Preview:

[*1]


Decided on October 28, 2009
Supreme Court, Nassau County

8395/07
DONALD FELIX, pro se Plaintiff THOMAS LIOTTI Defendant pro se Ute W. Lally, J.
Plaintiff had retained defendant on May 28, 2002 to represent him in certain criminal matters and discharged him on February 8, 2006.
By order of this court (Diamond, J., June 30, 2008) plaintiff was granted summary judgment for defendant's breach of the retainer agreement (Exh. 1). By further order of the court (Diamond, J., June 23, 2009) an assessment of damages trial was directed to be held to determine the damages due to plaintiff.
Plaintiff is currently incarcerated at Greenhaven Correctional Facility and was produced for said trial which was held on October 27, 2009.
The Fee Agreement between the parties dated May 28, 2002 provided, in pertinent part:
"Representation of DONALD FELIX concerning a 330 Motion in [*2]Nassau County, preparation of presentence memorandum; attendance at sentencing and filing of Notice of Appeal. I will also represent the client in filing an appeal in Kings County and one in Nassau County and file a 440 Motion in Kings County. This retainer does not include appeals.
1.Fee for Trial Level Representation: Our fee for handling the above work in Nassau County is $5,000.00 and our fee for handling the 440 Motion and 2 appeals, one in Kings County and one in Nassau County is $20,000.00, which fee shall be deemed earned upon payment."
The agreement was signed by Rufina Felix (plaintiff's mother) for Donald Felix. It is undisputed that defendant was paid the sum of $25,000.00.
On February 8, 2006 plaintiff mailed a letter of discharge to defendant (Exh. 2) citing dissatisfaction with defendant's services, such as delay, punctuality, failure to provide promised services in a timely fashion and requested a refund of unearned funds paid.
It has already been determined by the order of Justice Diamond dated June 30, 2008 that defendant failed to file a CPL 440 motion as promised in the retainer. Further, in said decision Justice Diamond stated that "the letters attached to defendant's motion to reargue as exhibits that were allegedly received from plaintiff do not indicate plaintiff's consent to ignore the filing of the CPL 440 motion that defendant was retained to prepare and submit to the court."
Plaintiff further claims that defendant failed to file the Nassau County appeal provided for in the Retainer Agreement. Defendant asserts that the Nassau County brief was filed before discharge and submits a copy of the brief showing a date of January 23, 2006 (Exh. F). However, said brief was not served upon the Nassau County District Attorney's office until March 1, 2006 and caused the District Attorney to cross-move the Appellate Division, 2nd Dept. for an order striking said brief as "filed by an attorney who does not represent defendant" (Exh. 7).
Plaintiff seeks a refund of $20,000.00 (see complaint, Exh. [*3]5) arguing that defendant forfeited his entire fee due to his discharge for cause.
At trial plaintiff requested treble damages pursuant to Judiciary Law

Download 2009_52490.pdf

New York Law