This is a proceeding to settle Claudette James's account as executor of the decedent's estate. The decedent died on November 14, 2017, and by decree dated July 25, 2018, letters testamentary issued to petitioner. After a compulsory accounting proceeding, petitioner filed a final account and citation issued on June 24, 2024. An amended accounting was filed on January 27, 2025. Relevant to the motion and cross-motion sub judice, Schedule D-3 of petitioner's account reflects a rejected claim in the amount of $195,762.50 from Alaba Rufai, Esq. for legal services provided to the decedent.

Objections to the accounting were filed by Alaba Rufai, Esq. ("Rufai") on September 18, 2024. Rufai maintains that he represented the decedent in several foreclosure actions and appeals pertaining to real property located at 119-47 166th Street, Jamaica, New York and is owed the above sum for said services.

By way of relevant background, on May 29, 2002, the decedent and his late wife, Lydia James, were lured into transferring title to the subject property to Odra Arango ("Arango") by A&A Global Resources, Inc. ("AAGR"), an organization that promised to help them avoid losing their home in a foreclosure action. At the closing, Arango executed two mortgage loans, with a total principal balance of $245,000.00. Decedent, in return, was to pay AAGR a monthly rent of $1,885.00 to cover the mortgage payments. AAGR made representations that the decedent and his family would remain in the subject property, and that a deed would be transferred back to the decedent at a future date.

Arango deliberately did not make the monthly mortgage payments, and a foreclosure action was commenced. Litigation ensued, and ultimately, by Order dated April 20, 2005, a judgment was obtained against Arango, quieting title in favor of the decedent.

A second state court action was commenced seeking to void the mortgages encumbering the subject property. Rufai who represented the decedent in these actions alleges that his prosecution of the state court actions and related appeals directly led to a settlement agreement, [*2]pursuant to which the decedent's title was reinstated and the mortgage liens were canceled in exchange for the withdrawal of the appeals and discontinuance of the two state court actions. Petitioner's sale of the subject property ultimately resulted in the net gain of $563,220.65.

Rufai also alleges that his involvement in a federal action directly led to a judgment in favor of the decedent and against Arango in the amount of $134,539.99 on September 23, 2011.

Rufai now moves for summary judgment, seeking approval of his claim for legal fees with pre-judgment interest, and for a judgment pursuant to Judiciary Law 475 to enforce his charging lien. Rufai also seeks a declaration that petitioner and her attorney breached their respective fiduciary duties and requests punitive damages.

Petitioner has cross-moved for summary judgment rejecting Rufai's claim or, in the alternative, an Order pursuant to CPLR 2201 staying the proceedings pending Rufai's appeal of a Supreme Court Decision, Order, and Judgment, dismissing his Judiciary Law 475 petition (see Rufai v James, Sup Ct, Queens County, October 29, 2024, Culley, J., index No. 721957/24).

The proponent of a summary judgment motion must demonstrate a prima facie entitlement of summary judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The evidence submitted in support of the motion must be viewed in the light most favorable to the non-moving party (see Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]).

In support of his summary judgment motion, Rufai submits, inter alia, an unsigned draft of the retainer agreement; his claim submitted to petitioner with his contemporaneous time records; his statement of cost, disbursement, and receipt; his attorney fee demand letter with notice of client's right to arbitrate; a receipt from Best Buy, purportedly demonstrating that his external hard drive was damaged and irreparable; and invoices sent to the decedent. Based on the documents submitted, Rufai contends that his claim in the amount of $196,762.50 for legal services rendered to the decedent should be approved on the grounds of breach of contract, quantum meruit, unjust enrichment, and conversion.

In opposition, petitioner submits an affidavit; the transcript of her SCPA 2211 examination taken on February 7, 2025; this Court's decision denying Rufai's Judiciary Law 475 petition; the decision and order of the Supreme Court, Queens County, dismissing Rufai's Judiciary Law 475 petition; and a NYSCEF document list for the Supreme Court, Queens County proceeding, demonstrating that an appeal of the Supreme Court Order was filed.

Petitioner initially argues that since Rufai cannot produce a valid executed retainer agreement, there was no contract, and, therefore, the claim must be disallowed.

