Forchelli , Curto , Deegan, Schwartz, Mineo, Cohn & Terrana, LLP v Hirsch

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Forchelli , Curto , Deegan, Schwartz, Mineo, Cohn & Terrana, LLP v Hirsch 2012 NY Slip Op 31317(U) May 4, 2012 Sup Ct, Nassau County Docket Number: 8151-11 Judge: Steven M. Jaeger 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. ---------------------------------------------------------------- [* 1] .5CSHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice TRIAL/lAS , PART 41 NASSAU COUNTY INDEX NO. : 8151- FORCHELLI , CURTO , DEEGAN , SCHWARTZ MINEO , COHN & TERRANA, LLP f/k/a FORCHELLI , CURTO , CROWE , DEEGAN SCHWARTZ , MINEO & COHN , LLP MOTION SUBMISSION DATE: 3- 29- Plaintiffs -againstMOTION SEQUENCE NO. NACHAMA HIRSCH Defendant. The following papers read on this motion: Notice of Motion , Affirmation , and Exhibits Affidavit in Opposition of Defendant Reply Affirmation Motion pursuant to CPLR 3212 by the plaintiff Forchelli , Curto , Deegan Schwartz , Mineo , Cohn & Terrana , LLP , al. for summary judgment on its complaint and dismissal of the defendant Nachama Hirsch' s counterclaims; and/or alternatively, for a default judgment pursuant to CPLR 3215(eJ. The plaintiff- law the pro se firm , Forchelli , Curto et. , al. Forchelli" J, represented defendant , Nachama Hirsch , for several years in a contentiously litigated bankruptcy proceeding, and claims to have generated and properly biled her for some $400 000. 00 in legal fees - fees which to date , she had not yet paid [* 2] v. (see, Musso Hirsch Terrana Forchelli, Curto , Deegan , Schwartz , Mineo, Cohn , 2010 WL 2667198 (E. Supp2d. Brands Caruso (Supreme Court , Hirsch , Pc. 2011); , 2011 WL 4543225 (E. Supp. 2d. v. Hirsch see generally, Caruso Y. 2010) Misc.3d. , LLP , 2010 WL 1740755 , at 2 Kings County 201 OJ). In 2008 , and then in 2010, Forchelli commenced two successive , non- payment actions against the defendant in this Court , both of which were dismissed for the same reasons; namely, that when the actions were commenced , Forchelli had not yet been formally relieved as the defendant' s counsel in the Bankuptcy Court , thereby violating the ethical precept barring a law firm from suing its own client (Hirsch Aff. , Exhs. B" see Index Nos. 17574- 10 (Marber , J. ); 16272- 08 L.L.c. v. RiskWise IntI. , L.L.c. 192 Misc. 2d County 2002), afJ' d, Hirsch (Phelan , Misc.3d. J. see also , Credit Index 755 763 (Supreme Court , 296 AD2d 318; 22 NYCRR 9 1200. Rule former Disciplinary v. , Forchelli 1 Rule 1.7 New York see 105). Thereafter , in May of2011 , Forchelli commenced this non- payment action - its third to date - in which it has interposed fee claims grounded upon breach of contract and " account stated" theories of recovery. [* 3] The defendant has answered , denied the material allegations of the complaint and interposed several affirmative defenses and a series of nine counterclaims. Forchelli now moves for: (1) summary judgment on its account stated claim; (2) dismissal of the defendant' s counterclaims; and (3) alternatively, for a default judgment based on the claim that inter alia the defendant' s answer was served one day after a previously granted extension had expired. F orchelli' s motion to dismiss should be granted only to the extent indicated below. Preliminarily, since the defendant' s opposing submissions contain an affidavit attesting to the timely service of the answer - to which no objection has been registered in F orchelli' s reply papers - that branch of the motion which is for In a default judgment should be denied. any event , and assuming the answer was served a day late , the delay was minor , no prejudice has been alleged or (see demonstrated and public policy favors the resolution on claims on the merits generally, Vinny Petulla Contracting 2d 