Kenechukwu C. Okoli, Plaintiff-Appellant, v. MADUEGBUNA (2009)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 21, 2008, which, in an action between attorneys for breach of an oral fee-sharing agreement, to the extent appealed from, granted defendants' motion to dismiss the first cause of action sounding in contract for failure to state a cause of action, with leave to replead in quantum meruit, unanimously reversed, on the law, with costs, the motion denied and the first cause of action reinstated.   Appeal from order, same court and Justice, entered September 29, 2008, which, to the extent appealed from, denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.

 Plaintiff attorney alleges that he assisted defendants in a contingency fee case for which they paid him 20% of the fee they realized on settlement, in breach of an oral agreement calling for a division of the fee as the parties “had done in the past,” and that in all previous contingency-fee cases procured by defendants on which plaintiff had worked, they had paid him 50% of the fee.   Contrary to the motion court's ruling, the complaint alleges a course of dealing sufficient to establish the terms of the parties' oral contract (see Telecommunications Tech. Corp. v. Deutsche Bank, 235 A.D.2d 288, 652 N.Y.S.2d 291 [1997] ).   Equally unavailing is defendants' argument that the parties' alleged fee-sharing agreement would be void under Code of Professional Responsibility DR 2-107(a)(2) (22 NYCRR 1200.12[a][2] ).   Defendants are also bound by the Code of Professional Responsibility, and cannot avoid a fee-sharing agreement on ethical grounds if they freely agreed to be bound by and received the benefit of same (see Benjamin v. Koeppel, 85 N.Y.2d 549, 556, 626 N.Y.S.2d 982, 650 N.E.2d 829 [1995] ).