Gover v Savyon

[*1] Gover v Savyon 2009 NY Slip Op 52745(U) [26 Misc 3d 1224(A)] Decided on August 27, 2009 Supreme Court, Nassau County DeStefano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2009
Supreme Court, Nassau County

Meir G. Gover, Esq., Plaintiff,

against

Shlomo R. Savyon, Defendant.



14877-06

Vito M. DeStefano, J.

In this action to recover fees for legal services allegedly rendered by the plaintiff, the defendant moves for an order: "(a) pursuant to CPLR 3211(a)(1); (3) and (7), and

* * * pursuant to Defendant's FIRST and SECOND Affirmative Defense (sic) as set forth in the Verified Answer, dismissing the Complaint in its entirety, as Plaintiff [was] concededly not licensed to practice law in the State of New York at any time during the period for which he claims to have performed legal services for plaintiff for which he seeks, by this action to recover legal fees, can not as a matter of law, maintain this action, or recover for legal services rendered in contract or in quantum meruit (as in original) * * * [and] (b) pursuant to CPLR 3211 (a) (5); (7), dismissing the Complaint, in its entirety, as the purported oral agreement' for plaintiff to perform legal services, was entered into allegedly, in 2001 and, by its terms, was not to b[e] performed within one year of its making."[FN1]

Initially, it is noted that the branches of the motion seeking relief pursuant to CPLR 3211(a) (1), (3) and (5) are substantially untimely, given that defendant served his answer in 2006 (see CPLR 3211 [e]). Those branches of the motion, are, therefore denied, as time-barred, notwithstanding the failure of plaintiff's counsel to raise the issue of untimeliness in opposition thereto (see, CPLR 3211(e); Wiebush v Bethany Memorial Reform Church, 9 AD3d 315 [1st Dept 2004]).

The remaining requests for relief contained in defendant's motion are the portion of branch "a" seeking dismissal of the complaint pursuant to CPLR 3211(a)(7), and confusingly, "pursuant to Defendant's FIRST and SECOND Affirmative Defense (sic),"[FN2] and the portion of branch "b" seeking dismissal of the entire complaint pursuant to CPLR 3211(a)(7), which was already requested in branch "a". The court notes that to the extent that defendant seeks an order dismissing the complaint based upon certain affirmative defenses, the motion is actually one for summary judgment, pursuant to CPLR 3212, although the defendant utterly failed to cite that statutory section in his motion papers and otherwise improperly inserted the request for relief into the motion branch seeking dismissal pursuant to CPLR 3211(a)(7).

The gravamen of these remaining branches is that plaintiff is barred from recovering unpaid legal fees for services which he claims constitute the unauthorized practice of law (Judiciary Law § 478). It is axiomatic that a contract to provide legal services rendered in violation of Judiciary Law § 478 is unenforceable in the courts of this State, as a matter of public policy (El Gemayel v Seaman 72 NY2d 701, 705 [1988]). As the transaction itself would be illegal, recovery in quantum meruit is likewise barred (Spivak v Sachs, 16 NY2d 163, 168 [1965]).

In consideration of the relief requested in the motion, the defendant's failure to properly label and separate the requests for relief contained therein, the apparent confusion caused thereby, and all the submissions of the parties, the court, as a matter of discretion and in interests of justice, will treat the remaining branches of the motion as seeking summary judgment (CPLR 3211(c); Mayer v Harris, 191 AD2d 484 [2d Dept 1993]).

The plaintiff is hereby given 20 days from the date of this decision to serve and submit additional opposition papers to the defendant's motion. Thereafter, the defendant shall have 10 days to serve and file reply papers.

This constitutes the decision and order of the court.

Dated: August 27, 2009

__________________________

Hon. Vito M. DeStefano J.S.C. Footnotes

Footnote 1:Although the defendant has preserved the statue of frauds defense by pleading it in his answer (Exhibit "B" to the Notice of Motion, p.6, Eighth Affirmative Defense), his failure to move for summary judgment on that ground precludes the court from considering it.

Footnote 2:The first and second affirmative defenses contained in the answer essentially allege that because plaintiff engaged in the practice of law without being licensed to practice law in the State of New York, plaintiff cannot maintain this action, and the alleged oral agreement, if made, would be invalid and void (Exhibit "B" to the Notice of Motion at p 5, ¶¶ 28, 29).