BRUK v. ALBIN

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

Benjamin BRUK, appellant, v. Lee ALBIN, et al., respondents.

Decided: March 27, 2000

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN and DANIEL F. LUCIANO, JJ. Delice Seligman, Kingston, N.Y., for appellant. Albin & Richman, P.C., Garden City, N.Y. (Keith H. Richman, pro se, of counsel), for respondents.

In an action for a judgment declaring that a mortgage and bond held by the defendants as security for the payment of attorneys' fees are invalid, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Gewanter, J.), entered May 24, 1999, which, after a nonjury trial, is in favor of the defendants on their counterclaim in the principal sum of $41,855.

ORDERED that the judgment is modified, by adding thereto a provision declaring that the mortgage and bond held by the defendants as security for the payment of attorneys' fees are invalid;  as so modified, the judgment is affirmed insofar as appealed from, with costs.

 Contrary to the appellant's contention, the Supreme Court properly found the testimony of the defendant Lee Albin to be credible.   Since the Supreme Court had the advantage of seeing and hearing the witnesses, its determination of credibility should not be disturbed (see, New Day Bldrs. v. SJC Realty, 219 A.D.2d 623, 631 N.Y.S.2d 707;  Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494, 474 N.Y.S.2d 699, 463 N.E.2d 15;  Harrison v. Rubenfeld, 211 A.D.2d 698, 621 N.Y.S.2d 648).

 The Supreme Court properly found that the appellant did not discharge the respondents, who are attorneys, for cause.   Contrary to the appellant's conclusory assertions, there was no evidence of any statement of dissatisfaction with the respondents' efforts prior to the discharge.   The only disputed matters were the charging of certain fees (see, Matter of New York State Urban Dev. Corp. [42nd St. Dev. Project], 215 A.D.2d 310, 626 N.Y.S.2d 799;  Artache v. Goldin, 173 A.D.2d 667, 570 N.Y.S.2d 238).   Where an attorney is discharged without cause before the completion of services, the attorney is entitled to recover in quantum meruit the reasonable value of the services rendered as of the time of the discharge (see, Campagnola v. Mulholland Minion & Roe, 76 N.Y.2d 38, 43-44, 556 N.Y.S.2d 239, 555 N.E.2d 611;  Teichner v. W & J Holsteins, 64 N.Y.2d 977, 979, 489 N.Y.S.2d 36, 478 N.E.2d 177;  Markard v. Markard, 263 A.D.2d 470, 692 N.Y.S.2d 733;  Matter of Leopold, 244 A.D.2d 411, 664 N.Y.S.2d 323).

The Supreme Court providently exercised its discretion in denying the appellant's request for an adjournment (cf., Matter of Dashaun W., 266 A.D.2d 465, 698 N.Y.S.2d 700).

The appellant's remaining contentions are either raised for the first time on appeal and therefore have not been considered (see, Tursi v. Perla, 241 A.D.2d 518, 663 N.Y.S.2d 984), or without merit.

 We note that since this is a declaratory judgment action, the judgment must contain a provision declaring that the mortgage and bond held by the defendants as security for the payment of attorneys' fees are invalid, based upon the order of the Supreme Court, Nassau County (Bucaria, J.), dated March 18, 1998, which granted the plaintiff's motion for summary judgment on the complaint (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

MEMORANDUM BY THE COURT.

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