659; defendant' Zanelli pro se v. Corp. v. Ranieri AD3d - ' 941 Jmm Raceway, LLC 83 AD3d 697). Further , while the answer was apparently labeled with the wrong index (one associated with one of F orchelli' s prior , dismissed actions), this technical [* 4] omission - also raised by Forchelli - is properly disregarded as harmless and non- prejudicial. Turning to Forchelli' s motion on its account stated theory, while an account stated wil arise where inter alia (e. objection 153- v. , Interman Indus. Prods. debtor are retained without timely S.M Electron Power White Plains Cleaning Services , 154 (1975); AD3d bils sent to a , 2012 WL 1415113 (2 Inc. Dept. 2012); v. 37 NY2d 151 901 Properties , LLC Law Offces ofKleinbaum Shurkin 88 AD3d 659), a summary judgment movant must first make a foundational showing that the invoices it relies on were sent to a client using a LLP Brophy, 19 AD3d 161 Misc. 3d. Co. , 162; Adolfen, P. Melito c. v. Travelers Indem. , 2008 WL 4308287 , at 3 (Supreme Court , New York County 2008); Elm Suspension Systems , Inc. v. Waterproofing, Skyline Restoration 2008 WL 2158108 (Supreme Court , New York County Misc. 3d. Inc. Weinstein (Morrison Cohen Singer regular office mailing practice or procedure 2008) cf, Nassau Ins. Co. v. Murray, 46 NY2d 828 829 830 (1978J). That showing has not been made here. The relevant documentary materials submitted in support of F orchelli' include inter alia: (1) the affidavit of a F orchelli to have personal knowledge of client biling s associate who does not profess and/or mailing procedures (Elm [* 5] Suspension Systems, Inc. (2) a five- v. Waterproofing, Inc. Skyline Restoration and , supra); paragraph affidavit offered by the firm s office administrator. The office the administrator asserts , in circular fashion , that she knows the submitted bills were in fact mailed , because when bils are mailed , practice of the biling it is department to place staples at the top and center of each bil in the fie - and then place them where she claims she located the center-stapled bills at issue here (Kawochka Aff. 5). Although the office administrator states that she oversees the firm s biling department Lewis Morgan , she does not describe the process by which bills are mailed; Bockius LLP v. IBuyDigital.com, Inc. at 2- 3 (Supreme Court New York County 2007) Misc. 3d. 2007 WL 258305 v. Liberty Mut. Fire Ins. cf, Badio Co. 12 AD3d 229 230), and does not assert that she has personal knowledge of whatever office practices and procedures are utilized to actually mail bils (see generally, Mid City Const. Co. , Inc. v. Sirius America Ins. Co. 70 AD3d 789 , 790; New York Co. v. Allstate Ins. Co. Presbyt. Hasp. Insulation Inc. York County 2011); Misc. 3d. 29 AD3d 547 Scottsdale Ins. 2011 WL 5118144 (Supreme Court , New Elm Suspension Systems, Inc. Waterproofing, Inc. , supra). , 548; v. Skyline Restoration & [* 6] Further , her claims that center-stapled invoices were located in a biling file is not evidence of an office mailing practice and procedure; rather , an attempt to reason backwards based on the presence of documents placed in a file the after mailing has already occurred. More specifically, although the claims made with respect to the stapling of invoices may describe how those documents appear or are maintained in a file , they are not evidence of whatever office practices are used to mail them to clients. Notably, the bils were mailed or transmitted to the defendant themselves do not establish that they v. (Scottsdale Ins. Co. Insulation Inc. supra). Significantly, " (w)here * * * (a movant) fails to prove that such invoices were properly addressed and mailed , and there is no evidence of a regular office mailing procedure , there should be no presumption of receipt" Pc. v. Travelers Indem. Co. , supra Weinstein Cohen Singer (Private) Ltd. 6 (E. v. , LLP 2008 WL 4308287 Adolfen (Melito , at3 see e. g., Morrison Brophy, supra; Afroze Textile Industries Ultimate Apparel, Inc. - F. Supp. 2d. , 2009 WL 2167839 , at Y. 2009J). Contrary to Forchelli' s contentions , the record does not establish as a matter of law that the defendant otherwise admitted to receiving the bils (Hirsch Aff. , ~ 36 see , Afroze Textile Industries (Private) Ltd. v. Ultimate Apparel, Inc. , supra 2009 WL 2167839 , at 6) - or that , to the extent partial [* 7] payments were made , these payments can be construed as an account stated with respect to the entire , multi- year series of biling Adolfen Melito v. cf, Landa , Pc. v. statements relied (accord upon Travelers Indem. Co. , supra 2008 WL 4308287 , at 3 Blocker 87 AD3d 719 , 721)(Kawochka Aff. , ~ 5). It is settled that (w)hether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent , in light of all the circumstances presented , is ordinarily a question of fact , and becomes a question of law only in those cases where only one inference is rationally possible (Yannelli Civardi , Zevin Sakal 298 AD2d 579 580 quotingfrom (2002) see v. , Landau 1016; Arrow Empl. Agency 762- 763; Landa Weissman 78 AD3d 661 v. v. , Legum v. 662; Ruthen 211 AD2d 701 703 Shelly v. Skief, 73 AD3d David Rosen Bakery Supplies 2 AD3d 762 Blocker, supra). Those branches of F orchelli' s motion which are to dismiss the negligence and attorney malpractice and related claims , as interposed in the first and second counterclaims , should also denied. To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action , the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice (Gelobter v. Fox 90 AD3d [* 8] 829 , 831; Scartozzi v. Potruch 72 AD3d 787 , 789- 790). With respect to the first counterclaim , based on alleged misconduct committed prior to 2007 in the underlying Chapter 11 bankruptcy proceeding, issues of fact exist as to whether Forchelli' s admittedly continuing, post- 2007 bankruptcy representation , operated as toll of the limitations period within the meaning of the continuous (e. g., DeStaso representation doctrine Condon Resnick, LLP 90 AD3d 809 812; Jewish Center, Inc. Putnam County Temple Perrotta 1118; Howish v. & Associates , pc. 80 AD3d 573 934 (2007); v. 84 AD3d 1312; , 574 v. Rhinebeck Sav. Bank 87 AD3d Leon Petroleum v. see generally, Zorn McCoy v. Feinman 99 NY2d 295 , 306 , LLC (2002J;Shumsky v. Carl S. Levine Gilbert 8 NY3d 933 v. Eisenstein 96 NY2d 164 , 167- 168 (2001); CPLR 214(6J). Notably, " (tJo dismiss a cause of action pursuant to CPLR 3211 (aJ(5) on the ground that it is barred by the applicable statute of limitations , a defendant bears the initial burden of establishing, prima facie that the time in which to sue has expired" (DeStaso Condon Resnick, LLP , supra 90 AD3d 809 812). Contrary to Forchelli' s assertions (Gatto Aff. , ~~ 45- 46), the conclusorily supported claim that its subsequent representation was entirely distinct because the bankruptcy proceeding was converted from a Chapter 11 to a Chapter 7 proceeding (Gatto Aff. , ~ 43; Gatto Reply Aff. , ~~ 33- 37), does not establish its , " , " , ~ g., [* 9] entitlement to judgment as a matter of law. Similarly, the defendant' s over biling and related claims (as interposed in the second counterclaim) to summary resolution at this essentially prev. generally, Gelobter Fox 90 AD3d 829 are not amenable (see discovery juncture of the action Adolfen Melito , 831; , P. C. v. Travelers Indem. Co. , supra 2008 WL 4308287 , at 3 see also , Bank of America NA. v. Hillside Cycles, Inc. 89 AD3d 653 Valdivia , 654; v. Consolidated Resistance Co. of America, Inc. 54 AD3d 753 , 755). The Court notes that in advancing several of its factual claims , Forchelli relies on inconclusive snippets of testimony culled from the defendant' of