behalf of the
defendant in the Family Court for accumulated support arrears
and add-on expenses. In an order dated August 4, 2009, a
Support Magistrate directed the entry of a money judgment
against the former husband for child support arrears in the
principal sum of $83, 590.04. That determination was affirmed
by this Court (see Matter of Withers v Withers, 79
2010, the plaintiff filed another violation petition in the
Family Court on behalf of the defendant for additional child
support and maintenance arrears totaling $29, 117.05. The
defendant then signed a second retainer agreement, which was
similar in all respects to the initial retainer agreement
except for an increase in hourly fees.
former husband then moved in the Supreme Court to terminate
his maintenance obligation and for downward modification of
his child support obligation. The plaintiff sought
attorney's fees in the sum of $10, 000 on behalf of the
defendant for defending that motion. In an order dated
January 4, 2011, the Supreme Court denied the former
husband's motion, and awarded the defendant $10, 000 in
attorney's fees, payable directly to the plaintiff.
plaintiff filed another petition in the Family Court on
behalf of the defendant for attorney's fees incurred in
the Family Court proceedings in the sum of $41, 044.06, and
the plaintiff was awarded that amount in an order dated
November 21, 2012.
plaintiff then commenced this action to recover
attorney's fees in the sum of $80, 317.52 arising from
work it performed in the Family Court and the Supreme Court,
and for appellate work. The complaint asserted two causes of
action: breach of contract and on an account stated. At the
nonjury trial, the plaintiff raised an additional claim
sounding in quantum meruit. The Supreme Court found that (1)
the plaintiff could not obtain additional fees for its work
in the Family Court, because the Family Court had already
awarded it attorney's fees for the sum it requested, (2)
the plaintiff was not entitled to recover additional
attorney's fees for its work in the Supreme Court, and
(3) the plaintiff was not entitled to attorney's fees for
its appellate work, because it never entered into a retainer
agreement with its client for such work. In the judgment
appealed from, the court dismissed the complaint. The
attorney is not precluded from seeking fees charged pursuant
to a retainer agreement that are greater than the amount
granted to the client by the court in the action where the
circumstances warrant, such as where the fees awarded by the
court are less than the amount demanded (see Seth
Rubenstein, P.C., v Ganea, 41 A.D.3d 54). Here, the
plaintiff obtained awards of the amounts demanded in both the
Family Court and Supreme Court matters and, accordingly, was
not entitled to additional fees.
respect to the appellate work provided, there was no written
retainer agreement, which is required by 22 NYCRR 1400.3,
governing such work. While the existing retainer agreements
were for "post judgment" matter, which could be
understood as matter arising subsequent to the entry of the
judgment of divorce, those agreements explicitly did not
encompass appellate work. Therefore, the plaintiff was not
entitled to payment for fees incurred for appellate work
(see Law ...