Bellinson Law, LLC v Iannucci
Annotate this Case
Download PDF
Bellinson Law, LLC v Iannucci 2012 NY Slip Op 31105(U) February 14, 2012 Supreme Court, New York County Docket Number: 600593-09 Judge: Judith J. Gische 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 ON412512012 [* 1] * 1, SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 1 I ~ Index Number : 60059312009 BELLINSON LAW, LLC 1 - 1 1 I) 'INDEX NO. MOTION DATE VS. IANNUCCI, ROBERT ESQ. MOTION SEQ. NO. SEQUENCE NUMBER : 008 p0K MOTION CAL. NO. SUMMARY JUDGMENT this motion tolfor Notice ot Motion/ Order to Show Cause - Atfldavtts - Exhibits .. - v1 v z Answering Affidavits ... - Exhibits Replying Affidavits 0 ? i K Check if appropriate: fl c DO NOT POST ] SUBMIT ORDER/ JUDG. 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] DECISION/ ORDER Index No.: 600593-09 Seq. No.: 008 Plaintiff (s), PRESENT: Hon. Judith J. Gische J.S.C. -against- Robert lannucci, Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s): Papers Numbered Bellinson n/m 3212 w/AMF affirm, RJB affid, exhs (3 vols) . . . . . . . . . . . . . . . . . . . 1-4 lannucci xlm 3212 wlRHD, RB affirms, RTI, SL,LF amds (sep backs) . . . . . . . . . . 5-1 1 Bellinson reply w/AMF affid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I2 lannucci reply w/DEG affirm, exh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ~~~ Upon the foregoing papers, the decision and order of the court is as follows: GISCHE J.: Plaintiff Bellinson Law, PLLC ( Bellinson firm ) is the law firm that previously represented defendant Robert T. lannucci s/h/a/ Robert lannuci ( lannucci ) in a Federal action brought against the City of New York. The Bellinson firm seeks to recover its contingency fees in connection with the settlement achieved in that action. lannucci has asserted counterclaims of legal malpractice and fraud/ fraud in the inducement, rescission and breach of contract. The breach of contract counterclaim was previous dismissed by the court in deciding a prior motion to dismiss. The Bellinson firm now moves and lannucci cross moves for summary judgment -Page 1 of 15- [* 3] on lannucci s counterclaims. Since these motions were made timely after plaintiff filed its note of issue, they are properly before the court and will be decided on their merits c (CPLR 5 3212; Brill v. Citv of New York, 2 NY3d 648 [2004]). Background Unless otherwise stated, the following facts have been established: lannucci owned a number of buildings in the Downtown Brooklyn area near a police station. NYPD and others with NYPD placards parked their vehicles in areas and in such a way that access to lannucci s buildings was hampered and the sidewalks were damaged, requiring significant repairs. This situation persisted and evolved over the course of 25 years and evhntually lannucci sued the City in Federal court (lannucci v, Citv of New York, U.S. District Ct., E.D.N.Y. 02-CV-6135) ( Federal action), alleging amendment to the United violations of his substantive property rights under the 14th States Constitution (42 USC sl983). During the course of the Federal action (six years), lannucci had different attorneys representing him. Although he was pleased with the work by one attorney, Kevin Farrelly, Esq. ( Farrelly ), and Farrelly continued to be the attorney of record in that action, lannucci decided he needed a larger firm with greater resources and more Federal jury trial experience to represent him. lannucci is an attorney at law and admitted to practice in New York state. His present pursuits are, however, in real estate and the antique motorcycle business. A former attorney representing him in the Federal action recommended the Bellinson law firm. lannucci and Robert Bellinson, Esq. ( Attorney Bellinson ) first met to discuss the Federal action on June 3, 2008. After their meeting, the Bellinson firm sent lannucci a proposed retainer agreement. In relevant part, the retainer states that -Page 2 of 15- [* 4] lannucci will pay [Bellinson] 22.5% of any amount(s) received or recovered in connection with the above-referenced cases, whether received by verdict, settlement or otherwise... After making certain corrections to the agreement, lannucci signed and dated it July 4, 2008. The patties also executed an addendum to the retainer. The addendum bears the same date as the retainer (July 4, 2008). In relevant part, the addendum provides that we will seek an award of