Eaton & Van Winkle LLP v Wampler

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Eaton & Van Winkle LLP v Wampler 2012 NY Slip Op 31503(U) June 4, 2012 Sup Ct, NY County Docket Number: 102517/11 Judge: Richard F. Braun 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] I I vs 1I WAMPLER, JOHN I Sequence Number : 001 DlSM ACTION/ INCONVENIENT FORUM TI 1 4 ~ . -'-7-+ 1 , I J NEW Y W ~ K CLERK'S cy4 h ' CQlJNn D c W : ,W+J\) \ K; pvc/h. i y h j$.&L 1, CHECK ONE: ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION I : S DENIED GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SET7Le ORDER >rJc+ , , ,;; J.S.C. I ON-FINAL DlSPOWtQN m6Gd IN PART NTED OTHER 0SUBMIT ORDER 4 DO NOT POST f IQUClARV APPOlNtM6NT 0RSFeRENC6 [* 2] SUPREME COURT OF THE STATE OF NEW Y O U COUNTY OF NEW YORK: IAS PART 23 X EATON & VAN WINKLE LLP, _ - - - _ _ _ _ _ l _ l l _ _ _ _ _ _ _ r _ _ _ l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - Index No. 102517/11 OPINION Plaintiff, -against- JOHN WAMPLER, MARK GASARCH, PETRO-SUISSE LIMITED, BARBADOS, PETRO-SUISSE LIMITED, NEW YORK, TRINCAN OIL LIMITED, SWISS PETROLEUM INVESTMENTS LIMITED, WEST INDIES EXPLORATION COMPANY LIMITED, LOS BAJOS OIL LIMITED, DRILLING INTERNATIONAL SERVICES AND SUPPLY LTD., CONTINENTAL DRILLING CORPORATION, GASMARK COW., Defendants. I i J!IN 0 7 2012 NEW YORK COUNTY CLERKS OFFICE RICHARDBRAUN, F. J.: This is an action for damages for breach of contract, fraud, promissory estoppel, quantum meruit, and an account stated. Defendant John Wampler (Wampler) moves to dismiss the complaint for failure to state a cause of action (CPLR 321 1 [aJ [7]). Defendants Mark Gasarch (Gasarch), Petro-Suisse Limited, New York (Petro-Suisse NY), and Gasmark C o y . (Gasmark) separately move to dismiss the first, second, third, and fifth causes of action of the complaint, pursuant to CPLR 32 1 1 (a) (1) and (7). Defendants Petro-Suisse Limited, Barbados (Petro-Suisse Barbados), Trincan Oil Limited, Swiss Petroleum Investments Limited, West Indies Exploration Company Limited, Los Bajos Oil Limited, Drilling International Service and Supply Ltd., and Continental Drilling Corporation separately move, pursuant to CPLR 321 1 (a) (7), for an order dismissing the complaint [* 3] as against them. On a motion pursuant to CPLR 32 11 (a) (1) and (7), a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (Wiener v Luzard Freres & Co., 24 1 AD2d 1 14, 120 [ 1'' Dept 19981; see Sokolqff'v Harriman Estates Dev. Corp., 96 NY2d 409,414 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). To succeed on a CPLR 321 1 (a) (1) motion to dismiss, the documents upon which the movant relies must definitively dispose of the cause(s) of action of the opposing party (see AG Capital Funding Partners, L. P.v State St. Bank & Trusl Co., 5 NY3d 582,591 [2005]; Scott v Bell Atl. Corp., 282 AD2d 180, 183 [ 1'' Dept 20011; Fischbach & Moore v Howell Co., 240 AD2d 157 [ 1It Dept 19971). All of the motions have been made at the pleading stage of this action. Plaintiff pleads causes of action for breach of contract, fraud, promissory estoppel, quantum meruit, and an account stated. The second and third causes of action do not lie. The elements of a breach of contract cause of action are (1) the formation of a contract between a plaintiff and a defendant, (2) performance by the plaintiff under the contract, (3) the defendant's failure to perform thereunder, and (4) resulting damage to the plaintiff (see Noise In The Attic Prods., Inc. v London Records, 10 AD3d 303,307 [ lstDept 20041). Plaintiff has set forth such a claim in the complaint. Only defendants Gasarch, Petro-Suisse NY, and Gasmark have moved to dismiss under CPLR 321 1 (a) (1), but, as the essence of the CPLR 321 1 (a) (1) ground has been argued by all defendants, and plaintiff has argued in opposition thereto, there is no prejudice to plaintiff in this court's deciding all motions on that ground (see Dean R. Pdton Co. v Moundsville Shopping Plaza, 