Bloom v. Hensel

Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered August 6, 2007 in a legal malpractice action. The order granted the motion of defendant Thomas D. Calandra, Esq. for summary judgment dismissing the complaint against him. It is hereby ordered that the order so appealed from is reversed on the law without costs, the motion is denied and the complaint against defendant Thomas D. Calandra, Esq. is reinstated. Memorandum: Plaintiffs commenced this legal malpractice action seeking damages allegedly arising from defendants’ representation of them in a personal injury action. We conclude that Supreme Court erred in granting the motion of defendant Thomas D. Calandra, Esq. seeking summary judgment dismissing the complaint against him. We agree with Calandra that he met his initial burden on the motion by submitting evidence that he did not have an attorney-client relationship with plaintiffs, i.e., that he had no involvement in the personal injury action and he had no fee-sharing agreement with defendant Rene F. Hensel, Esq. with respect to that action (see Rechberger v Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., 45 AD3d 1453 [2007]; Volpe v Canfield, 237 AD2d 282, 283 [1997], lv denied 90 NY2d 802 [1997]). In opposition to the motion, however, plaintiffs raised a triable issue of fact whether they had an attorney-client relationship with Calandra at the time of the alleged malpractice (see Tropp v Lumer, 23 AD3d 550 [2005]; cf. Jane St. Co. v Rosenberg & Estis, 192 AD2d 451 [1993], lv denied 82 NY2d 654 [1993]). “[A]n attorney-client relationship may exist in the absence of a retainer or fee” (Gardner v Jacon, 148 AD2d 794, 795 [1989]) [1027] and, “[i]n determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship” (Wei Cheng Chang v Pi, 288 AD2d 378, 380 [2001], lv denied 99 NY2d 501 [2002]; see McLenithan v McLenithan, 273 AD2d 757, 758-759 [2000]). The unilateral beliefs of plaintiffs, without more, do not render them Calandra’s clients (see e.g. Volpe, 237 AD2d at 283; Jane St. Co., 192 AD2d 451 [1993]). Here, plaintiffs submitted evidence that Calandra referred the personal injury action to Hensel and that plaintiffs met with Hensel in Calandra’s office for the initial meeting and on another occasion as well. Plaintiffs also submitted evidence that Calandra’s staff arranged for the initial meeting, that both defendants met with plaintiffs during that meeting, and that, at the conclusion of the meeting, Hensel stated that “they would call [Robert W. Bloom, Jr. (plaintiff)] ... if they were going to take the case.” In addition, plaintiffs submitted the affidavit of Hensel in which he stated that he had previously engaged in fee-sharing arrangements in several cases referred to him by Calandra and that there was an oral agreement to split the fee with respect to the instant personal injury action. Hensel also stated that Calandra inquired with respect to the progress of the underlying action several times, and plaintiff testified at his deposition that Hensel informed him of that fact. Several of the pleadings or proposed pleadings in the personal injury action list both defendants as plaintiffs’ attorneys, and plaintiffs also submitted evidence establishing that Hensel sent Calandra copies of certain of his correspondence with plaintiffs. Viewed as a whole, we conclude that the evidence submitted in opposition to the motion raises a triable issue of fact whether there was an attorney-client relationship between plaintiffs and Calandra (see Tropp, 23 AD3d 550 [2005]; cf. Jane St. Co., 192 AD2d 451 [1993]). All concur except Peradotto, J., who dissents and votes to affirm in the following memorandum.