WASSERMAN SCHNEIDER BABB v. EM INDUSTRIES INC (1997)

Supreme Court, Appellate Division, First Department, New York.

WASSERMAN, SCHNEIDER & BABB, Plaintiff-Respondent, v. EM INDUSTRIES, INC., Defendant-Appellant.

Decided: December 02, 1997

Before MURPHY, P.J., and WALLACH, NARDELLI, TOM and COLABELLA, JJ.

Bradford D. Conover, for Plaintiff-Respondent. John J. Sullivan, for Defendant-Appellant.

Order, Supreme Court, New York County (Paula Omansky, J.), entered August 13, 1996, which granted plaintiff's motion for partial summary judgment as to liability with respect to plaintiff's first cause of action for recovery of legal fees, and denied defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, motion denied and cross motion granted, with costs.

Plaintiff waived the right to payment, based on quantum meruit, alleged in the first cause of action. A presumption that a contingency fee was chosen instead arises from plaintiff's failure to elect a fixed payment at the time of its discharge. Such a presumption is also consistent with plaintiff's conduct after being discharged (Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 660, 602 N.Y.S.2d 788, 622 N.E.2d 288).

The second cause of action fails to plead a cognizable claim for an account stated and we decline to extend leave to amend the complaint.

MEMORANDUM DECISION.

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