Filler v Motta

[*1] Filler v Motta 2012 NY Slip Op 50710(U) Decided on April 2, 2012 Civil Court Of The City Of New York, Richmond County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2012
Civil Court of the City of New York, Richmond County

Martin M. Filler, Plaintiff,

against

Anthony Motta, Respondent.



CV-008532/RI



Martin M. Filler, Plaintiff Pro-Se

Anthony Motta, Defendant Pro-Se

Katherine A. Levine, J.

Plaintiff Martin M. Filler ("Filler" or "plaintiff") brings this action to recover the amount of $25,000 from defendant Anthony Motta ("defendant"or "Motta"), who he retained as his attorney , because Motta 1) breached the contract; 2) engaged in malpractice by failing to pursue the claim in a proper and reasonable manner; 3) fraudulently induced plaintiff to enter into the contract; 4) deliberately misrepresented certain facts and situations; and 5) is not entitled to receive the consideration paid to him due to his failure to follow the instructions and directions of the plaintiff. As a sixth cause of action, plaintiff seeks an action on the merits of the fee dispute.

Defendant counterclaims for $25,220.07 on the grounds that he rendered legal services to plaintiff at the "agreed and fair and reasonable value" of $30,220.07, none of which has been paid except for the retainer of $5,000. Defendant asserts that plaintiff agreed to pay on an hourly basis for the services rendered by defendant and that he represented plaintiff and the entities in which plaintiff had an interest for one and a half years. Extensive testimony was elicited at trials and voluminous exhibits were submitted by defendant to substantiate his work.

Background Facts

This litigation has its genesis in problems that plaintiff's son's music company, "Artists and Producers Corp. d/b/a Code Red Records ("Code Red"), incurred in collecting money on a [*2]recording venture. Plaintiff was the financial backer of his son's venture. Code Red produced and released an album ("album") by an urban recording artist Darryl Hill p/k/a Cappadonna ("artist" or "Hill"). In 2003, Code Red contracted with Select - O - Hits ("SOH"), headquartered in Memphis Tennessee, to distribute the album. However, SOH refused to dispense the sum of $73,232.60, which represented the proceeds from the sale of the album, to Code Red. Rather, SOH held this amount in escrow (the "Fund") due to competing claims brought by a third party - Killah Pride Entertainment Inc., ("Killah Pride") - a California based record company, who claimed that its agreement with Hill was exclusive and precluded Hill from signing with any other record label.

Contrary to Filler's assertion that Motta fraudulently represented himself or somehow lured Filler into utilizing his services, the record is clear that there was a longstanding relationship between Motta and his associate Andrew Krenz and Mr. Hill. The parties also do not dispute that plaintiff and his son had prior dealings with Motta and Krenz and that defendant did hold himself out as a specialist in entertainment law.

Commencing in 2002, Mr. Krenz represented Daryl Hill in his dispute over whether he had signed an Exclusive Artists Recording Agreement ("Agreement") with Killah Pride (see multitude of letters included in Background Documents, Defendant's 5).[FN1] For example, on March 3, 2003, Mr. Harley, local counsel for Killah Pride, put prior counsel for Code Red on "formal notice" that Hill had signed exclusively with Killah Pride and that his intention to release an album in spring 2003 with Code Red would put him in material breach of the agreement.

At some point in 2003, plaintiff Filler became involved in this dispute. By letter dated November 12, 2003, Filler wrote to Mr. Harley concerning his contacting SOH, "a company with whom we have a valid and existing distribution." Filler advised Harley that this contact was an attempt to "interfere with our contract" and that Harley would be held personally responsible should any damages result. In this letter, Filler refers to Krenz as "previous legal counsel" for Hill. Curiously, neither plaintiff nor defendant explain why Krenz's representation of Hill ceased. Yet, on that same day, Harley writes to Krenz in his capacity as Hill's attorney, and reiterates Killah Pride's position about the exclusivity of the Agreement and Hill's failure to record two more albums with Killah Pride as required by the Agreement. Harley then indicates that he is trying to resolve the matter amicably but will pursue litigation if Krenz continues to be difficult.

