Masood Nabi, Plaintiff–Appellant, v. Derek S. Sells, et al., Defendants–Respondents.

Reset A A Font size: Print

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

Masood Nabi, Plaintiff–Appellant, v. Derek S. Sells, et al., Defendants–Respondents.


Decided: March 29, 2011

Mazzarelli, J.P., Saxe, Renwick, DeGrasse, Richter, JJ. The Abramson Law Group, PLLC, New York (Robert Frederic Martin of counsel), for appellant. Rosato & Lucciola, P.C., New York (Donald D. Casale of counsel), for respondents.


Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 25, 2010, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment on their first counterclaim for legal fees and damages, granted defendants' request for a hearing on the amount of fees to which they are entitled based on quantum meruit, and denied plaintiff's cross motion for partial summary judgment dismissing defendants' first counterclaim, unanimously affirmed, without costs.

The IAS court properly found that plaintiff failed to raise a triable issue of fact as to whether he discharged defendants for cause.   Plaintiff's dissatisfaction with the reasonable strategic choices that his attorney made in an attempt to reach a satisfactory settlement through mediation does not constitute discharge for cause (see Callaghan v. Callaghan, 48 AD3d 500, 501 [2008] ).   Plaintiff's argument that counsel entered into an enforceable settlement agreement on his behalf without his consent is belied by the record.   The alleged agreement plaintiff claims was enforceable was never signed by the parties or filled in with sufficiently definite terms as to payment (see United Press v. New York Press Co., 164 N.Y. 406, 410 [1900] ).   Plaintiff's reliance on statements made by the parties during mediation is unavailing.   The settlement agreement signed by the parties provided that any statements or “promises” made during mediation were “without prejudice to any party's legal position.”   There is also no evidence that defendants prolonged the mediation process longer than necessary.

We have considered plaintiff's remaining arguments and find them unavailing.