It has been held that the failure of an attorney to comply with the requirements of 22 NYCRR 1215.1 bars the attorney from recovering any unpaid legal fees pursuant to a cause of action for breach of contract (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54 [2d Dept 2007]). However, it is well settled that an attorney's "failure to comply with the letter of the engagement rule (22 NYCRR 1215.1) does not preclude [an attorney] from seeking recovery of legal fees under such theories as services rendered, quantum meruit, and account stated" (Roth Law Firm, PLLC v Sands, 82 AD3d 675, 676 [1st Dept 2011]; see Jaffe Ross & Light, LLP v Mann, 121 AD3d 480 [1st Dept 2014]). "The elements of a cause of action sounding in quantum meruit are [*3](1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered" (Evans-Freke v Showcase Contracting Corp., 85 AD3d 961, 962 [2d Dept 2011]). In determining the reasonableness of the fees, the court should consider all relevant factors, including: (i) the size of the estate; (ii) the difficulty of the questions presented; (iii) the skill required; (iv) the professionals' experience, ability and reputation; (v) the responsibilities involved; and (vi) the benefit resulting to the estate from the services rendered (see Matter of Freeman, 34 NY2d 1 [1974]).

Here, while Rufai has not produced a signed retainer agreement, based on the documents submitted, including, but not limited to the filings from the court proceedings pertaining to the subject property, the email exchanges with the mortgagee's attorney, and the demand letter dated May 1, 2017 from Rufai to the decedent, indicating total legal fees due in the amount of $194,366.67, the Court finds that it should award fees on a quantum meruit basis and that Rufai's claim should be addressed on its merits notwithstanding the lack of a retainer agreement.

Turning to the merits of the motion and cross-motion, it is clear Rufai established that he provided legal services in good faith, that the decedent accepted the services, and that claimant expected to be paid for services rendered as fully set forth in the demand letter. Moreover, petitioner admits that legal services were performed, that the decedent accepted them, and that Rufai expected to be paid (see James Tr at 25-29).

In her affidavit in opposition, petitioner affirms that Rufai's claim "has been rejected by the decedent during his lifetime as well as by the executrix." To support such contention, petitioner submits a copy of the transcript of her SCPA 2211 examination taken on February 7, 2025 wherein she testified that the decedent told her he did not owe Rufai, and he had receipts in a box as proof of payment (see James Tr at 25-29). Although a demand for the receipts was made, petitioner never provided proof of payment. Additionally, while petitioner repeatedly claims that Rufai and the decedent did not have an attorney-client relationship, petitioner admits that the decedent tendered at least some payments to Rufai as attorney. Lastly, to the extent petitioner claims that Rufai's work did not result in any tangible benefits, such is belied by Rufai's contemporaneous time records, the court filings, and the ultimate disposition of the litigation.

In sum, petitioner's statements in opposition to the summary judgment fall far short of proof that would raise an issue of fact that Rufai is not entitled to a fee.

Rufai also established a reasonable value of the services provided by submitting his contemporaneous time records, spanning thirteen years of litigation, indicating he performed a total of 783.05 hours of legal work for the decedent; the retainer agreement stating an hourly rate of $250.00; the fee demand letter mailed to the decedent who never objected to setting legal fees due in the amount of $194,366.67; and, inter alia, documents demonstrating the overwhelmingly successful results obtained, to wit, obtaining the return of title to the decedent free and clear of all mortgages. The Court, in considering the factors set forth in Matter of Potts, 213 AD 59 [4th Dept 1925] affd 241 NY 593 [1925] and Matter of Freeman, 34 NY2d 1 [1974], sets Rufai's fee in the sum of $194,366.67.

Accordingly, as the branch of the summary judgment motion seeking approval of Rufai's claim as set forth above is granted, the branch of the cross-motion for summary judgment in [*4]favor of petitioner and against Rufai is denied.

Based on the above, the branch of the motion seeking judgment based on a breach of contract is denied as Rufai has not, prima facie, shown the existence of an executed contract, i.e. a retainer. The branches of the motion based on unjust enrichment and conversion are denied as moot.

Regarding the request for prejudgment interest, CPLR 5001(a) provides that "[i]nterest shall be recovered upon a sum awarded because of a breach of performance of a contract . . . except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion." (CPLR 5001). The statute on its face clearly provides that the court has discretion to award interest in an action that is equitable in nature. However, case law in this Department holds that an award of interest pursuant to CPLR 5001 on a damages award on a cause of action to recover damages under a quantum meruit theory is mandatory (see Tesser v Allboro Equip. Co., 73 AD3d 1023 [2d Dept 2010]; Brent v Kessler, 32 AD2d 804 [2d Dept 1969]).

