         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1505
CA 10-00401
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.


WILLIAM E. BURKHART, JR.,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STEVEN V. MODICA, J. MICHAEL WOOD,
CHAMBERLAIN, D’AMANDA, OPPENHEIMER AND
GREENFIELD, LLP, DEFENDANTS-RESPONDENTS,
AND MERCURY PRINT PRODUCTIONS, INC.,
DEFENDANT-RESPONDENT-APPELLANT.


WILLIAM E. BURKHART, JR., ROCHESTER, PLAINTIFF-APPELLANT-RESPONDENT
PRO SE.

HARTER SECREST & EMERY LLP, ROCHESTER (F. PAUL GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (ERICA M. DIRENZO OF COUNSEL), FOR
DEFENDANT-RESPONDENT STEVEN V. MODICA.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (PAUL G. FERRARA OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS J. MICHAEL WOOD AND CHAMBERLAIN,
D’AMANDA, OPPENHEIMER AND GREENFIELD, LLP.


     Appeal and cross appeal from an order of the Supreme Court, Wayne
County (John B. Nesbitt, A.J.), entered November 5, 2009. The order
granted the motions of defendants to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed with costs and the matter is remitted to Supreme
Court, Wayne County, for further proceedings in accordance with the
following Memorandum: Plaintiff attorney previously represented
William H. Bolia in an action in the United States District Court for
the Western District of New York entitled Bolia v Mercury Print
Productions, Inc. (hereafter, federal action). At a settlement
conference on December 7, 2005 in the federal action, it became
apparent to the District Court that plaintiff’s paramount concern was
that he would receive payment for attorney fees in the amount of
$160,000, allegedly earned by plaintiff in representing Bolia. The
record establishes that the District Court considered that fee to be
far in excess of the reasonable settlement value of the case, and the
District Court therefore sent a letter to plaintiff and another
attorney who had appeared for Bolia expressing its concern on the
issue whether Bolia’s interests were being adequately represented, in
                                 -2-                          1505
                                                         CA 10-00401

light of plaintiff’s fee demand. Bolia thereafter retained defendant
Steven V. Modica to represent him in place of plaintiff, and the
federal action was settled with defendant Mercury Print Productions,
Inc. (Mercury) for $60,000, a sum that was deemed to include any claim
for attorney fees. Mercury was represented in the federal action by
two of the defendants in this action, J. Michael Wood and the law firm
of Chamberlain, D’Amanda, Oppenheimer and Greenfield, LLP. As a
result of the settlement, Bolia executed a general release and waiver
on January 3, 2006 in favor of Mercury and, inter alia, its employees
and agents.

     Plaintiff filed a notice of lien dated December 30, 2005 against
the settlement proceeds in the federal action pursuant to 28 USC §
1367 and Judiciary Law § 475, alleging that he was discharged without
cause, and he thereafter filed a petition to enforce the lien. He
contended therein that, inter alia, he was entitled to judgment for
services rendered as the attorney for Bolia. Upon concluding that
plaintiff had thereby invoked the jurisdiction of the court pursuant
to Judiciary Law § 475, the District Court referred the fee dispute to
a federal magistrate judge to conduct a hearing and to issue a report
and recommendation concerning whether plaintiff was, inter alia,
“entitled to any fees and/or disbursements, and if so, the amounts to
which [he] is entitled.” Following a hearing, the Magistrate Judge
determined that plaintiff was not entitled to any fees for
representing Bolia in the federal action because plaintiff “placed his
personal interest in collecting a fee ahead of his client’s desire to
obtain a fair and reasonable settlement and failed to keep his client
informed of the fees and expenses he was charging his client in
violation of the parties’ retainer agreement.” The Magistrate Judge
further ordered that any objections to his Report and Recommendation
must be filed within 10 days of the receipt of a copy thereof, and
that “[f]ailure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court’s Order” adopting the Report and Recommendation. Bolia
and plaintiff subsequently settled their fee dispute for the sum of
$8,750, and they each executed general releases. In June 2006 the
District Court issued an order dismissing the federal action with
prejudice.

     Plaintiff commenced the instant action in December 2008 asserting
causes of action based on, inter alia, Judiciary Law § 487 (1) and §
475 and seeking to recover damages based on allegations that he was
unlawfully deprived of the attorney fees he claimed to have earned as
a result of his representation of Bolia in the federal action.

     We reject plaintiff’s contention that Supreme Court erred in
granting the pre-answer motions of all defendants and we further agree
with the court that the instant action is wholly frivolous, warranting
the imposition of sanctions for commencing it. Plaintiff had a full
and fair opportunity to litigate any claim for attorney fees in the
federal action before the Magistrate Judge, although the claim was
ultimately settled. Plaintiff is thus barred by the doctrine of
collateral estoppel from relitigating that claim in the instant
action, inasmuch as that doctrine “precludes a party from raising, in
                                 -3-                          1505
                                                         CA 10-00401

subsequent litigation, any issue that was decided in prior litigation
so long as the issue was necessarily determined in the prior
litigation and the party to be estopped had a full and fair
opportunity to litigate the issue” (Tuper v Tuper, 34 AD3d 1280, 1282;
see Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US 1096).
In any event, we conclude that plaintiff’s claims in this action are
barred by the general releases that he and Bolia executed in settling
the federal action, both of which included their respective claims for
attorney fees.

     Finally, we note that, in granting defendants’ pre-answer motions
to dismiss the instant complaint, the court ordered plaintiff to pay
defendants’ costs incurred in defending this action, including the
costs incurred with respect to the pre-answer motions. We further
note that, although the court ordered that plaintiff pay sanctions to
defendants, the court failed to specify the amount of such sanctions.
Inasmuch as we agree with the court that the instant action is
frivolous and thus that sanctions are warranted (see 22 NYCRR 130-1.1
[c]), we remit the matter to Supreme Court to determine the amount of
sanctions to be imposed, following a hearing if necessary.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
