[*1]
Kucker & Bruh, LLP v Horing, Welikson & Rosen
2005 NY Slip Op 52053(U) [10 Misc 3d 133(A)]
Decided on December 15, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 15, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DECEMBER 15, 2005 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT December 2005 Term McCooe, J.P., Davis, Gangel-Jacob, JJ.
570662/05

Kucker & Bruh, LLP, Plaintiff-Respondent- Cross-Appellant,No.

against

Horing, Welikson & Rosen, Defendant-Appellant- Cross-Respondent.


Defendant appeals and plaintiff cross-appeals from an order of the Civil Court, New York County (Donna G. Recant, J.), entered on or about September 27, 2004, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment to the extent of directing plaintiff to serve and file an amended summons and complaint upon a "necessary" party.


PER CURIAM

Order (Donna G. Recant, J.), entered on or about September 27, 2004, reversed, with $10 costs, and plaintiff's motion for summary judgment granted. The Clerk is directed to enter judgment in favor of plaintiff in the amount of $10,000.

In settlement of a summary eviction proceeding, a stipulation was entered into by the plaintiff law firm on behalf of the tenant, and the defendant law firm on behalf of the landlord, which provided in part:

The petitioner agrees to deposit $10,000 in the escrow account of petitioner's counsel on or before December 1, 2003. The monies shall be released to the respondent's counsel, Kucker & Bruh, LLP, as attorneys, upon the respondent's surrender.

The tenant timely surrendered the apartment but defendant paid the money to the tenant personally rather than to plaintiff, who now sues defendant to recover $10,000, the amount of the escrow funds.

Plaintiff had a beneficial interest in the escrow fund and the clear language of the settlement required defendant to deliver the fund to plaintiff, which it admittedly failed to do (see [*2]National Union Fire Ins. Co. v. Proskauer Rose Goetz & Mendelson, 165 Misc 2d 539, affd 227 AD2d 106 [1996]).

Plaintiff's retainer agreement with the tenant provided that its fee shall be one-third of any recovery, which includes money "paid to you as well as any waiver of money that you owe." This total exceeded $35,000.00. Accordingly, we award plaintiff a recovery of $10,000, the amount held in escrow.

The tenant is not a necessary party to this action since complete relief may be accorded between the parties herein and the tenant's interest will not be prejudiced or affected by a judgment in this action (see CPLR 1001 [a]).

We have considered defendant's remaining arguments and find them lacking in merit.

This constitutes the decision and order of the court.
Decision Date: December 15, 2005