FRIEDMAN v. EISENSTEIN

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

Theodore H. FRIEDMAN, Plaintiff-Respondent, v. Jethro M. EISENSTEIN, Defendant-Appellant.

Decided: July 01, 1999

WILLIAMS, J.P., MAZZARELLI, LERNER and BUCKLEY, JJ. Plaintiff-Respondent, Pro Se. Fred R. Profeta, Jr., for Defendant-Appellant.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered October 9, 1998, in an action between former law partners concerning the splitting of a contingency fee earned after the dissolution of their partnership, awarding plaintiff damages with prejudgment interest, unanimously affirmed, without costs.

 We agree with the IAS court that based on the plain terms of the fee-sharing agreement the parties entered into upon dissolving their partnership, and defendant's own description of his services in connection with the case that generated the contingency fee in issue, defendant earned only a 6.5% “preparation fee”, not a 12.5% “trial fee”, and that plaintiff was not required to perform any legal services in that case in order to be entitled to whatever remained of the fee after defendant's 6.5% share.   Prejudgment interest on that remainder dating back to defendant's receipt of the fee was properly awarded.   By statute, in an action for breach of contract, “[i]nterest shall be recovered” and “shall be computed from the earliest ascertainable date the cause of action existed” (CPLR 5001[a],[b] ), the statute making no provision for any delay in the action attributable to the plaintiff.

MEMORANDUM DECISION.