         10-3163-cv
         Simon v. Sack


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8th day of December, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PETER W. HALL,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       JEAN P. SIMON,
15
16                         Plaintiff-Appellant,
17
18                   v.                                         10-3163-cv
19
20       JONATHAN SACK,
21
22                         Petitioner-Appellee,
23
24       UNUM, UNUM PROVIDENT, PROVIDENT LIFE AND CASUALTY INSURANCE
25       COMPANY, THE PAUL REVERE LIFE INSURANCE COMPANY, FIRST UNUM
26       LIFE INSURANCE COMPANY, PROVIDENT LIFE AND ACCIDENT INSURANCE
27       COMPANY, UNUM PROVIDENT CORPORATION, UNUM GROUP,
28
29                     Defendants.
30       _____________________________________
31
 1   FOR PLAINTIFF-APPELLANT:      Jean P. Simon, pro se,
 2                                 New York, NY.
 3
 4   FOR PETITIONER-APPELLEE:      Jonathan Sack,
 5                                 Sack & Sack, LLP,
 6                                 New York, NY.
 7
 8          Appeal from a judgment of the United States District

 9   Court for the Southern District of New York (Scheindlin,

10   J.).

11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the judgment of the district court is

13   AFFIRMED.

14          Appellant Jean P. Simon, pro se, appeals the district

15   court’s judgment granting Appellee Jonathan Sack’s petition

16   for attorney’s fees in quantum meruit and awarding $89,160

17   in fees, plus prejudgment interest running from October 28,

18   2008, the date of Sack’s discharge.    We assume the parties’

19   familiarity with the underlying facts, the procedural

20   history of the case, and the issues presented for review.

21          We generally review an award of attorney’s fees for an

22   abuse of discretion, see Universal Acupuncture Pain Servs.,

23   P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 262 (2d

24   Cir. 2004), but review a district court’s legal conclusions,

25   such as whether a recovery in quantum meruit is appropriate,

26   de novo, see Pierce v. Underwood, 487 U.S. 552, 558 (1988).



                                     2
 1   [1] Simon challenges the finding that Sack was not

 2   terminated for cause.    Under New York law, a lawyer may be

 3   discharged at any time, with or without cause.    See

 4   Universal Acupuncture, 370 F.3d at 263.    A lawyer discharged

 5   for cause is not entitled to legal fees.    See id.     In this

 6   context, “cause” requires more than simply “[p]oor client

 7   relations, differences of opinion, or personality

 8   conflicts.”    Garcia v. Teitler, 443 F.3d 202, 212 (2d Cir.

 9   2006).   Instead, a client must show “impropriety or

10   misconduct on the part of the attorney.”    Id.   A lawyer who

11   is discharged without cause prior to the conclusion of the

12   case may recover in quantum meruit the fair and reasonable

13   value of the services rendered.    Universal Acupuncture, 370

14   F.3d at 263.    This is true even if the attorney was

15   initially employed under a contingent fee contract.      Id.

16       The district court’s conclusion that Simon did not

17   discharge Sack for cause was based on its factual finding

18   that Simon’s testimony as to the events surrounding Sack’s

19   termination lacked credibility, was unsupported in the

20   record, and was manufactured in order to avoid paying

21   attorney’s fees.    On appeal, such credibility determinations

22   are entitled to deference, see Phoenix Global Ventures, LLC

23   v. Phoenix Hotel Assocs., 422 F.3d 72, 76 (2d Cir. 2005)


                                    3
 1   (per curiam), and Simon has not directed our attention to

 2   evidence undercutting the district court’s credibility

 3   determination, nor has he left us with a “definite and firm

 4   conviction that a mistake has been committed.”     Drake v.

 5   Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) (internal

 6   quotation mark omitted).

 7   [2] Simon argues that a New York attorney may not recover

 8   in quantum meruit absent the required “letter of

 9   engagement.”   See N.Y. Comp. Codes R. & Regs. tit. 22,

10   § 1215.1.   While Simon takes issue with various cases cited

11   by both Sack and the district court on this issue, Simon has

12   not directed our attention to any controlling New York case

13   holding that an attorney who violates the letter of

14   engagement rule may not recover in quantum meruit.     Indeed,

15   the weight of New York authority suggests the opposite.

16   See, e.g., Roth Law Firm, PLLC v. Sands, 920 N.Y.S.2d 72, 73

17   (N.Y. App. Div. 2011) (“Plaintiff’s failure to comply with

18   the letter of engagement rule does not preclude it from

19   seeking recovery of legal fees under such theories as

20   services rendered, quantum meruit, and account stated.”

21   (internal citations omitted)); Kramer Levin Naftalis &

22   Frankel LLP v. Canal Jean Co., Inc., 900 N.Y.S.2d 646, 646

23   (N.Y. App. Div. 2010) (“Nor does [a law firm’s] failure to


                                   4
 1   provide a written retainer agreement, as required by 22

 2   NYCRR 1215.1, bar its claims for account stated . . . .”);

 3   Miller v. Nadler, 875 N.Y.S.2d 461, 462 (N.Y. App. Div.

 4   2009) (“Plaintiff’s failure to comply with the rules on

 5   retainer agreements (22 NYCRR 1215.1) does not preclude it

 6   from suing to recover legal fees for the services it

 7   provided.” (internal citations omitted)).   Accordingly, we

 8   find no error in the district court’s conclusion that Sack

 9   was entitled to quantum meruit recovery in the absence of a

10   letter of engagement.

