Preview:

[*1]


Decided on June 7, 2005
Civil Court of the City of New York, New York County

24663CVN2003
Eileen A. Rakower, J.
This action for damages and reimbursement of allegedly unauthorized disbursements was tried before this Court on May 4, 2005. Plaintiff and defendant both testified. No other witnesses were called. The parties submitted post trial memoranda of law. The Court finds as follows:
Plaintiff retained defendant to represent him in a pending medical malpractice action. Until that time plaintiff had represented himself through his own firm, Brookman and Brookman PC. Plaintiff and defendant entered into a written retainer witnessed on June 5, 2001. The retainer agreement provides that plaintiff
"expressly agrees that he will advance all disbursements in connection with the trial and
appeal of this action ... and that his attorney has no responsibility or obligation to and
will not advance any disbursements in connection therewith."
Defendant ultimately advanced certain expenses. Defendant provided a closing statement to plaintiff after plaintiff settled his case. That statement reflected expenses paid by defendant to third parties.
The gravamen of plaintiff's claim here is that certain expenses and disbursements were incorrectly paid by the defendant without his authorization and that defendant should now bear their cost. Plaintiff interprets the retainer as prohibiting defendant from advancing any disbursements, and permitting payment for [*2]only those disbursements authorized and advanced by him. Plaintiff took the position at trial that the above provision provided him a way to contain costs. Plaintiff does not contest that defendant in fact paid disbursements.
First, the Court turns to the terms of the parties' agreement. "The objective of contract interpretation is "to determine 'what is the intention of the parties as derived from the language employed' " Hartford Accident & Indemnity Co. v. Wesolowski, 33 NY2d 169, 171-172, 350 NYS2d 895, 305 NE2d 907). Clear and unambiguous terms should be understood in their plain, ordinary, popular and non-technical meaning. Where the language is plain and unambiguous, extrinsic circumstances should not be considered to determine the intention of the parties (Bethlehem Steel Co. v. Turner Constr. Co., 2 NY2d 456, 459, 161 NYS2d 90, 141 NE2d 590; Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 AD2d 68, 77, 430 NYS2d 179)." Lopez v. Fernandito's Antique, Ltd., 760 NYS2d 140 (A.D. 1st Dept. 2003)
It is obvious that the terms of the last paragraph assign responsibility and obligation for disbursements to plaintiff. While it states that defendant "will not advance any disbursements in connection therewith," it does not expressly forbid him from paying disbursements for services provided for plaintiff. The Court credits defendant with his explanation that plaintiff advanced $5000 toward disbursements. When disbursements exceeded the $5000, defendant then paid expenses incurred as a convenience. Defendant argues that this was permissible. The court agrees that the terms of the parties' agreement cannot be read to constrain defendant in his representation of plaintiff in the way plaintiff now suggests.
Specifically, plaintiff testified that he objected to the fee paid by defendant to Dr. Weinberg, the expert retained to testify on his behalf in his malpractice action. Plaintiff settled his case on the afternoon of the business day before Dr. Weinberg was scheduled to take the stand and Dr. Weinberg never testified. The Court credits defendant's testimony that plaintiff was obligated to Dr.
Weinberg for his fee because the doctor was not notified of the settlement early enough and already had cancelled his day's appointments to be available for the scheduled appearance.
The Court also credits defendant's explanation of the circumstances under which payment was made for Dr. Weinberg's preparation and appearance. Plaintiff made the initial arrangements with Dr. Weinberg. Dr. Weinberg wrote an 'expert report' which he sent to plaintiff before defendant was retained. Plaintiff paid Dr. [*3]Weinberg directly for that report. Plaintiff gave $3000 to Dr. Weinberg at defendant's direction. Defendant testified that he compensated the doctor for his scheduled appearance, as well as for a four hour dinner during which he prepared Dr. Weinberg for trial. Finally, plaintiff directed defendant to negotiate a return of funds from the doctor, which defendant did.
Dr. Weinberg was not called to testify at this trial regarding the terms of his agreement to appear in the medical malpractice matter, and plaintiff did not otherwise provide evidence of their agreement. Even so, as shown above, it was evident through the testimony of both plaintiff and defendant as well as through evidence of payments to Dr. Weinberg, that Dr. Weinberg was dealing directly with both plaintiff and defendant, collecting portions of his fees from each of them. The parties agreed that Dr. Weinberg was paid a total of $7500, and that the doctor returned $4150 of that to plaintiff. Dr. Weinberg retained $3350. It is this amount that plaintiff seeks here from defendant.
Plaintiff conceded that he never sought the $3350 from Dr. Weinberg directly, which he now claims was overpaid. Rather, plaintiff accepted the return of $4150 from Dr. Weinberg that defendant in fact negotiated. Plaintiff argues that defendant is still responsible for the "overpayment" because he failed to make an agreement with Dr. Weinberg to limit his fee.
Plaintiff, having chosen Dr. Weinberg, and having arranged for his services cannot now hold defendant responsible for any failure to explicitly limit his fees. Plaintiff, an attorney himself, could have made a clear written agreement with Dr. Weinberg at the time that he retained him. He did not, or at least none was presented to this Court. The Court credits defendant's testimony and finds his actions with regard to Dr. Weinberg to have been reasonable and within the terms of the parties' retainer agreement.
Plaintiff also objects to the item on the closing statement for a $1055.16 disbursement to NYU's Health Sciences Bookstore for "Facial Plastic Surgery Texts." Defendant testified that he needed to buy these books to prepare for trial and educate himself about plaintiff's surgery so he could effectively examine witnesses. Plaintiff does not contest that defendant used these textbooks to prepare for the trial. In fact, it is reasonable that defendant used them to prepare for his examination of a doctor with knowledge of particular surgical procedures unique to the underlying [*4]malpractice action. The court finds the expense is a proper disbursement, and makes no further direction regarding the ownership of the subject textbooks. This Court is without the power to direct defendant to turn over these books to plaintiff. However, the Court credits the testimony of defendant that he offered the books to plaintiff, and that plaintiff refused them.
Wherefore, plaintiff's complaint is hereby dismissed. This constitutes the Decision and Order of the Court. The parties may retrieve any documents placed in evidence from the clerk of the Court in Room 118.
Dated: June 7, 2005
Eileen A. Rakower

J.C.C.

Download 2005_51016.pdf

New York Law