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Mainetti & Mainetti v. Brier
Citations: 243 A.D.2d 870; 662 N.Y.S.2d 937; 1997 N.Y. App. Div. LEXIS 10100
Court: Appellate Division of the Supreme Court of the State of New York; October 16, 1997; New York; State Appellate Court
Appeals were filed by the defendants from two rulings of the Supreme Court in Ulster County: (1) a February 1, 1996 order that granted third-party defendant Marino D’Orazio’s cross motion for summary judgment, dismissing the third-party complaint, and (2) a September 13, 1996 judgment in favor of the plaintiff following a trial. In December 1991, defendants engaged D’Orazio and his law firm through a written retainer agreement for representation in a case against Steven Bingaman. D’Orazio later became associated with the plaintiff, and in June 1993, defendants consented to the substitution of the plaintiff as their counsel. Following a trial in November 1993, defendants initially won a judgment, but it was reversed on appeal, leading to a retrial. In January 1994, the plaintiff initiated an action to recover unpaid legal fees from the defendants. The defendants responded, asserting various affirmative defenses, including misrepresentation. Subsequently, the defendant Symbax, Inc. filed a third-party action against D’Orazio, alleging he had misrepresented his qualifications to induce their retention of his services. The Supreme Court denied Symbax's motion to strike the note of issue but granted D’Orazio’s cross motion to dismiss the third-party complaint with prejudice. At trial, the court directed a verdict in favor of the plaintiff on the breach of contract claim, allowing the jury to determine the fee amount, resulting in a judgment of $13,037.54 for the plaintiff. On appeal, the court found that the dismissal of the third-party complaint with prejudice lacked justification and modified the order to dismiss it without prejudice. Additionally, the court recognized an error by the Supreme Court in not allowing the defendants to present evidence supporting their misrepresentation defense. This error, compounded by D’Orazio's statement in front of the jury that the defendants had no defenses, warranted a new trial. Other claims by the defendants were deemed without merit. The decision concluded with the order to reverse the judgment and remand for a new trial, with the plaintiff and D’Orazio having been discharged prior to the appeal.