Fulbright & Jaworski, LLP v Carucci

Annotate this Case

Download PDF

Fulbright & Jaworski, LLP v Carucci 2008 NY Slip Op 33637(U) December 8, 2008 Supreme Court, New York County Docket Number: 602287/2008 Judge: Walter B. Tolub Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON I211012008 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART - : 602287/2008 INDEX NO. FULBRIGHT & JAWORSKI LLP. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. DISMISS ACTION L. Ihls motion to/for - Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affldavits - Exhibits _, Replylng Aff ldavlts Cross-Motion: PI Yes 0 No Upon the foregoing papers, it is ordered that this motion w Check one: FINAL DISPOSITION Check if appropriate: fl J. S C. . ' DO NOT POST n REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 1 5 X _________l___l__l___l________________l__ FULBRIGHT & JAWORSKI, LLP, Index No.602287/2008 M t n Seq.001 Plaintiff, -against- SAL CARUCCI and SEASONS CONTRACTING CORP., Defendants. WALTER B. TOLUB, J. : This is Defendant Sal Carucci's motion to dismiss- ,/' Complaint against him pursuant to CPLR 3211 i 3 G u This is an action for breach of contract and quantum meruit f o r failure t o pay a t t o r n e y s ' fees. Plaintiff claims it was retained by the Defendants, to represent Seasons Contracting Corp (Seasons) with regard to an action that was commenced against Seasons b y Masons Tender Trustees (Mason) in the United States District Court for the Southern District of New Yosk (Mason v. S e a s o n s action). In that action, Mason claimed that Seasons had failed to m a k e appropriate contributions t o certain employee trust f u n d s . A successful settlement was reached in that action on December 26, 2 0 0 6 . Plaintiff also claims t h a t , in addition to p r o v i d i n g s e r v i c e s in connection w i t h t h e Mass n v , $ea, song a c t i o n for Seasons, Plaintiff provided Mr. Carucci legal services in [* 3] connection with a claim made by various unions a n d trustees of multi-employer trust funds, that an alter ego existed between Seasons and Mr. Carucci. Plaintiff argues t h a t as a r e s u l t of its representation of Mr. Carucci, t h e claims of an alter ego status were n o t pursued against M r . C a r u c c i and that Plaintiff therefore is entitled to $57,632.04 in a t t o r n e y s ' fees from Mr. Carucci f a r t h o s e services. M r . C a r u c c i argues t h a t t h e claims a g a i n s t him must b e dismissed because: (1)he was not a named d e f e n d a n t in the Mason v. Seas ops action; ( 2 ) t h a t he never retained P l a i n t i f f to represent him in his individual capacity; and (3)that h e n e v e r signed a personal guaranty w i t h r e g a r d to the p e r s o n a l representations. Discussion CPLR 3211(a) (1) a n d ( 7 ) provide that a party may move f o r judgment dismissing one or more causes of action asserted a g a i n s t him on the ground t h a t a defense is f o u n d e d upon documentary evidence or that the pleading fails to state a cause of action (CPLR 3 2 1 1 [ a ] [l] and ["I). In determining whether to grant a motion to dismiss on these g r o u n d s , c o u r t s a r e t o liberally construe t h e p l e a d i n g s i n t h e complaint and afford the pleader the benefit of e v e r y possible favorable inference (511 West 7 3 2 Owners C o r p , , v, Jennifsr R e a l t v Co., 98 N Y 2 d 144 [ 2 0 0 2 ] ) . If from t h e f o u r corners of t h e complaint, f a c t u a l allegations a r e 2 [* 4] discerned which, taken together, manifest a n y cause of action cognizable at law, a motion to dismiss will fail (u.). In o r d e r to make out a claim in quantum meruit, a p l a i n t i f f must establish; (1) performance of services in good faith; (2) acceptance of the services by t h e person to whom they were rendered; (3)an expectation of compensation therefor, and (4) the reasonable v a l u e of the services (Freedman v. Pearlman, 271 A D 2 d 301, 304 [lZc dept 2 O O O J ; Heller v, KLK Z, 228 AD2d 263 [13tDept 19961 ) . As a general rule, performance and acceptance of services are held to give rise to a legal inference of a promise to p a y the reasonable value of s u c h s e r v i c e s (MoQrs v . H a l l , 1 4 3 AD2d 3 3 6 [2d Dept 19881). The inference, however, does not arise where because of the relationship of the p a r t i - e s it is natural that such services should be rendered without the expectation of pay (u-; Robinson v. M u m , 238 NY 40 [1924]). Here, the Complaint pleads the f o u r elements of quantum meruit. P a r a g r a p h five of the Complaint states: plaintiff p r o v i d e d L e g a l services t o S a l Carucci i n connection with a claim made by v a r i o u s unions and trustees of multi-employer t r u s t funds that an aLter ~ Q Q status existed between and among Seasons Contracting Corp., Carucci, and other corporations and individuals. As a result of the representation of Casucci by p l a i n t i f f , the claims of an a l t e r e q Q status w e r e not pursued 3 [* 5] against Carucci. I In t h e posture of Defendant s motion to dismiss, it is the court s task to determine w h e t h e r Plaintiff s pleadings s t a t e a cause of action (511 West 232 Ownerg Co rp., v . $e nnifer Rea l t v CO., 98 NY2d 144 [ 2 0 0 2 1 ) . T h e motion must be denied if from the pleadings four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law Better Homes Ders oc, 97 NYZd 46, (I_d.at 152, c i t i n g Fol, a n e t s k v v. 54 [2001] q u o t i n g Gussenheirner v. Ginzburq, 4 3 NY2d 268, 275 [1977]). The Court accepts as true t h e facts alleged i n the Complaint and any submissions in opposition to the dismissal motion ( S Q k o l o f f v. H u riman E;states Pev. CQr p t , 9 6 N Y 2 d 409, 4 1 4 [ZOOl]). Additionally, the Plaintiff is given the benefit of every possible favorable inference (pd.). Based on the foregoing principles, the fact that Mr. C a r u c c i was not a named Defendant in the Mason v. Trustees a c t i o n and that he did n o t enter into a written agreement with Plaintiff individually, does n o t mean that additional services were n o t rendered. It follows that Defendant Sal Carucci s motion t o dismiss m u s t be and is denied because Plaintiff has stated a valid cause of action for quantum meruit. Accordingly, it is 4 [* 6] ORDERED t h a t Sal Carucci's motion to dismiss t h e Complaint as a g a i n s t h i m is denied. Counsel for t h e parties are to appear for a conference on J a n u a r y 3 0 , 2 0 0 9 a t 11AM i n room 335 a t 60 C e n t r e S t r e e t . This memorandum opinion constitutes the decision a n d order of t h e C o u r t . Dated: /=& HON. WALTE'R B. TOLUB, J . S . C . 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.