fees if we obtain a winning verdict and to that end, the Bellinson firm will keep an accurate log of [its] hours and expenses to assist in seeking this award. The parties also agreed that the Bellinson firm would handle such matters as post trial motions and appeals (but not post trial briefs) and that [iq the case settles prior to the completion of Jury Selection, the amount of the contingency payable to Counsel shall be reduced to 19%. Later (July 29, 2008), following discussions between lannucci and Bellinson, the retainer agreement was further amended to add the following paragraph to the July 4, 2008 addendum : 5. Cost of Kevin Farrelly, Esq. as law man : as of today, R. Bellinson will bear first $5K or 22.5% of his total cost, whichever is higher, to be deducted from R.B. s contingency fee, share of proceeds. R.B. 8 R.I. will jointly decide whenlwhere to use K.F. Although the trial in Federal action was originally scheduled for July 7, 2008, lannucci obtained an adjournment to October 6, 2008. The trial was then adjourned again to November 17, 2008. On November 6, 2008 the presiding judge ( Judge Hereinafter, references to retainer shall means the retainer, as amended through July 29, 2008, unless otherwise provided. -Page 3 of 15- [* 5] Sifton ), held a pre-trial conference. That conference was attended by lannucci, Farrelly and Attorney Bellinson. No settlement was achieved. According to Farrelly, who was deposed, he felt Attorney Bellinson was unprepared for the conference and surprised Attorney Bellinson had not contacted him in the preceding months to review his (Farrelly s) extensive file on the matter. Farrelly also stated at his EBT that he expressed these concerns to lannucci. Following the pre-trial conference with Judge Sifton, he directed that the parties have a settlement conference with a magistrate judge ( Judge Mann ). The settlement conference took place November IO, 2008 in the presence of lannucci, his wife, Sonia Ewers, Lauren Forman, Esq., lannucci s in house counsel, Attorney Bellinson and attorneys for the City. Despite the concerns Farrelly had expressed to lannucci, lannucci told Farrelly not to come to the settlement conference. At the settlement conference Judge Mann recommended a settlement that lannucci rejected. Throughout the day the City slowly raised its offer but lannuci walked away from their final offer of $2,000,000, insisting he would not settle for less than $2,125,000. The next day (November 1lth), sent Judge Mann a letter stating as Farrelly follows: I represent Plaintiff Robert lannucci in this action. I write to advise the Court that the parties have reached a settlement of this action and expect to file a stipulation of dismissal within a week. On behalf of my client, I thank the Court for its assistance in settling this matter. The settlement was for $2,125,000, the same amount lannucci had demanded to settle the case the day before. -Page 4 of 15- [* 6] In the ensuing weeks, Farrelly and lannucci exchanged email correspondence about the settlement and the terms the City wanted in the final settlement documents. 0 Farrelly also wrote a letter to the City s attorney. In that letter, dated November 19, 2008, Farrelly wrote the following: This letter sets forth our mutual understanding regarding the processing of the settlement of the above-referenced action. The Plaintiff will deliver to the Defendant the following closing documents, to wit: a release signed by me [Farrelly] in the form attached hereto (the stipulation ) and a Release and Discharge of Attorney s liens in the form previously sent to you for the prior attorneys of record in the action (collectively the Closing Papers )... The action is settled for the amount of $2,125,000 (the Settlement amount ). The City will pay the Settlement Amount, provided that no liens are found as a result of a routine lien search... The City will pay the Settlement Amount in a two-party check made payable to Robert T. lannucci and Kevin J. Farrelly as his attorney ...If the City pays the settlement within 30 Days...lannucci will simultaneously deliver to you a release signed by his wife Sonia Ewers... In subsequent emails, Farrelly wrote to lannucci that the City is looking for releases by other attorneys who represented lannucci in the action out of concern that the City will be liable for a lien placed on the [settlement] proceeds by these attorneys and Farrelly