GAITER, DARRYL v. CITY OF BUFFALO BOARD OF EDUCATION

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

749
CA 15-02092
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.

DARRYL GAITER AND HELEN GAITER,
PLAINTIFFS,
V MEMORANDUM AND ORDER

CITY OF BUFFALO BOARD OF EDUCATION,
ET AL., DEFENDANTS.
-----------------------------------
HOGANWILLIG, PLLC, RESPONDENT,
AND LAW OFFICE OF ERIC B. GROSSMAN,
APPELLANT.
(APPEAL NO. 1.)

LAW OFFICE OF ERIC B. GROSSMAN, WILLIAMSVILLE (ERIC B. GROSSMAN OF
COUNSEL), FOR APPELLANT.

HOGAN WILLIG, PLLC, AMHERST (DIANE TIVERON OF COUNSEL), FOR
RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered August 14, 2015. The order directed the
appellant Law Office of Eric B. Grossman to pay to respondent
HoganWillig, PLLC, 35% of the legal fees generated in the underlying
action.

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

Memorandum: In appeal No. 1, Law Office of Eric B. Grossman
(Grossman), plaintiffs’ counsel in the underlying personal injury
action, appeals from an order directing it to pay plaintiffs’ former
counsel, respondent HoganWillig, PLLC, 35% of the legal fees generated
in the underlying action. In appeal No. 2, Grossman appeals from an
order denying its motion for leave to renew and/or reargue its
opposition to the relief granted in the order in appeal No. 1.
Insofar as the order in appeal No. 2 denied the motion for leave to
reargue, it is not appealable, and we therefore dismiss the appeal to
that extent on that ground (see Indus PVR, LLC v Maa-Sharda, Inc., 140
AD3d 1666, 1667). In addition, we note that, in its brief on appeal,
Grossman fails to advance any contentions concerning the order in
appeal No. 2, and it therefore has abandoned any issue with respect to
that order (see Villar v Howard, 126 AD3d 1297, 1300; see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 984). We therefore dismiss
appeal No. 2 in its entirety.
 -2- 749
CA 15-02092

We affirm the order in appeal No. 1. Grossman contends that it
may not share any part of the fees generated in the case with
HoganWillig because HoganWillig had a conflict of interest, i.e., a
member of the firm was also a member of the Board of Education of the
City of Buffalo, a defendant in the underlying action. We reject that
contention. Grossman, which “is bound by the same [Rules of
Professional Conduct] as [HoganWillig], cannot be heard to argue that
the fee-sharing agreement and the obligations thereunder must be
voided on ethical grounds, when [Grossman’s principal] freely agreed
to be bound by and received the benefit of the same agreement,
particularly where, as here, there is no indication that the client
was in any way deceived or misled” (Samuel v Druckman & Sinel, LLP, 12
NY3d 205, 210, rearg denied 12 NY3d 899; see Benjamin v Koeppel, 85
NY2d 549, 556).

Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court