11   [3] In determining that $89,160 represented the fair and

12   reasonable value of the services rendered, the district

13   court properly considered the quality of the services

14   provided by Sack and his firm, the amount Sack would have

15   received under the original contingent-fee agreement, and

16   Sack’s detailed testimony about the extent of the services

17   his firm provided and the amount of time expended in

18   performing those services.   See Sequa Corp. v. GBJ Corp.,

19   156 F.3d 136, 148 (2d Cir. 1998) (“Among the factors to be

20   considered in [ascertaining the reasonable value of services

21   rendered] are the difficulty of the matter, the nature and

22   extent of the services rendered, the time reasonably

23   expended on those services, the quality of performance by


                                   5
 1   counsel, the qualifications of counsel, the amount at issue,

 2   and the results obtained (to the extent known).”).     Although

 3   Simon contends on appeal that Sack’s failure to maintain

 4   contemporaneous time records forecloses his fee claim as a

 5   matter of law, “New York courts have specifically rejected

 6   the hard and fast rule that reconstructed time records can

 7   never serve as a basis for compensation in favor of wider

 8   trial court discretion in evaluating fee petitions.”

 9   Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53

10   (2d Cir. 1992) (internal quotation marks omitted).

11   [4] Simon challenges the district court’s calculation of

12   prejudgment interest from the date of Sack’s October 2008

13   termination rather than the date of the October 2009

14   settlement.   We review a district court’s decision to award

15   prejudgment interest, as well as the determination of the

16   date from which such interest accrues, for abuse of

17   discretion.   See U.S. Fid. & Guar. Co. v. Braspetro Oil

18   Servs. Co., 369 F.3d 34, 81 (2d Cir. 2004); New England Ins.

19   Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599,

20   602-03 (2d Cir. 2003).   Here, the district court’s decision

21   to impose prejudgment interest at New York’s statutory rate

22   from the date on which Sack was discharged was appropriate.

23   See N.Y. C.P.L.R. § 5001(b) (“Interest shall be computed


                                   6
 1   from the earliest ascertainable date the cause of action

 2   existed . . . .”); Universal Acupuncture, 370 F.3d at 263

 3   (“Under New York law, a lawyer’s right to recover in quantum

 4   meruit accrues immediately upon discharge.”).   Moreover,

 5   Simon’s reliance on Klein v. Eubank, 693 N.Y.S.2d 541, 543

 6   (N.Y. App. Div. 1999), which held that the date of

 7   settlement, rather than the date of the attorney’s

 8   termination, is the date on which prejudgment interest

 9   should run, is not persuasive in light of New York Court of

10   Appeals precedent suggesting that an attorney’s quantum

11   meruit cause of action comes into existence at the time of

12   discharge.   See Cohen v. Grainger, Tesoriero & Bell, 622

13   N.E.2d 288, 290 (N.Y. 1993) (“[A] discharged attorney may

14   recover the ‘fair and reasonable value’ of the services

15   rendered, determined at the time of discharge and computed

16   on the basis of quantum meruit.” (internal citations

17   omitted)); Lai Ling Cheng v. Modansky Leasing Co., 539

18   N.E.2d 570, 573 (N.Y. 1989) (holding that “[i]mmediately

19   upon his discharge, [an attorney] was entitled to be

20   compensated in a fixed dollar amount, quantum meruit”);

21   Tillman v. Komar, 181 N.E. 75, 76 (N.Y. 1932) (holding that

22   “[o]n the termination of the contract of retainer a cause of

23   action for the reasonable value of his services immediately


                                   7
 1   accrued to the attorney” and therefore “[s]ince he is

 2   entitled at the present time to enforce his claim by action,

 3   he need not . . . be compelled to await the outcome of the

 4   litigation from which he has been displaced”); see also

 5   Ballow Brasted O’Brien & Rusin P.C. v. Logan, 435 F.3d 235,

 6   242 n.7 (2d Cir. 2006) (“On a question of New York law, we

 7   are not bound by a decision of the Appellate Division if we

 8   have persuasive evidence that the New York Court of Appeals

 9   would reach a different conclusion.” (internal quotation

10   marks omitted)).

11   [5] Finally, Simon argues that the district court forced

12   him to proceed pro se in the summary judgment proceedings

13   when it denied his potential counsel’s request for a

14   continuance to file an opposition to Sack’s motion.     We

15   review a district court’s denial of a continuance for abuse

16   of discretion and affirm “unless there is a showing both of

17   arbitrariness and of prejudice” to the moving party.     Farias

18   v. Instructional Sys. Inc., 259 F.3d 91, 99-100 (2d. Cir.

19   2001).

20       Here, Simon fails to establish either.   The continuance

21   ruling did not prejudice Simon because the district court

22   denied Sack’s summary judgment motion after determining that

23   there were disputed issues of material fact and that a


                                  8
 1   hearing was necessary.   Nor was the decision arbitrary.

 2   Simon had notice of the fee dispute well in advance of the

 3   filing of Sack’s summary judgment motion, and had ample time

 4   to retain an attorney to handle the litigation.

 5   Accordingly, there was no abuse of discretion in the denial

 6   of the continuance request.

 7       We have considered all of Simon’s remaining arguments

 8   and find them to be without merit.    Accordingly, we AFFIRM

 9   the judgment of the district court.

10
11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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