also references case law provided by the City attorney on this issue. These emails do not appear to be copied to the Bellinson firm. As of January 14, 2009, the stipulation of discontinuance had not been filed and the City attorney reached out to Judge Mann for assistance stating that the City was still waiting for the necessary documents, which included release by lannucci s prior counsel because the City was bound as a matter of law, to retain funds sufficient to -Page 5 of 15- [* 7] pay the lien or subject to liability for the amount of the lien. In response, Judge Mann ordered that the parties shall, by 1/23/09, file a stipulation of discontinuance that reserves the right to reopen the case within 60 days if the settlement is not co nsummated . I lannucci contends that he had no choice but - and was forced - t o settle the Federal action because Attorney Bellinson (on behalf of the Bellinson firm) was not equipped or ready to try the case and that by the time he ( lannicci ) figured this out, it was too late for him to get a new attorney. lannucci alleges that he made it clear to Attorney Bellinson that he wanted to try the case, not settle. lannucci alleges that Attorney Bellinson misrepresented his trial experience and familiarity with Federal court procedures when in fact (according to lannucci) he only handled slip and falls and equally uncomplicated civil state matters. lannucci states he relied on these misrepresentations and was persuaded by Attorney Bellinson s personal demeanor that he was the right attorney for the case. lannucci alleges that the Federal action was a very complicated commercial case, presenting sophisticated issues of valuation. When asked whether he was referring to his claim for loss of rent due to the City s violation of his civil rights, lannucci responded basically. According to lannucci the Federal action was also complicated because it presented issues of first impression. lannucci claims that he expected Attorney Bellinson to keep track of his time because under the applicable Federal statute, he would have recovered his legal fees, had he prevailed. lannucci also claims that Attorney Bellinson committed legal malpractice by among other things: -Page 6 of 15- [* 8] .Not subpoenaing certain witnesses in advance of trial .Preparing inadequate proposed jury instructions G o i n g to the settlement conference with Judge Mann unprepared .Not bringing a copy of lannucci s expert s report to the settlement conference .Insisting that he represented lannucci s wife when, in fact, she was not a named plaintiff in the Federal action .Not familiarizing himself with lannucci s expert s report .Not telling the court that he had been the subject of a death threat In support of its motion for summary judgment, the Bellinson firm argues that lannucci is an attorney and sawy business person who was intimately involved in every step of the case, including the settlement conference that Judge Mann held. The Bellinson firm contends that lannucci is so experienced with legal and business matters, that he expertly negotiated the firm s retainer and fully anticipated that the case might settle because of the language in the addendum to the retainer: [if] the case settles prior to the completion of Jury Selection, the amount of the contingency payable to Counsel shall be reduced to 19%. The Bellinson firm also contends that lannucci has a pattern of hiring lawyers, not paying them and then threatening legal action against them for malpractice to bully them into settling their fees. In particular, the Bellinson firm highlights the fee dispute another attorney ( Harfenist ) had with lannucci. Hatfenist was another one of lannucci s attorneys in the Federal action. The Bellinson firm argues that lannucci s case had a serious flaw because he was seeking monetary damages for more than three years prior to the commencement of the Federal action. The City had brought a motion in limine which, if granted, would have, in lannucci s own words have gutted his case. Thus, Bellinson contends did not have a realistic claim for more than $5,000,000 in damages because $2,600,000 in -Page 7 of 15- [* 9] damages would have been precluded. lannucci provides various affidavits in support of his cross motion. One affidavit is by Richard Dolan, Esq., who lannucci contends is qualified to render an opinion on the issue of whether the Bellinson law firm failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession. Dolan contends that Attorney Bellinson firm failed to live up to that standard by: I) failing to maintain contemporaneous records of his time, as required under 42 USC 5 1983 which allows a prevailing plaintiff to seek an award of legal fees and; 2) failing to prepare for trial in an adequate and timely manner. Sharon Locatell ( Locatell ), a real estate appraiser, also provides her sworn affidavit in support of lannucci s cross motion. Locatall was his expert in the Federal action. She states that lannucci suffered loses for his various properties in excess of $5 million and that, in her opinion, the City s expert s report was flawed because it failed to consider a similar property at 170 Tillary Street in its analysis. Discussion Since each side seeks summary judgment, each side bears the burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winearad v. New York Univ, Med, Ctr., 64 N.Y.2d 851, 853 [1985]). Once met, this burden shifts to the opposing patty who must then demonstrate the existence of a triable issue of fact. Alvareq v, Prospect HOSP., 68 N.Y.2d 320, 324 (I 986); mkerman v. Citv of New York, Dept 20061). 49 N.Y.2d 557 [1980]; Santiaqo v. Filstein, 35 AD3d 184 [lat In a legal malpractice action, the former client must show that an attorney failed -Page 8 of 15- [* 10] to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (IylcCov v, Fevnman, 99 NY2d 295, 301 [2002]). In addition, the former client must show that the attorney s breach of this professional duty caused the former client s actual damages (McCov v. Feynman, 99 NY2d at 301). Thus, the former client s burden of proof in a legal malpractice action is a heavy one because the former client must first prove the hypothetical outcome of the underlying litigation and, then, the attorney s liability for malpractice in connection with that litigation (Sabalza v. Salado, 85 AD3d 436 [lstDept 201 I]), When it is the law firm seeking summary judgment in its favor, the law firm must establish that its former client i unable to prove at least one of the essential elements s of his cause of action (Suvdam v O Neill, 276 A.D.2d 549 [2 dDept 20001). Thus, to defeat the Bellinson law firm s motion for summary judgment, lannucci need only establish the existence of a material issue of fact as to whether he or she would have prevailed in the underlying action absent the attorney s negligence (Rudolf v Shavne, Dachs, Stqnisci, Corker 2 Sauer, 8 N.Y.3d 438 [2007]). The failure to demonstrate 3 proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent. The Bellinson firm has established that it was reasonably prepared to handle the case and that when it went to the settlement conference with Judge Mann it acted in accordance with is client s (lannucci s) instructions. lannucci did not want to settle for anything less than $2,125,000 and that was how much the case settled for. Other claims by lannucci, that he was forced to settle because he was concerned the Bellinson firm was not ready to try the case, are not persuasive and inadequate. -Page 9 of 15- [* 11] lannucci was present at the settlement conference and not once did he notify Judge Mann that he did not want to discuss settlement but only wanted to try the case. Nor did lannucci make an application for an adjournment so he could hire more competent counsel. Statements by lannucci, that he believed the trial was nonadjournaable, are are offered without any supporting proof that he made such an application and it was denied or that the trial was marked final. Although settlement of an action will not preclude an award of damages for legal malpractice where the former client is able to demonstrate that the settlement was caused by the malpractice, namely, that the value of the underlying claim was in excess of the settlement (FUSCQ Fauci, 299 A.D.2d 263 [lbt v. Dept 2002]), here lannucci has failed to show that his case settled for measurably less than it was worth. The Federal action was commenced in November 2002 and his claims were subject to a three (3) year statute of limitations. Shortly before trial, the City brought a motion to limit the issue of damages. Locatell, lannucci s real estate appraiser, had calculated the lost rental income at more than $5 million, based upon rental loss from 1983, when several of the buildings were acquired by lannucci. Two other buildings were acquired by