You are here: / / QUESTIONS OF FACT IN THIS ATTORNEY’S FEES DISPUTE WHETHER THERE WAS...
, ,

QUESTIONS OF FACT IN THIS ATTORNEY’S FEES DISPUTE WHETHER THERE WAS AN ORAL AGREEMENT TO RETURN THE UNEXHAUSTED PORTION OF THE RETAINER PAID BY PLAINTIFF AND WHETHER THE VOLUNTARY PAYMENT DOCTRINE APPLIED (FIRST DEPT).

The First Department determined defendant-attorneys failed to eliminate questions of fact about whether there was an oral agreement to return the unexhausted portion of the $176,500 retainer plaintiff paid for representation in an employment discrimination case, and whether the voluntary payment doctrine applied:

It is undisputed that defendants never provided plaintiff with a written agreement, as required under 22 NYCRR 1215.1. In addition, [defendant-attorney] Herman, in his deposition testimony, admitted that he never provided any itemization of the time spent working on plaintiff’s case, even when plaintiff’s counsel requested it. Thus, defendants failed to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … .

Defendants also failed to establish that plaintiff’s claim is barred by the voluntary payment doctrine, which “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, rather than any “deposits” towards a retainer, they failed to establish that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him  … . Plaintiff also averred that defendants told him that part of the payments would be used towards a trial and an appeal, which never occurred. Since defendants allegedly intended to keep the payments, regardless of any trial or appeal, there are material issues of fact whether plaintiff made the payments “with full knowledge of the facts”… or based on a mistake of material fact … . Dubrow v Herman & Beinin, 2019 NY Slip Op 03297, First Dept 4-30-19

 

You might also like
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (FIRST DEPT). ​
FAMILY COURT SHOULD NOT HAVE RELINQUISHED TEMPORARY EMERGENCY JURISDICTION OVER THE NEGLECT PROCEEDING UPON LEARNING FATHER HAD COMMENCED A CUSTODY PROCEEDING IN TEXAS; THERE WAS NO ASSURANCE FROM THE TEXAS COURT RE: SAFEGUARDING THE CHILD (FIRST DEPT).
OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT).
ALTHOUGH SUCCESSIVE SUMMARY JUDGMENT MOTIONS ARE DISFAVORED; HERE THE ISSUES IN EACH MOTION DID NOT OVERLAP AND APPELLANTS OFFERED A SUFFICIENT REASON. I.E. THE FIRST MOTION PRECEDED DEFENDANT’S DEPOSITION IN WHICH HE ADMITTED SWERVING INTO APPELLANTS’ VEHICLE (FIRST DEPT).
BAR AND SECURITY COMPANY COULD BE LIABLE FOR AN ASSAULT BY A SECURITY GUARD UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR.
QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN A MINOR LEAK WAS REPAIRED.
THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).
ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CITY AGENCY FAILED TO DEMONSTRATE THE REPORT SOUGHT BY PETITIONERS WAS SUBJECT... ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S...