Summary
holding that an attorney's quantum meruit cause of action accrues immediately upon discharge
Summary of this case from Dweck Law Firm, L.L.P. v. MannOpinion
November 10, 1997
Appeal from the Surrogate's Court, Suffolk County (Prudenti, S.).
Ordered that the order is reversed, on the law, with costs payable by the estate, the preliminary executor's motion is denied, and the petition is reinstated.
It is well settled that a client may discharge an attorney at any time, with or without cause ( see, Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 457; Matter of Montgomery, 272 N.Y. 323, 326). As against the client, where the discharge is without cause, the attorney may recover the fair and reasonable value of the services rendered, computed on the basis of quantum meruit and determined as of the time of the discharge. Such a cause of action accrues immediately upon discharge, and the attorney is not compelled to wait until the outcome of the litigation ( see, Matter of Cohen v. Grainger, Tesoriero Bell, 81 N.Y.2d 655, 658; Lai Ling Cheng v. Modansky Leasing Co., supra, at 459; Matter of Tillman, 259 N.Y. 133, 136; Matter of Berger, 263 App. Div. 730; Paulsen v. Halpin, 74 A.D.2d 990, 991; Zimmerman v. Kallimopoulou, 56 Misc.2d 828). "Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement" ( Campagnola v. Mulholland Minion Roe, 76 N.Y.2d 38, 44). Whether the petitioner here was discharged for cause or without cause can be established in the context of its fee application.
This is not a case where multiple executors have employed separate counsel to perform the same work, in which case the total fee to all attorneys should not exceed one attorney's fee ( see, Matter of Mattis, 55 Misc.2d 511, 516; Matter of Levi, 3 Misc.2d 746), and which situation might justify the need to postpone the determination of any single attorney's fee. Nor is this a case where the petitioner is seeking a percentage of a contingency fee ( see generally, Lai Ling Cheng v. Modansky Leasing Co., supra). Indeed, there is no reason why the petitioner must be compelled to wait until the end of the administration of the entire estate to seek its reasonable fees. Additionally, the preliminary executor has failed to establish good cause sufficient to seal the petition and the supporting papers ( see, 22 NYCRR 216.1).
Thompson, J.P., Pizzuto, Santucci and Joy, JJ., concur.