CASE ANALYSIS Case 12.3 Gyabaah v. Rivlab Transportation Corp. New York Supreme Court, Appellate Division, First Department, 102 A.D.3d 451, 958 N.Y.5.2d 109 (2013). IN THE LANGUAGE Accordingly, plaintiff executed a its carrier. This omission is fatal to OF THE COURT general release on October 5, 2010 Aronsky's claim of a settlement for TOM, J.P. [Judge Presiding], * * * . Aronsky advised plaintiff that reasons that follow. Aronsky main- ANDRIAS, RENWICK, DEGRASSE, he would hold the release pending tained that "plaintiff's signing of the ABDUS-SALAAM, JJ. [Judges] receipt of * * * advice from plaintiff General Release constituted a binding * * * * as to whether she preferred to have legal contract." The court denied the [Adwoa Gyabaah was hit by a the settlement structured [paid over motion and vacated the release in bus owned by Rivlab Transportation a period of time rather than in one what it perceived to be the interest of Corporation. She retained attorney lump sum]. justice. Jeffrey Aronsky to represent her in By December 9, 2010, plaintiff had * * * The application of con- negotiations with Rivlab, its insurer retained new counsel, Kenneth A. tract law * **required the denial of National Casualty Company, and Wilhelm, Esq. [Esquire]. On that date, Aronsky's motion. A general release their attorneys. Gyabaah agreed to Wilhelm advised Aronsky that plain- is governed by principles of contract pay Aronsky a contingency fee of one- tiff did not wish to settle the case or law. * * * It is essential in any bilateral third of the amount of her recovery. have the release sent to defendant. contract that the fact of acceptance be Aronsky] commenced this personal Aronsky moved the court below for communicated to the offeror. Therefore, injury action on plaintiff's behalf on an order enforcing what he con- this action was not settled because the August 25, 2010 [against Rivlab]. By tended was a $1 million settlement executed release was never forwarded to letter to Aronsky dated October 1, and setting his firm's contingency fee defendant nor was acceptance of the offer 2010, defendant's carrier tendered its at one-third of the recovery pursuant otherwise communicated to defendant or $1 million policy limits for purposes to plaintiff's retainer agreement. In its carrier. This record does not contain of settlement. Aronsky explained making his motion, Aronsky did not a single affidavit by anyone asserting the proposal to plaintiff who, at that allege that acceptance of the offer was that either occurred. * * * We do not time, chose to accept the settlement. ever communicated to defendant or share the * * * view that an October 6,2010 letter from defendant's counsel attorneys performed in obtaining the what professional misconduct, if any, to Aronsky "evidenced" an agreement recovery]. [Emphasis added.] brought it about. To be sure, a hear- to settle. Defense counsel's statement * * * We see no need for a hear- ing was not warranted by plaintiff's in the letter that he was "advised" ing to determine whether Aronsky untenable [indefensible] argument of a settlement does not suffice as was discharged for cause. The record that Aronsky disobeyed her instruc- evidence that such a settlement discloses that plaintiff has not made tions by making the instant motion was effected. * * * Because there has a prima facie showing of any cause albeit [although] after he had already been no settlement, the amount of for Aronsky's discharge. Plaintiff been discharged as her attorney. Aronsky's fee should be determined stated in her affidavit that she signed [The order of the lower court deny- upon the disposition of this action the release * * *because she felt ing Aronsky's motion insofar as it [as a percentage of the fee recovered "pressured" to do so. Plaintiff made sought to enforce a purported settle- by the Wilhelm firm based on the no mention of what the pressure ment and set Aronsky's fee accord- pro rata share of the work the two consisted of or, more importantly, ingly is affirmed.]