By letter dated November 14, 2003, Krenz advised Harley that he and his clients had interfered with his client's business relationship with SOH, that Harley's accusation that he personally had dealings with SOH was "wholly erroneous," and that if Killah Pride sued him alleging tortuous interference with contract he would seek sanctions against him. Filler was c" target="_blank">AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 (2007); Ofman v. Katz, 89 AD3d 909 (2d Dept. 2011); Cruciata v Mainiero, 2011 NY Slip Op 50066(U), 30 Misc 3d 1214(A) (Sup. Ct., NY Co. 2011). The standard of care expected of an attorney must be established by expert testimony. Merlin Biomed Asset Management v. Wolf Block Schorr & Solis-Cohen, 23 AD3d 243 (1st Dep't 2005). The selection of one among several reasonable courses of action does not constitute malpractice, even if the attorney committed an error of judgment. Rosner v. Paley, 65 NY2d 736 (1985).

Here, defendant ultimately obtained the relief for which he was retained and was not negligent in pursuing claims on behalf of plaintiff. Nor did plaintiff present any expert evidence that Motta failed to exercise ordinary reasonable skill and knowledge in pursing the claims. The cause of action for breach of contract is similarly dismissed as it is duplicative of the legal malpractice claims, arose from the same set of facts and did not seek distinct and different damages. Campagnola v. Mulholland, 76 NY2d 38, 42 (1990); Ofman v. Katz, supra, 89 AD3d at 910; Alizio v. Feldman, 82 A..D. 3d 804, 805 (2d Dept 2011).

The Court also dismisses the causes of action averring fraudulent inducement to enter into a contract and deliberate misrepresentation of facts. Fraud is generally defined as behavior involving intentional, false representations, and scienter, or knowledge of falsity, as well as reliance and injury on the part of the plaintiff. Gaidon v. Guardian Life Ins. Co., 94 NY2d 330, 348 (1999); McCluskey v. Gabor & Gabor, 2008 NY Slip Op 50234(U), 18 Misc 3d 1129(A) (Sup. Ct. Nass. 2008). A "general practice" of false representations is not an element of a common law fraud cause of action. McCluskey, supra at 8. Absent a present intention to deceive, a statement of future intentions, promises, or expectations is not actionable on the grounds of fraud. Id. A complaint based upon a statement of future intention must allege facts to show that the defendant, at the time that the promissory representation was made, never intended [*5]to honor or act on his statement." Non-Linear Trading Co. v. Braddis Associates, 243 AD2d 107, 118 (1st Dep't 1998); McCluskey v. Gabor, supra.

Filler has failed to provide any evidence that Motta intentionally made any false representations or possessed a present intention to deceive. The Court does not understand why Motta represented that based on his prior dealings with SOH, the matter could easily be resolved. SOH consistently insisted that it needed a court order declaring that the 2002 agreement between Killah Pride and Hill was not exclusive, and did not preclude Hill from rendering services as a recording artist for Code Red, before it would release the funds. However, any surprise or annoyance that Filler now expresses about the difficulty Motta had in obtaining relief against Killah Pride and SOH is belied by the fact that Filler was aware or should have been aware of both Killah Pride and SOH's intransigence towards his son's claims from as early 2003. The record establishes that all parties had extensive dealings with SOH and Killah Pride and that Filler communicated directly with Killah Pride's local attorney. As such, Filler should have taken Motta's representation with a grain of salt as it was clear from the passage of time that neither Motta nor any other attorney could work magic and instantaneously obtain a declaratory judgment that the Agreement was non -exclusive.

Nor does the Court find that Motta was discharged for cause. Initially, it is well settled that a client may discharge an attorney from the further performance of services at any time, with or without cause. Mtr of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658 (1993); In re Estate of Stevens, 252 AD2d 654(3rd Dept 1998); Celife v Ellis, 2008 NY Slip Op 33069(U), 2008 NY Misc. LEXIS 9788 (Sup. Ct., Queens Co. 2008). If the attorney is discharged without cause before the completion of services, he is entitled to recover the fair and reasonable value of the services rendered under the theory of quantum meruit. See, Rosner v. Paley, 65 NY2d 736, 738 (1985)( dissatisfaction with reasonable strategic choices made by attorney regarding litigation do no constitute cause for discharge); Fields v Leeponis, 95 AD2d 822 (1983); Kyle v Kyle, 94 AD2d 866 (3rd Dept. 1983); Dagny Mgt. Corp. v Oppenheim & Meltzer, 199 AD2d 711, 712 (3rd Dept. 1993). Personality conflicts, misunderstandings and differences of opinion "having nothing to do with impropriety by the lawyer do not constitute cause. Allstate Ins. Co. v Nandi, 258 F. Supp. 3d 309, 312 (S.D.NY 2003). If, however, the discharge is for cause, the attorney is not entitled to any compensation. Garcia v. Alvarez, , 2004 U.S. Dist. LEXIS 13854 at 6 (E.D.NY 2004) aff'd 443 F.3d 202 (2006); In re estate of Stevens, supra at 655; Dagny Mgt. Corp. v Oppenheim & Meltzer, supra, at 712.

