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Costanzo v. Costanzo

Decided: March 8, 1991.

VINCENT COSTANZO, PLAINTIFF,
v.
ANTOINE COSTANZO AND NORMAN ROBBINS, DEFENDANTS. NORMAN ROBBINS, THIRD PARTY PLAINTIFF, V. JOSEPH MONICO, THIRD PARTY DEFENDANT



Menza, J.s.c.

Menza

Plaintiff moves for summary judgment. The question in this case is whether an attorney has a duty to turn over funds pursuant to an assignment of funds executed by his client, where the client subsequently rejects the assignment and directs the attorney to pay the funds directly to him.

The facts are these. Over a period of years, defendant, Antoine Costanzo (Antoine), had borrowed various sums of money from his father, plaintiff, Vincent Costanzo (father), which totaled $10,154.26.

In September 1987, Antoine promised his father the sum of $5,000 out of the proceeds of any settlement he might make of a personal injury claim that he had, if the father would agree to forgive the balance that was due to him. The father then informed his lawyer, Joseph Monico, (Monico), of what occurred between him and his son. On September 28, 1987, Monico wrote the following letter to defendant, Norman Robbins (Robbins), Antoine's attorney. The letter states, in pertinent part:

I have been advised by Vincent Costanzo, father of Antoine Costanzo, that you are the attorney for his son, in connection with a claim for personal injuries involving a motor vehicle accident and that there is a suit pending in Middlesex County.

Antoine is indebted to his father for $5,000.00, plus interest for the money loaned to the son about 3 years ago. It also appears that since Antoine was a passenger in the vehicle involved in the accident there is a good possibility of a favorable outcome in the action. Mr. Costanzo is hesitant in filing a suit to recover the money so loaned, unless it is made necessary to do so. It is suggested that the son authorize you to withhold in escrow, from the proceeds recovered in the action or settlement, for the benefit of his father in repayment of the loan and the approved interest. If Antoine authorizes you to do so, and upon your advising me accordingly, I shall withhold institution of the suit for the collection of the debt. Please let me hear from you at your earliest convenience.

On May 1, 1988, Antoine asked his father for a loan of $1,000 explaining to him that a settlement was near, and that the father would be paid out of the proceeds of the settlement. The father refused to loan any more money to his son unless and until he had something in writing evidencing the amount of money due to him. On May 2, at the father's request, his lawyer Monico prepared a document which the son signed and the father then gave to his son the sum of money requested by him. The document stated:

I, ANTOINE COSTANZO, the undersigned, do hereby acknowledge that I am indebted to my father, Vincent Costanzo, of South Wood Avenue, Linden, in the sum of $6,000.00, resulting from monies he has heretofore loaned to me and I do hereby authorize my attorney, Norman Robbins, Esq, of Amboy Avenue, Woodbridge, to withhold from the proceeds of any settlement which he may hereafter receive in settlement of the automobile accident claim which he is presently handling on my behalf and I do hereby authorize and direct him to pay the said sum so withhold to my said father, in full payment of said loan.

On May 18, 1988, Monico forwarded the document to defendant Robbins. Robbins apparently did not respond and so on August 16, 1988, Monico again wrote to Robbins, reminding him of his client's claim to the expected settlement monies.

On August 18, 1988, Robbins wrote a letter to Monico acknowledging receipt of Monico's letter and informing him that the case had been settled. The letter also stated: "I will contact you upon distribution of monies, but Mr. Costanzo

wishes to discuss this claim with his father before authorizing any disbursement."

Monico responded by a letter, in which he advised Robbins to forward the settlement monies due to his client directly to his office. On September 1, 1988, ...


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