The complainant asked for an order dismissing the affirmative defenses and counterclaim. The opponent also filed an action asking to void the complainant’s motion and demand to direct the action to follow the trial case of her car accident.
It started when the opponent pedestrian was injured in a three car accident. She retained the complainant in the legal action as her attorney. The complainant apparently retained a lawyer as his counsel and both attorneys completed the preliminary trial. During the pre-trial conference, the complainant received an offer of $25,000 and stated that it was the extent of the total insurance coverage applicable to the accident and the opponent’s injuries. After communicating the offer to the opponent, she terminates the complainant and retained new counsel, who now represents the opponent in the underlying personal injury action as well as the recent case she filed. The complainant presented a bill for legal services rendered to the opponent in the sum of $17,500 plus disbursements which is unpaid.
A New York Injury Lawyer said that after presenting the summons and complaint, the opponent moved to dismiss the complaint and direct the complainant to turn over the files as well as to fix the attorney’s bill with security interest. Subsequently, the court ordered the turnover of files and fixed a temporary security interest in favor of the complainant with 50% of the net attorney’s fees subject to his determination. Thereafter, the opponent moved for a protective order as to certain items in the complainant’s demands with regard to the affirmative defenses and accordingly the motion was denied by the court.
The opponent’s first affirmative defense states that the opponent has been compensated in an amount appropriate with his services. However, since the opponent admitted that she didn’t pay the complainant, the defense has no merit and was immediately dismissed.
The opponent’s second affirmative defense states that the complainant has received or is entitled to receive full compensation for the services performed by him through the no fault insurance carrier insuring the vehicles. However, based on records, the complainant could not receive full or even part compensation by a no fault carrier for his fee for services rendered in a negligence case for personal injuries. The attorney’s fees payable from no fault carriers are fixed after settlement trial with regard to uncertain medical expenses or loss of earnings. There has been no proof offered by the opponent of any such settlement trails; and even if there were payment of such no fault attorney’s fees, the legal services charges are separate and apart from no fault fees. Consequently, the second affirmative defense has no merit and was also dismissed.
The opponent’s third affirmative defense states that together with the complainant, she entered into a written agreement which sets the full and exclusive terms of the complainant’s compensation. There is a written compensation agreement annexed to the complainant’s motion papers which provides for a sliding scale payment to the complainant. The agreement asserts to set the terms of the complainant’s compensation for services rendered. Since the contract of payment is not the sole standard of compensation, it may be taken into consideration in determining the fee for the service recovery of the complainant. Given that the defense asserts a breach of the contract and factual accusation of such breach of contract are set in the opponent’s bill of particulars, the defense raises issues capable of trial and must await trial. The motion to dismiss the third affirmative defense was denied.
A Manhattan Personal Injury Lawyer said that the opponent’s fourth affirmative defense states that complainant has breached his agreement with the opponent. The complainant contends that the opponent’s confirmation of the argument in her bill of particulars consists of vague generalities.
As to the counterclaim, the opponent alleges that the complainant is improperly retained as trial counsel without her consent and negligently prepared papers and conducted pretrial discovery as well as well as advised the opponent to settle for an amount less than the potential of the lawsuit. There are some specific factual allegations set in the bill of particulars. The opponent demands damages in the sum of one million dollars. The said allegation is sounding in legal malpractice. However, based on the record, a necessary element for legal malpractice action is damages. There can be no legal damages until the underlying case is resolved. Consequently, the motions to dismiss by the complainant by his attorney and his attorneys (on the counterclaim) are granted. The dismissal is not on the merits and is without bias to renewal of the legal malpractice, either by way of suit or counterclaim, after the termination of the underlying personal injury case, or the fixing of damages in any other manner.
The opponent argues that her underlying car accident case must be put on trial prior to the suit concerning the legal services rendered to her. To resolve the question of the priority of trial, the court will determine whether the complainant has a right to put on trial the suit for legal services rendered prior to and without awaiting the resolution of the underlying law suit.
The law with regard to priority of trial between an underlying unresolved law suit and a substituted attorney’s suit for legal services rendered states that when a client terminated her attorney without any reason, the attorney is entitled to have his payment determined in a fixed dollar amount, presently payable based on the reasonable value of his services. A Suffolk County Personal Injury Lawyer the attorney’s right to recovery is limited to a cause of action in the reasonable value of his services rendered up to the time of the termination.
Despite of the complainant’s desire for immediate action with regard the suit for the legal service rendered, the court is of the opinion that the proper process with the case would be to defer the trial until the conclusion of the underlying lawsuit either by trial or settlement. If not, for the reason that the cases that give the complainant the right to an immediate trial speak of the discharge of the attorney without cause. Second, that it would be obviously unfair, if not improper, for the court to defer the opponent’s counterclaim for legal malpractice and yet permit the trial of the complainant’s suit for legal services. And lastly, despite of the complainant’s urging for an immediate trial for his services rendered on a payment to the service basis, the evaluation of such services in a personal injury suit clearly provide themselves to easier, more reliable and accurate evaluation after all the work has been completed and the disposition is established.
The court accordingly directs that the action is stayed pending the termination of the underlying personal injury suit. The opponent is given to leave and to move for modification of her answer to once again interpose the counterclaim for legal malpractice. The complainant’s temporary security interest of 50% of the net attorney’s fee is to continue, pending the trial of the action. The attorney of the opponent is directed to notify all opponents and their insurance carriers in the underlying legal action of the temporary security interest, and the opponent shall notify them to place the complainant’s name on any check issued in any disposition of the underlying personal injury suit.
Bystanders can be a part of dreadful accidents. It is harder for a victim to accept such fact, but a skilled lawyer can provide you with legal support and can make you realize reason to fight. Contact Stephen Bilkis and Associates today.