173 AD2d 201 [ 19'Dept 19911). The written retainer agreement was only between plaintiff and defendants Wampler and Petro-Suisse Barbados for an action prior to the 2009 and 2 [* 4] 2010 actions. Although a written retainer agreement pursuant to 22 NYCRR 1215.1 (a) is not required for an attorney s legal services of the same general kind as previously rendered to and paid for by the client (22 NYCR 1215.2),the subsequent services performed by plaintiff in the 2009 and 20 10 actions were not of that nature so as to eliminate plaintiffs need to obtain a subsequent retainer agreement. Thus, the CPLR 321 1 (a) (3) branch of the motion must be granted, and plaintiff is relegated to its claims for quantum meruit and an account stated against defendants (see Roth Law Firm, PLLC v Sands, 82 AD3d 675,676 [ lST Dept 201 11; Kramer Levin Nuftalis & Frankel LLP v Canal Jean Co., Inc., 73 AD3d 604, 605 [lSt Dept 20101). Plaintiffs fraud cause of action grows out of the contract cause of action and is not so distinct therefrom as to be able to be separately maintained (see Cslle v Burclays Bank P.L. C.,48 AD3d 30 1, 302 [lstDept 20081; Orix Credit Alliance v Hable Co., 256 AD2d 114, 115 [lglDept 19981 [ (a) fraud claim that only restates a breach of contract claim may not be maintained (citation omitted). ]; Kruntz v Chateau Stores ofCunada, 256 AD2d 186,187 [ 1 Dept 19981;Metropolitan Transp. Auth. v Triumph Adv. Prods., 116 AD2d 526, 527 [l , Dept 19861). The same rule applies to the L. promissory estoppel cause of action (CeZZe v Barclays Bank P. C.,48 AD3d at 303). None of the meritless causes of action of plaintiff are saved by its alter ego or pierce the corporate veil arguments. To succeed on such a theory, the party asserting the concept has a heavy burden (TNS Holdings v MKISec. Corp., 92 NY2d 335, 339 [1998]). Evidence of domination of a corporation alone is insufficient. (id.) The party must demonstrate the domination was fraudulent or caused wrongful or inequitable results to the plaintiff ( i d ; Muller of Morris u New York State Dept. qf Taxation & Fin., NY2d 135, 141 [1993]; Fisher u Zuks, 48 AD3d 251 [lstDept 20081; 82 Sheridun Broudcasting Corp. v Small, 19 AD3d 33 1,332 [ 1 Dept 20051). Plaintiff has not alleged that here. 3 [* 5] I - . t 1 L To prevail on a claim for quantum meruit, a plaintiff must allege (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services (citation omitted). (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487,488-489 [ lqtDept20091.) Plaintiff has pled such a claim. An account stated cause of action consists of sending bills to a party who retains them and does not object to them within a reasonable time period (Bartning v Bartning, 16 AD3d 249,250 [ 1 Dept 2005 3). Plaintiff has alleged such a claim against all defendants. Furthermore, as to defendant Wampler, plaintiff has shown that he made what can be construed as an admission of liability in relation to the invoices (see Murchi Jafe Cohen Crystal Rosner & Kutz v All-star Video Corp., 107 AD2d 597, 599 [lgt Dept 19851). The submissions by defendants Gasarch, Petro-Suisse NY, and Gasmark are not adequate to support the dismissal of this claim against them because the invoices ate only made out to Petro-Suisse Ltd., which could either be Petro-Suisse NY or Petro-Suisse Barbados, and the invoices do not contain amounts to show that all of the invoices that were sent are included in the submission. Therefore, by this court s May 30,2012 decision and order, the first, second, and third causes of action were dismissed as against defendant Wampler. By this court s June 1,2012 decision and order, the first, second, and third causes of action were dismissed as against defendants Gasarch, Petro-Suisse NY, and F p m a r k . By this court s other June 1, 2012 decision and order, the first, 1 second, and third causes of action \Fre I i s r L f s E B n s t the other moving defendants. 4

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