lannucci in 2002 and 2003. The estimated lost income for the older buildings alone was $2,630,000 alone. Had the motion been granted, this would have - as lannucci himself stated in correspondence - gutted his case. Therefore, lannucci cannot prove that the settlement he made was for an amount measurably less than his case was worth. The City s real estate expert had a far lower valuation than did lannucci s expert. Furthermore, as lannucci contends, the Federal action was a case of first impression which means there was no precedent mandating a specific outcome. -Page 10 of 15- [* 12] An attorney is liable in a malpractice action if it can be proved that his conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession. The Bellinson firm has established that Attorney Bellinson came to each of the November 2008 conferences prepared to discuss the case. The transcript of the recorded portions of the conference with Judge Mann show that Attorney Bellinson was familiar with the issues. He was never scolded by Judge Mann for not knowing a particular issue and his description of the case is consistent with the summons and complaint in that action. Although lannucci argues that the City attorneys were better prepared for the conference because, for example, Attorney Bellinson did not have a copy of the Locatell s appraisal with him, this oversight does not establish professional malpractice by the Bellinson firm, as a matter of law I Dept 19941). An (Morrison Cohen Sinqer & Weinstein v. Zuker, 203 A.D.2d I 9 [I attorney is not held to the rule of infallibility (Bernstein v. Oppenheim & Co., P.C., 160 A.D.2d 428 [1et Dept 19901). Dolan, lannucci s law expert, opines that it was malpractice for Attorney Bellinson to have not have kept contemporaneous records of his time since lannucci could have recovered his legal fees had the case gone to trial and he had been the prevailing party. In New York State AssQciatiQn Retarded Children, Inc v. Carev fgr (71IF2d 1136 [ I 9831) ( Carev ), the Second Circuit held that an attorney seeking fees under 42 USC § 1988 must keep contemporaneous time records, specifying, for each attorney, the date, the hours expended, and the nature of the work done. Attorney Bellinson admitted he was not keeping contemporaneous records, but stated it was because he was working on a contingency fee basis. All this means, however, is that -Page I 1 of 15- [* 13] the Bellinson firm could not have made an application under 42 USC 5 1988 to recover its ow11_ legal fees from the defendant, had lannucci prevailed at trial. Therefore, Attorney Bellinson s failure to keep contemporaneous records of his time is not malpractice under the facts presented, nor does it preclude the Bellinson law firm from obtaining summary judgment on its claim for legal fees based upon a contingency agreement. Dolan also opines that Attorney Bellinson s proposed jury charges and verdict sheet were inadequate and that an attorney should prepare an outline of his or her case, set up witness files, serve trial subpoenas and understand the facts and the applicable law thoroughly so as to be a vigorous advocate. He cites from a treatise and opines, in effect, that preparation preparation preparation is key to a successful trial. The matter that Dolan opines on does not involve professional or scientific knowledge or skill not within range of ordinary training or intelligence of a jury (Dufel v. Green, 84 N.Y.2d 795 [1995]). An attorney owes each client a duty to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community. Thus, while Dolan would have prepared for trial differently (and possibly better) than Attorney Bellinson, this does not mean the Bellinson firm cornmitted legal maIpractice. Legal malpractice claims consist of the following elements (1) attorney negligence (2) proximately causing the loss, and (3) proof of damages [Tinter v Rapaporf, 253 A.D.2d 588 [ I Dept 19981). The damages are based on the value of the claim lost. lannucci has failed to establish any of these elements. Arguments that he could have done better by going to trial are entirely speculative (AmBase Corp. v. -Page 12 of 15- [* 14] man (Farrelly) to accept the City s offer. Not once after Farrelly notified Judge Mann that the case had settled did lannucci (or Farrelly) contact Judge Mann to say that lannucci had reconsidered the settlement, did not want to execute the necessary documents and