the prior dismissed Forchell non, 53; Reply Aff. deposition , which was taken in one pro se Gatto Aff. , ~~ 31 (e. payment actions Kings County Waterproofing Corp. , 29 30)(cf, Baillargeon AD3d 838 , 839). Summary judgment is a drastic remedy which may be granted only where there is no clear triable issue of fact Mosheyev v. Pilevsky, (Andre v. 283 AD2d 469). Indeed 35 NY2d 361 (1974); Pomeroy, (e )ven the color of a triable issue forecloses the remedy (In re Cuttitto Family Trust Robbins 191 AD2d 488 489). Moreover 10 AD3d 656; Rudnitsky v. (a)s a general rule , a party does not carr its burden in moving for summary judgment by pointing to gaps in its '" [* 10] opponent' s proof, but must affirmatively demonstrate the merit of its claim or Lamour defense (Fromme City, Inc. Starrett 90 AD3d 909 910). However v. see 292 AD2d 417 , Forchelli has established its v. , Tsekhanovskaya prima facie entitlement to judgment dismissing the remaining counterclaims interposed by the defendant the third through ninth counterclaims. The third through fifth counterclaims allege that F orchelli committed the tort of malicious prosecution by commencing the two prior actions in violation of ethical rules governing attorney conduct. To the extent that the foregoing claims are predicated on alleged violations of the professional rules of conduct , they fail to state a cause of action , inasmuch as no private right of action lies for such an alleged violation (see , Shapiro McNeill 92 NY2d 91 Condon Resnick, LLP , supra 90 AD3d 809 814; DeStaso v. 97 (1998); Kantor Bernstein 225 AD2d 500 , 502). In any event , while Forchelli' s two prior actions were dismissed , both orders provided that the dismissals were " without prejudice i. e. neither Court reached the merits of the claims made , but instead , predicated the dismissals on matters unrelated to the substance of fee claims advanced (Hirsch Aff. , Exhs. '" [* 11] It is settled that to succeed on a claim alleging the malicious commencement of civil proceedings , the prior action must terminate favorably to the party asserting the claim , meaning that , evidence must be adduced establishing ''' the court passed on the merits of the charge or claim * * * under such circumstances as to show * * * nonliability, ' or evidence that the action was abandoned under circumstances ' which fairly imply the plaintiffs innocence Plastic Hand Surgery, pc. , Reconstructive Pagliarulo v. Pagliarulo East End 47 AD3d 608 609 quoting from accord, Hudson Valley Marine, 30 AD2d 840 Town of Cortlandt 79 AD3d 700 v. (Castro , 703; Adwar Furgang v. , LLP Inc. v. Fiber- Shield Industries , Inc. 55 AD3d 665 , 566). Lastly, those branches of the motion which are to dismiss the sixth through ninth counterclaims - asserting claims for sanctions and costs based on 22 NYCRR 9 130- 1; CPLR 8303-a - should also be dismissed since there is no Ins. Brokerage Corp. 90 AD3d 967 II, LLC 90 AD3d 552 , 554; Schwartz v. (Cerciello independent cause of action for the recovery of sanctions , 968; 360 West 11th LLC v. Admiral ACG Credit Co. Sayah 72 AD3d 790; 792)(Ans. ~~ 45- 54). The Court has considered Forchelli' s remaining contentions and concludes that they do not support an award of relief except to the extent granted above. [* 12] Accordingly, it is ORDERED the motion by the plaintiff Forchelli , Curto , Deegan , Schwartz Mineo, Cohn & Terrana , LLP , aI. for inter alia summary judgment on its complaint and for dismissal of the defendant Nachama Hirsch' s counterclaims , is granted to the limited extent that the third through ninth counterclaims are dismissed , and the motion is otherwise denied. The foregoing constitutes the decision and order of th Dated: May 4 , 2012 ENTERED MAY 0 7 NASSAU CVUN 2012 I V COUNTY CLERK" OfFICE

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