IN RE: Application of Joseph V. D'AMICO (1999)

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

IN RE: Application of Joseph V. D'AMICO, etc, Estate of May L. Davis, Deceased. Joseph V. D'Amico, Petitioner-Appellant, Cecil Robbins, et al., Coexecutors-Respondents.

Decided: March 18, 1999

ROSENBERGER, J.P., WILLIAMS, TOM and MAZZARELLI, JJ.

Joseph V. D'Amico, Pro Se. Harry Amer, for Executors-Respondents.

Order, Surrogate's Court, Bronx County (Lee Holzman, S.), entered September 11, 1998, which, in a proceeding by petitioner attorney against respondents co-executors to recover a legal fee, denied petitioner's motion for summary judgment and granted respondents' cross motion for summary judgment dismissing the claim, unanimously affirmed, without costs.

Petitioner's claim of unjust enrichment was properly rejected in view of his concession that his agreement to perform legal services for respondents was made exclusively with respondents' attorney of record, and that he never spoke with respondents about his fee and was never listed as attorney of record. It is not enough that respondents received a benefit from petitioners' services; if such were performed at the behest of someone other than respondents, petitioner must look to that person for recovery (Kagan v. K-Tel Entertainment, 172 A.D.2d 375, 376, 568 N.Y.S.2d 756).

MEMORANDUM DECISION.

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