wanted a trial instead. lannucci did not discharge the Bellinson firm or bring any kind of motion. Statements by lannucci that these were not choices available to him are offered without a scintilla of proof. The Bellinson law firm achieved success for lannucci who should not be heard to complain that th[e] result was not achieved in the precise manner [plaintiff] would have preferred (AmBase Corp. v, Davis Polk & Wardwell, 30 A.D.3d at 172). Since the Bellinson firm has proved that it did not commit legal malpractice and lannucci has failed to raise issues of fact requiring a trial, the motion by Bellinson for summary judgment dismissing the malpractice claim is denied and lannucci s cross motion for summary judgment in his favor on that claim is denied Fraud based claim According to lannucci, Attorney Bellinson lied about how many trials he had taken to completion in the Federal courts and he (lannucci) agreed to retain the firm based upon these and other fraudulent misrepresentations about Attorney Bellinson s skills. A claim for fraud/fraudulent misrepresentation requires that the plaintiff establish a misrepresentation of a material fact, which was false and known to be false by the defendant, made for the purpose of inducing the other patty to rely upon it, justifiable reliance of the other party, and injury (Lam8 Holdinq Co. v. Smith Barnev, 88 N.Y.2d 413, 421 [1996]). A contract induced by fraud is subject to rescission, rendering it -Page 13 of 15- [* 15] unenforceable by the culpable party (Merrill Lvnch, Pierce Fenper & Smith. Inc. v. Wise Metals Groue. LLC, 19 A.D.3d 273 [let20051). The true measure of damage is Dept indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the out-of-pocket rule (Lama Holdinq Co. v. Smith Barney, 88 N.Y.2d at 421). Even assuming Attorney Bellinson stated he had extensive trial experience in Federal court, mere puffery by an attorney of his skills is not actionable as fraud (see Schonfeld v. Thompson, 243 A.D.2d 343 [l , Dept 19971). Furthermore, it is lannucci who states that he did not believe Attorney Bellinson was skilled enough to try the case and, therefore, felt he had to settle the case. These factual allegations are indistinguishable from those made in support of lannucci s claim malpractice. Therefore, the Bellinson firm is entitled for summary judgment in its favor on this claim for that reasons alone (Waqqoner v. Caruso, 14 N.Y.3d 874 [2010]). lannucci has not proved that Attorney Bellinson made statements about his skills that were untrue at the time they were made and with the intent to deceive. Though lannucci claims Attorney Bellinson never tried a federal case, it is unrefuted that Attorney Bellinson is a litigator and familiar with litigation. Statements by lannucci that the Bellinson firm misrepresented its qualifications just to achieve a healthy paycheck is not evidence in admissible form,,but an opinion. The Bellinson law firm has met its burden of proving it is entitled to summary judgment on lannucci s fraud based counterclaim for rescission. lannucci has failed to come forward with issues of fact requiring a trial. Therefore, the Bellinson s motion for summary judgment on the fraud based claim is granted and lannucci s cross motion for -Page 14 of 15- [* 16] summary judgment is denied. The fraud based counterclaim for rescission of the retainer agreement is dismissed. Conclusion The Bellinson law firm s motion for summary judgment dismissing lannucci s remaining counterclaims which are for legal malpractice and fraudulent inducementhescission is granted. lannucci s cross motion for summary judgment is denied. In accordance with the foregoing, It is hereby ORDERED that the Clerk shall enter judgment in favor of plaintiff Bellinson Law, LLC dismissing the counterclaims by defendant Robert lannucci; and it is hereby ORDERED that once the parties complete mediation, presently scheduled for March 29, 2012, this case is ready for trial; and it is further ORDERED that plaintiff Bellinson Law, LLC shall serve a copy of this decision and order on Mediator Vigilante; and it is further ORDERED that any relief requested but not expressly addressed is hereby denied; and it is further ORDERED that this constitutes the decision and order of the court. Dated: New York, New York February 14, 2012 So Ordered: --??--Hon. J -Page 15 of 15- t J. Gische, JSC
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.
