Practice point: Defendant is trustee of a family trust, the beneficiaries of which retained plaintiff-firm to handle intellectual property matters. The Appellate Division found that, contrary to the motion court's ruling, there was a valid fee
agreement between plaintiff and the Trust. The better practice would
have been to send the engagement letter to the trustee, rather than only
to the beneficiaries. However, the record, including email exchanges
between the trustee and plaintiff, shows that the trustee was well aware
of and approved of the beneficiaries' authority to act on the Trust's
behalf with regard to plaintiff's retainer and representation. It is irrelevant that the original engagement letter was not signed by the client, pursuant to 22 NYCRR 1215.1[a].
The Appellate Division also found that defendant's timely written objection to one invoice creates triable
issues of fact as to the amount due under that invoice only. Defendant's
oral and undocumented objections to the remaining bills do not suffice
to create triable issues as to the remaining amount owed. What is more, the Trust made partial payments to plaintiff throughout plaintiff's representation.
Student note: As to the counterclaim, the Appellate Division found that, even if plaintiff's failure to complete a chain-of-title report or to resolve the underlying intellectual property disputes before
withdrawing, amounts to negligence, the Trust failed to demonstrate
causation. The Trust failed to show how it would have successfully
opposed the underlying trademark cancellation proceeding, or would
otherwise have protected its intellectual property rights, but for
plaintiff's omissions.
In addition, the resulting inability to efficiently market the
trademarks is too speculative to constitute the actual ascertainable
damages required to support the counterclaim.
Case: Fross, Zelnick, Lehrman & Zissu, P.C. v. Geer, NY Slip Op 06547 (1st Dept. 2014)
Here is the decision.
Monday's issue: Summary judgment on breach of contract and account stated.
