Goldstein Peck v. McKeon, No. 307963s (Dec. 14, 1995)
Opinion of the Court
The following facts are not disputed by the parties. In April 1991 Shirley Boland hired attorney Christopher Pfirrman to represent her in a legal matter. At that time Pfirrman was associated with the defendant, Joseph McKeon, Jr. Also at that time Boland provided the defendant with a retainer in the amount of $5,000.00. In August 1991 Pfirrman left his employment with the defendant and began working for the plaintiff, Goldstein Peck, P.C. At that time Boland transferred her case from the defendant to the plaintiff.
The following facts are disputed by the parties. Boland, in her supporting affidavit, attests that she was told that the remaining balance of her retainer would go to the plaintiff and would be applied to legal services rendered by the plaintiff. (Boland affidavit, ¶ 6.) In opposing the motion for summary judgment the defendant attests that there was no written agreement whereby he guaranteed payment of Boland's legal fees to the plaintiff. (McKeon affidavit ¶¶ 6 and 7.) Attorney Pfirrman, in his supporting affidavit, attests that $2,377.75 of the $5,000.00 retainer was expended at the defendant's firm. (Pfirrman affidavit, ¶ 6.) The defendant, in opposition, attests that he performed legal services for Boland in addition to the services rendered by Pfirrman, and that the value of his services are not reflected in the $2,377.75 that was charged to Boland's retainer. (Defendant's affidavit, ¶ 6.) As of March 16, 1993, there was an unpaid balance for legal services rendered, in the amount of $2,622.25. (Boland affidavit ¶ 8.) Boland had an expectation that this balance would be paid out of the monies remaining in the retainer that was paid to the defendant. (Boland affidavit, ¶ 9.) To this date, the defendant has failed to turn over the balance of Boland's retainer, in the amount of $2,622.25, to the plaintiff. (Pfirrman affidavit, ¶¶ 9 and 10; affidavit of William Kupinse, ¶¶ 11-13.) In response, the defendant attests that there is no balance of $2,622.25 remaining in the Boland retainer at his law offices. (McKeon affidavit, ¶¶ 6.)
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski,
Accordingly, the court denies the plaintiff's motion for summary judgment.
BALLEN, JUDGE
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