Rich v. Benjamin

Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, A.J.), entered July 16, 2012. The order denied the motion of defendant for summary judgment dismissing the complaint and granted the cross motion of plaintiff to compel disclosure.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant, an attorney, orally contracted with plaintiff to consult on pharmaceutical products liability cases at an hourly rate of $500 per hour. After the initial $5,000 retainer was expended, plaintiff invoiced defendant for the services that he had rendered. Defendant did not pay the invoice, but assured plaintiff that payment would be forthcoming. After rendering additional consulting services, plaintiff subsequently invoiced defendant for all services rendered, but defendant likewise did not pay that invoice. Plaintiff thereafter commenced this action for, inter alia, breach of contract seeking damages in the amount stated in the second invoice.

In appeal No. 1, defendant contends that Supreme Court erred in denying his motion seeking, inter alia, summary judgment dismissing the complaint on the ground that he was only an agent to known principals, i.e., his clients, and thus cannot be held personally liable to plaintiff for the amounts owed. We reject that contention. “[A]n attorney who, on his [or her] client’s behalf, obtains goods or services in connection with litigation [may] be held personally liable unless the attorney expressly disclaims such responsibility” (Urban Ct. Reporting v Davis, 158 AD2d 401 , 402 [1990]; see 2 NY PJI3d 4:1 at 751 [2013]). Here, the agreement between the parties was oral and it is disputed whether defendant “expressly disclaim[ed]” personal liability for the consulting services rendered by plaintiff (Urban Ct. Reporting, 158 AD2d at 402 ). We thus conclude that a triable issue of fact precludes summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]).