Were the court to exercise its discretion in the manner as set forth in the statute, it would be inclined to reduce the amount or rate of interest since an award of statutory interest will cause Rufai's recovery to reduce estate assets almost to the point of insolvency. Although Rufai's action and recovery is equitable in nature, it actually appears inequitable that payment for counsel's services designed to provide recovery for the estate beneficiaries will result in extremely minimal gains for his clients after years of delay. On its face, it is unjust and counterintuitive that legal fees to counsel in an estate matter should outweigh distributions to the estate beneficiaries. However, precedent in the First and Second Departments as opposed to the Third and Fourth Departments, is clear that prejudgment interest on quantum meruit awards is mandatory (see Davidoff Hutcher & Citron LLP v Smirnov, 145 AD3d 448 [1st Dept 2016]; TY Elec. Corp. v DelMonte, 101 AD3d 1626 [4th Dept 2012]; Crane-Hogan Structural Sys., Inc. v State of New York, 88 AD3d 1258 [4th Dept 2011]; Tesser v Allboro Equip Co., 73 AD3d 1023 [2d Dept 2010]; Precision Founds. v Ives, 4 AD3d 589 [3d Dept 2004]; Ogletree, Deakins, Nash, Smoak & Stewart v Albany Steel, 243 AD2d 877 [3d Dept 1997]).

In any event, petitioner does not oppose this branch of the motion.

Accordingly, Rufai is awarded prejudgment statutory interest pursuant to CPLR 5004 from the date of demand on May 9, 2017.

Turning to that branch of Rufai's motion seeking enforcement of his charging lien, Judiciary Law 475 grants a charging lien to an attorney for the collection of his fee from the moneys recovered on behalf of his client. This lien is a preferred debt with priority over the claims of all general and judgment creditors. Here, the charging lien attached to the subject property notwithstanding the change in form after the sale of the subject property (see Tunick v Shaw, 45 AD3d 145 [1st Dept 2007]).

In opposition to this branch of the motion, petitioner merely states that Rufai's application was already denied twice; once by this Court and once by the Queens County Supreme Court. However, the denials were procedural in nature and neither court addressed the merits of Rufai's petition. Therefore, these rulings are not res judicata as to the issue.

Accordingly, Rufai is entitled to enforcement of his lien, and his claim for fees and disbursements shall be satisfied in advance of all other creditor's claims (see Estate of Tella, 144 [*5]Misc 2d 570 [Sur Ct, Suffolk County 1989]).

The branch of Rufai's motion seeking punitive damages is denied. The allegations set forth in the motion papers do not establish that petitioner acted with the high degree of moral culpability required to justify an award of punitive damages (see Farm Stores, Inc. v School Feeding Corp, 102 AD2d 249 [2d Dept 1984]). Additionally, the alleged conduct does not jeopardize the public or public policy. Rather the allegations allege a private wrong and are, therefore, insufficient to support a claim for punitive damages (see Aronis v TLC Vision Ctrs. Inc., 49 AD3d 576 [2d Dept 2008]).

Likewise, the branch of the motion seeking a declaration that petitioner and her attorney breached their fiduciary duty owed to Rufai is denied. Every fiduciary has the right and responsibility to examine claims to protect estate assets. The mere fact that Rufai was successful in validating his claim does not automatically constitute a breach of fiduciary duty towards him and in light of the Court's decision in the companion motion, holding that commissions are denied, such a finding is unnecessary (see EPTL 11-1.1; SCPA 1806).

Lastly, the branch of petitioner's cross-motion seeking a stay of these proceedings pending the appeal filed by Rufai is denied. CPLR 2201 provides that "[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just". The affirmation submitted in support of the cross-motion is devoid of any reason for a stay of this proceeding. Additionally, a stay of an action is a drastic remedy (see Tucker v Hicks, 2022 NY Misc LEXIS 58435 [Sup Ct, Kings County 2022]).

In conclusion, the motion is granted to the extent that the claim of Alaba Rufai, Esq. for legal services rendered to the decedent is approved in the amount of $194,366.67 with statutory interest from May 9, 2017, which shall be satisfied in advance of all other creditor's claims.

The cross-motion is denied in its entirety.

Settle Order.