Despite the often significant financial consequences flowing from an attorney's discharge, the New York courts have not explicitly defined "for cause." Garcia v. Alvarez, , supra at 6 (E.D.NY 2004). "Unlike the analysis in a subsequent malpractice action, the 'for cause' inquiry simply asks whether the client was justified in terminating the attorney-client relationship." D'Jamoos v. Griffith, 2006 U.S. Dis. LEXIS 50757 (E.D.NY 2006). Although a client terminating his attorney for cause need not show actionable malpractice, the New York Court of Appeals has not defined a clearly distinct "for cause" standard apart from the "malpractice" standard. See e.g., [*6]D'Jamoos, supra at 9; Marschke v. Cross, 82 AD2d 944 (3d Dep't 1981) (offering no definition at all). See also, In re estate of Stevens, supra at 655 (significant delay in prosecution of case to the point action not commenced until two days prior to expiration of statute of limitations and failure to send demand letter to insurance company); Dagny Mgt. Corp. v Oppenheim & Meltzer, supra, at 712 (firm's interference with the client's right to settle constitutes misconduct sufficient to rise to a level warranting discharge for cause and forfeiture of its fee). A for cause finding requires a "significant breach of a legal duty." . Allstate Ins. Co. v Nandi, supra at 312.

While Motta may have taken longer than usual to research and ascertain how to serve Killah Pride in California, draft a motion in support of a default judgment, or reach an indemnity agreement with SOH, he did not fail to exercise ordinary reasonable skill and knowledge. The record also corroborates defendant's assertion, that neither plaintiff nor Code Red did anything for over three years to obtain recovery from the Fund or to legally challenge Killah Pride's interpretation of the Agreement. Of greater import, plaintiff failed to show that he was actually damaged by Motta's actions since Motta ultimately accomplished what he was retained to do - obtain a default judgment against Killah Pride, which was upheld even after Killah Pride sought reargument, and draft an indemnity agreement which would result in SOH releasing the funds. Filler did not express any dissatisfaction with either the time it took Motta to produce legal papers or serve them, or the substance of Motta's work, until he received Motta's second bill for services dated May 16, 2008 which, combined with April 15th bill totaled taking into account the $5000 retainer that Filler had already paid. The Court can only conclude that it was the amount of money that Motta claimed was due and owing that spurred the instant lawsuit and Filler's dissatisfaction with Motta's work.

Given this Court's determination that there is no merit to plaintiff's claim that he discharged Motta for cause, Motta is entitled to recover for his services under a quantum meruit theory. This is the case even though Motta did breach the retainer agreement by failing to send monthly statements describing services provided and disbursements incurred, or provide Filler with an assessment of the case and "an estimate of future fees and disbursements." See, Petition of Rosenman & Colin v. Richard, 850 F.2d 57, 63 (2d Cir. 1988). Nabi v. Sells, 70 AD3d 252 (1st Dept. 2009); Miller v. Nadler, 60 AD3d 499 (1st Dept. 2009) (Plaintiff's failure to comply with the rules on retainer agreements pursuant as per 22 NYCRR 1215.1) does not preclude it from suiting to recover legal fees for services provided under the theory of quantum meruit). Further, "a client may not use an attorney's noncompliance with 22 NYCRR §1215.1 as a sword to recover fees already paid for properly-earned legal services." Laddcap Value Partners, LP v Lowenstein Sandler P.C., 2009 NY Slip Op 30540(U), 2009 NY Misc. LEXIS 3689 (Sup. Ct., NY Co. 2009) citing Beech v Gerald B. Lefcourt, P.C., 12 Misc 3d 1167(A), 820 N.Y.S.2d 841 (Civ. Ct. NY Co. 2006).

22 NYCRR §1400.3, entitled "Statement of client's rights and responsibilities" provides that a client is entitled to receive a written itemized bill on a regular basis, "at least every 60 days." However, part 1400 only applies to matrimonial/domestic relations matters and hence does not govern the instant matter. Seth Rubinstein v. Ganea, 41 AD3d 54 (2d Dept. 2007). Cf, [*7]Meirowitz v. Cohn, 2010 NY Slip Op. 51871U, 20 Misc 3d 1218A (Sup. Ct., Nass. Co. 2010); Mallin & Associates v. Nash, 18 Misc 3d 890 (Civil Ct., NY Co. 2008). Therefore, attorneys who fail to send out bi-monthly bills to non-matrimonial clients may recover the reasonable value of their services rendered on a quantum meruit basis. Rubinstein, supra, 41 AD3d at 61-62. The Court also notes that Filler should not have been totally surprised that Motta had exhausted the retainer since Motta did at times write Filler over the course of the litigation, albeit not as frequently as might be expected, and sent him copies of all papers he filed.

