Schutty v Speiser Krause P.C., 2011 NY Slip Op 06087 [86 AD3d 523]

July 28, 2011

Appellate Division, First Department

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Lazare Potter & Giacovas, LLP, New York (Robert A. Giacovas of counsel), for appellant.

Leitner & Getz LLP, New York (Gregory J. Getz of counsel), for respondents.

Orders, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered June 1, 2010 and on or about June 11, 2010, which, after a nonjury trial, denied as moot plaintiff’s motion for summary judgment dismissing the first counterclaim and dismissed the complaint, respectively, and orders, same court and Judicial Hearing Officer, entered February 18, 2011, which, respectively, upon stipulation of the parties, referred four counsel fee disputes to the courts handling the underlying litigations and reaffirmed the stipulation and the order of referral, unanimously affirmed, without costs.

Plaintiff attorney brought this breach of contract action against his former law firm and certain of its partners. Defendants asserted a counterclaim for a share of attorneys’ fees on four matters plaintiff took with him when he left the firm. The parties stipulated that the fee disputes would be referred to the individual courts handling each of the matters. The stipulation was entered into in open court during a status conference ( see Matter of Dolgin Eldert Corp. , 31 NY2d 1, 4-5 [1972]). Plaintiff is bound by it ( Hallock v State of New York , 64 NY2d 224, 230 [1984]).

Plaintiff’s motion for summary judgment dismissing the counterclaim was not rendered moot by the trial. However, the motion was rendered moot by the stipulation.

The court’s conclusion that defendants did not breach the parties’ employment agreement was based on its credibility determinations and the evidence adduced as to the parties’ conduct of their practice. We cannot say that the conclusion could not have been reached under any fair interpretation of the evidence ( see Serrante v GJF Constr. Corp. , 72 AD3d 543 [2010], lv denied 15 NY3d 704 [2010]). Concur—Saxe, J.P., Sweeny, Catterson, Freedman and Manzanet-Daniels, JJ..