LAW OFFICES OF RUBENSTEIN v. SHAPIRO

The proof adduced before the Special Referee, including evidence of the parties' conduct and their various writings, as well as the closing statements of the matters referred by plaintiffs, sufficiently supported the Referee's finding, confirmed by the IAS court, that defendants-appellants had agreed to share with plaintiffs half their fees for all matters referred to them by plaintiffs. Defendants-appellants' contention that the court improperly referred the matter to a referee to hear and report on contested questions of fact, thereby denying them their right to a jury trial of factual disputes with respect to defendants' purported violation of the fee sharing agreement, has been waived. Appellants objected to the reference only upon the ground that the court had not ruled upon their motion for summary judgment and thereafter willingly participated in the hearing without requesting a jury trial (see, Chalu v. Tov-Le Realty Corp., 220 A.D.2d 552, lv dismissed in part and denied in part 88 N.Y.2d 959, lv dismissed 91 N.Y.2d 952). Finally, the court appropriately amended the caption of the action to add the firm of Shapiro, Uchman Myers, P.C. as a party defendant since that entity, the successor firm of the principal individual defendant, actively participated in all of the proceedings and, following the dissolution of Shapiro Baines, received fees attributable to at least one of the cases referred by plaintiffs.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.