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

543
CA 12-02133
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


STEVEN A. RICH, M.D., PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RONALD R. BENJAMIN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LAW OFFICE OF RONALD R. BENJAMIN, BINGHAMTON (MARYA C. YOUNG OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FARACI LANGE, LLP, ROCHESTER (STEPHEN G. SCHWARZ OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County (Craig J.
Doran, A.J.), entered July 16, 2012. The order denied the motion of
defendant for summary judgment dismissing the complaint and granted the
cross motion of plaintiff to compel disclosure.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Defendant, an attorney, orally contracted with
plaintiff to consult on pharmaceutical products liability cases at an
hourly rate of $500 per hour. After the initial $5,000 retainer was
expended, plaintiff invoiced defendant for the services that he had
rendered. Defendant did not pay the invoice, but assured plaintiff that
payment would be forthcoming. After rendering additional consulting
services, plaintiff subsequently invoiced defendant for all services
rendered, but defendant likewise did not pay that invoice. Plaintiff
thereafter commenced this action for, inter alia, breach of contract
seeking damages in the amount stated in the second invoice.

     In appeal No. 1, defendant contends that Supreme Court erred in
denying his motion seeking, inter alia, summary judgment dismissing the
complaint on the ground that he was only an agent to known principals,
i.e., his clients, and thus cannot be held personally liable to plaintiff
for the amounts owed. We reject that contention. “[A]n attorney who, on
his [or her] client’s behalf, obtains goods or services in connection
with litigation [may] be held personally liable unless the attorney
expressly disclaims such responsibility” (Urban Ct. Reporting v Davis,
158 AD2d 401, 402; see 2 NY PJI3d 4:1 at 751 [2013]). Here, the
agreement between the parties was oral and it is disputed whether
defendant “expressly disclaim[ed]” personal liability for the consulting
services rendered by plaintiff (Urban Ct. Reporting, 158 AD2d at 402).
                                 -2-                           543
                                                         CA 12-02133

We thus conclude that a triable issue of fact precludes summary judgment
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).

     In appeal No. 2, we agree with defendant that the court
improvidently exercised its discretion in denying those parts of his
motion to compel plaintiff to disclose items 8 and 9 of defendant’s
demand for production and inspection that pertained to plaintiff’s
experience as an expert in pharmaceutical litigation, including the
retainer agreements and compensation arrangements associated therewith
(see generally Those Certain Underwriters at Lloyds, London v Occidental
Gems, Inc., 11 NY3d 843, 845). Specifically, inasmuch as the factfinder
must determine the meaning of disputed terms of the parties’ agreement
(see Hudak v Hornell Indus., 304 NY 207, 214; Patten v Pancoast, 109 NY
625, 626), we conclude that the documents requested in items 8 and 9 of
defendant’s demand for production and inspection are relevant and must be
disclosed (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407).
We therefore modify the order accordingly. We note that defendant’s
contention regarding item 10 of his demand for production and inspection
is raised for the first time on appeal and thus that portion of his
contention is not properly before us (see generally Ciesinski v Town of
Aurora, 202 AD2d 984, 985). Finally, we note that defendant’s attorney
conceded at oral argument of this appeal that items 4 and 5 of
defendant’s demand for production and inspection are overbroad and unduly
burdensome on plaintiff, and defendant therefore has abandoned any
contentions on appeal with respect to those items (see Ciesinski, 202
AD2d at 985).




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
