        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

80
CA 13-01158
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


DONALD E. KEINZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PETER M. HOBAICA, LLC, DEFENDANT-RESPONDENT.


KERNAN AND KERNAN, P.C., UTICA (LEIGHTON R. BURNS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PETER M. HOBAICA, LLC, UTICA (ROBERT F. JULIAN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Oneida County (Norman I. Siegel, J.), entered September 6, 2012. The
judgment, among other things, dismissed the amended complaint after a
bench trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reinstating the amended complaint
insofar as it seeks declaratory relief and granting judgment in favor
of defendant as follows:

          It is ADJUDGED and DECLARED that, as of June 22, 2010,
     defendant is no longer obligated to pay, as set forth in
     paragraph two of the parties’ agreement dated November 2,
     2006, any portion of fees earned,

and as modified the judgment is affirmed without costs.

     Memorandum: Defendant purchased plaintiff’s law practice
pursuant to the parties’ agreement dated November 2, 2006 (agreement).
On June 22, 2010, plaintiff resigned from the practice of law (Matter
of Keinz, 75 AD3d 1113, 1113), and defendant thereafter ceased making
certain payments under the agreement. Plaintiff commenced this action
seeking a judgment declaring that defendant is obligated to pay
plaintiff, in accordance with the agreement, 50% of the net income
derived by defendant from clients of plaintiff’s former firm.
Plaintiff amended his complaint to assert a second cause of action for
reformation of the agreement to reflect that the payments at issue
were part of the purchase price of the practice, not an agreement to
share fees.

     We conclude that Supreme Court properly resolved the merits of
the first and second causes of action in favor of defendant, but erred
                                 -2-                            80
                                                         CA 13-01158

in dismissing the amended complaint insofar as it seeks declaratory
relief “rather than declaring the rights of the parties” (Alexander v
New York Cent. Mut., 96 AD3d 1457, 1457; see Maurizzio v Lumbermens
Mut. Cas. Co., 73 NY2d 951, 954). We therefore modify the judgment
accordingly.

     The court’s determination that the payments at issue were part of
a fee sharing arrangement, rather than a portion of the purchase price
of plaintiff’s former practice, is consistent with “a fair
interpretation of the evidence” (Matter of City of Syracuse Indus.
Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170), and we see no reason to
disturb that determination. Furthermore, because plaintiff resigned
from the practice of law, he is no longer permitted to “share in any
fee for legal services rendered by another attorney during the period
of . . . removal from the roll of attorneys” (22 NYCRR 1022.27 [e]).
The provision of the agreement providing for the payments at issue is
therefore not binding (cf. Padilla v Sansivieri, 31 AD3d 64, 66-67).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