In fixing an award of legal fees in quantum meruit, the Court must consider "the time spent, the character and nature of the services rendered, the complexity, difficulty and novelty of the case and the issues confronting the attorney, the attorney's standing in the bar and his professional reputation and experience, the skill exercised in handling the case, the possible consequences of the action and the result obtained." Newman v. Silver, 553 F. Supp. 485, 496 (S.D.NY 1982), aff'd in part and vacated in part, 713 F.2d 14 (2d Cir. 1983). See DeGregorio v. Bender, 52 AD3d 645, 646 (2d Dept. 2008). See also, Petition of Rosenman & Colin v. Richard, 668 F. Supp. 788, 799 (S.D.NY 1987) (setting forth guidelines for determining the reasonableness of a fee set out in DR-2-106(B)).

Initially, the Court finds that Motta's fee of $250 per hour is reasonable given Motta's expertise in the area of entertainment law and his years out of law school. The Court will not order that Motta return the retainer amount of $5,000 since it is clear that Motta performed work way beyond twenty hours. Motta accurately summarized the status of the case when he was retained in December 2006: that as a result of the claim made by Killah Pride, SOH refused to release funds to Code Red until "either Killah Pride and Code Red came to an agreement on the release of the Fund or there was a court order or judgment determining the rights of the parties to the Fund."

Defendant claims that on February 15, 2007, he commenced an action in Supreme Court, Richmond County on behalf of Code Red and against Killah Pride seeking a declaration that the Killah Pride Agreement did not create an exclusive relationship, did not preclude Hill from rendering services as a recording artist to plaintiff Code Red and that Killah Pride had no claim to the escrow Fund being held by SOH. From January 3, 2007, when Motta started working on the complaint through February 8, 2007, when the complaint was completed, Motta billed for approximately eight hours. The complaint is three pages and asserts information and claims that Motta /Krenz were aware of since 2003. As such the Court only will permit a total of five hours for the review and preparation of the summons and complaint (deduction of $750). By e mail dated February 7, 2007, Motta informed Filler of and emailed the complaint.

After two failed attempts to serve Killah Pride in California in early March, Motta researched California Law "as to the legal basis for serving "the California Secretary of State. It took Motta four months to research this issue and prepare an ex parte order and affirmation in support [*8]thereof to present to Supreme Court, Richmond County, for which Motta billed five hours (entries from 7/2/ 2007 through 9/ 17/ 2007). The Court reduces the allowable amount by two hours (deduction of $500). The Court also notes that Motta, through Krenz, knew as far back as 2002 that Killah Pride had a local counsel in New York - Mr. Harley, who in fact moved to vacate a default judgment entered against Killah Pride in February 2008.

On October 11, 2007, the Hon. Robert J. Gigante signed the exparte order permitting substituted service upon the California Secretary of State. Motta then charged two hours researching the service of the order upon the Secretary of State. Service, which was effectuated on October 16, 2007. As Motta had previously researched this issue, the allowable amount is reduced by one hour (deduction of $250).

Between December 10 and January 18, 2008. Motta billed a total of 7.4 hours to prepare a proposed judgment and papers in support of the application for a default judgment which consisted of a two page affidavit of merit from Ross Filler, plaintiff's son, (12/10/07 - 2.6 hours ), a court appearance on a preliminary conference and advise status" (12/11 - 2.7 hours),check status (21/31/07 - 2 hours) and review the default judgment and prepare a letter to Mr. Malouf, counsel for SOH (1/18/08 - 1.9 hours). This one page letter, a copy of which Motta sent to Filler, informs Maloof of the default judgment, attaches a copy of a "proposed letter agreement" which Maloof had previously prepared (not attached as an exhibit) and reiterates Maloof's alleged statement to Motta during the previous year that SOH would pay out monies held in conformity with a court judgment as to entitlement to funds. [FN2] The Court reduces the total of 7.4 hours by two hours ( deduction of $500). Maloof then e mails Motta that Killah Pride's counsel informed him that they had no notice of suit and would move to vacate.

In early February, 2008 Motta informed Maloof that SOH had breached the Distribution Agreement by failing to have SOH release the funds and that he was designating two individuals as mediators in Tennessee to attempt to resolve the matter. Motta also e- mailed Maloof that plaintiff Filler, "who has funded Code Red" was willing to provide an indemnity to benefit SOH int the event Killah Pride sought to recover payments made to SOH under the Distribution agreement and that Filler was willing to provide a financial statement "showing assets in the millions." Motta billed a total of 4.7 hours between January 24, 2008 and February 13, 2008 for phone conversations with Mr. Malouf, concerning mediation, research regarding the Tennessee mediator, discussions about indemnification, etc. None of these matters appeared to involve new legal research and in fact were basically a reiteration of the problems plaguing Code Red since 2003. The Court reduces the amount charged to 2.7 hours (deduction of $500). [*9]

By letter dated February 25. 2008, Motta wrote Malouf about his refusal to commit to writing his previous assurance that SOH would release funds it held upon Code Red's obtaining a court ordering determining its rights vis a vis Killah Pride and upon Code Red indemnifying SOH against any claims made by Killah Pride (see letter dated February 25, 2008). Motta wrote that SOH was continuously backtracking and not acting in good faith. He then advised Maloof to provide the parameters of an acceptable financial statement for an indemnitor and advised that it this matter could not amicably be resolved prior to March 7, 2008 he would seek arbitration under the Distribution agreement. Between February 26th and March 4, 2008, Motta billed 4.4 hours for the work he performed concerning the indemnity agreement and arbitration demand. The Court reduces this to three hours as some of the matters billed for appeared to be duplicative of those bills described in the previous paragraph (deduction of $350).

Motta's next set of bills revolve around the work he did in opposition to Killah Pride's motion to vacate the default judgment brought by Attorney Harley, who, as previously noted, had prior communications with Motta and Krenz in 2003. Harley averred in his affirmation in support of the motion to vacate that Code Red had not exercised reasonable diligence in personally delivering process since it was aware that plaintiff was represented by counsel in New York and failed to notify hin. On March 24, 2008, Motta submitted an affirmation in opposition to the motion to vacate and an accompanying eight page memorandum of law. By Order dated April 1, 2008, Justice Fusco denied defendant's motion to vacate the default judgment.

From March 11th through April 1st Motta charged 21.04 hours to review the motion to vacate the default order, research issues, prepare the draft memorandum of law, prepare for and appear in court on the motion, and speak with SOH attorney Bob Malouf. The Court reduces the four hours billed on March 20 to check the pendency of motion and research legal issues to two hours, since the standard for vacatur of a default judgment is cut and dry and easily accessible through legal research and since Motta also billed for legal research on March 21st (deduction of $500). The Court also reduces the four hours billed for preparation for a court appearance and court appearance on March 28th from four hours to two hours. Defendant did not appear and the Court did not indicate there was oral argument.(deduction of $500).

The Court finds the hours Motta billed between April 4 and April 11 concerning his work on the proposed indemnity agreement, and telephone call with Filler regarding the case status, to be reasonable. By cover letter dated April 15, 2008, Motta sent Filler a invoice for services rendered with an amount due of $23, 552.42. Motta also informed Filler that Harley had served a motion to reargue Judge Fusco's order denying the motion to vacate. Motta also asked Filler's input on the changes that Maloof was seeking on the proposed Indemnity agreement.

Between April 15th and May 16th, Motta billed Filler for seven hours work concerning reviewing the motion to reargue, preparing opposition to the motion to reargue, and discussions with Maloof regarding the wording of the indemnity agreement. The Court reduces the amount [*10]billed by one hour as again, there was nothing novel about responding to the motion to reargue brought by Killah Pride (deduction of $250).

Given the Court's disallowance of the $11,325.00 billed by Krenz and its deductions in the amount of $3,350, the Court finds that Motta is entitled to recover $15, 545.07 for work performed in this case under the theory of quantum meruit ( reduction in amount off $14,675.00). Since Filler already paid the retainer of $5,000, Motta is entitled to a judgment of $10,220.07 plus interest from June 21, 2008 and statutory costs. This constitutes the decision and order of the Court.

Dated: April 2, 2012

Katherine A. LevineJudge, Civil Court Footnotes

Footnote 1:The background documents submitted as Defendant's Exhibit "E-5" are not complete; either pages are missing from some of the letters or actual letters were not included in this exhibit.

Footnote 2: Motta informed Filler that he had served the California Secretary of State, that Killah Pride failed to answer and that he had received a certified copy of the default judgment against Killah Pride.