Pasquale v Heppt

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Pasquale v Heppt 2013 NY Slip Op 31560(U) July 15, 2013 Supreme Court, New York County Docket Number: 112890/2011 Judge: Doris Ling-Cohan 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 ON 711712013 [* 1] . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 36 Justice Index Number : 112890/2011 DE PASQUALE, VINCENT INDEX NO. vs MOTION DATE HEPPT, JOSEPH M. Sequence Number : 002 MOTION SEQ. NO. DISMISS The following papers, numbered 1 to Notice of MotionlOrderto Show Cau Answering Affidavits - Exhibits 7 ,were read on this motion tdirr ffidavits &5 - r * . x5 - Exhibits INw oINo(s). INo(s). 7 Replying Affidavits Upon the foregoing papers, it is o 4 G & J k-Lr7hL- 4;-5-; 6 red that this motion is LL&h $ L [L, e ; u CICLOL-&LCC l d4 4 - 6 2 . &&-j y/&i. COUNTY CLERK'S OFFICE NEW YORK Dated: 1. CHECK ONE 7\\!!p ............................................ ........... 3. CHECK IF APPROPRIATE: ............ 2. CHECK AS APPROPRIATE: ............. 0 CASE DISPOSED ION IS: GRANTED dNON-FINAL DlSPOStTlON 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE 0DENIED ........... 0SETTLE ORDER 0DO NOT POST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 36 ________________--_---------------------- $jJL X J VINCENT DE PASQUALE AND LILLIAN DE PASQUALE, Plaintiffs, e:-.,+ iii (I-+ ~ i 3 COUNTY CLERK S OFt-JCE NE W YOKK Index No. 112890/11 -againstMotion Seq. No.: 002 J O S E P H M. HEPPT, ESQ., Defendant. In motion sequence 002, defendant Joseph M. Heppt, Esq. moves, pursuant to CPLR 3211 (a) (1) and ( 7 ) , to dismiss the plaintiffs complaint against him, prior to the filing of an answer. This action arises out of the defendant s legal representation of plaintiff Lillian De Pasquale (Lillian) in an underlying action involving the disputed estate of her late husband, Joseph De Pasquale (Joseph), as well as the legal representation of plaintiff Vincent De Pasquale (Vincent), son of Lillian, for employment and contract claims in a separate matter. The following factual allegations are set forth in the complaint, and for the purposes of this motion are accepted as true. Lillian was the executrix of Joseph s estate. In 2005, Daniel De Pasquale (Daniel), brother of Joseph, commenced an action against Lillian in Supreme Court, Queens County (the 1 [* 3] Estate Action). In March 2009, Lillian agreed to settle the Estate Action with Daniel, and t h e s e t t l e m e n t w a s e n t e r e d i n t o on t h e record b e f o r e t h e c o u r t . In April 2009, Lillian and Vincent engaged the legal services of defendant, and allegedly paid him a retainer of $5,000 each, for a total of $10,000. Lillian allegedly retained defendant, a f t e r a s e t t l e m e n t w a s reached i n t h e E s t a t e A c t i o n , which was entered on the record, to complete the settlement of the Estate Action, while Vincent allegedly retained defendant to research and litigate claims relating to employment and contractual issues in a separate matter. In regard to the Estate Action, the complaint alleges that defendant was unable to achieve a negotiated disposition with opposing counsel, and, therefore, recommended that Lillian file an order to show cause, requesting that the court vacate the settlement entered into on the record. Defendant advised Lillian that the motion was "an uphill battle." Defendant told Lillian, however, that this was her only option other than paying the full amount of the settlement. Lillian agreed to this strategy. As the order to show cause was pending, opposing counsel moved to enforce the settlement agreement, and a judgment was entered against Lillian. To aid in levying execution against Lillian's bank accounts, opposing counsel enlisted the services of the New York City Marshal's Office. After judgment was entered, the Honorable Orin R Kitzes, Justice of the Supreme Court, Queens County, denied Lillian's 2 [* 4] order to show cause to vacate the settlement, and stated in his decision that the proper procedure was to bring a plenary action. Lillian alleges that she had to pay post-judgment statutory interest on the judgment, as well as statutory poundage to the Marshal, as a result of defendant's act of filing an order to show cause, rather than filing a plenary action. Lillian alleges claims of legal malpractice and breach of contract. In regard to Vincent's claims, the complaint alleges that defendant was paid to research Vincent's alleged contract and employment claims, in a separate matter, and that defendant failed to do so, despite retaining Vincent's payment of $5,000. Vincent alleges claims of legal malpractice, breach of contract, and a claim that sounds in unjust enrichment. Analysis Lillian's Claims Defendant moves to dismiss Lillian's claims for legal malpractice and breach of contract on the grounds that the presented documentary evidence belies them, and that they fail to state a claim. A CPLR 3211 (a) (1) motion to dismiss will be granted where the documentary evidence "conclusively establishes a defense to the asserted claims," disposing of the claims in the complaint as a matter of law ( W e i l , G o t s h a l & Manges, L L P v F a s h i o n Boutique of S h o r t Hills, I n c . , 10 AD3d 267, 271 [ l s tDept 20041 [internal 3 [* 5] quotes and citations omitted]). "[Tlo be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" ( F o n t a n e t t a v John Doe 1 , 73 AD3d 78, 86 [2d Dept 20101 [citations omitted]). In support of his motion, defendant submits three decisions by Justice Kitzes issued in the Estate Action. These decisions are unambiguous and their authenticity is not disputed, deeming them sufficient documentary evidence. "'In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's negligence' " (Leder v S p i e g e l , 9 NY3d 836, 837 [2007], cert d e n i e d 552 U S 1257 [2008], quoting & B a s e 434 [2007]). Corp. v D a v i s Polk & W a r d w e l l , 8 NY3d 428, In regard to Lillian's claim for legal malpractice, the documentary evidence presented by defendant establishes that filing an order to show cause instead of a plenary action was not the proximate cause of Lillian's damages. Regardless of whether defendant filed a plenary action or not, the settlement payment was due June 8, 2009. After payment was not made on that date, as stated by Justice Kitzes, the plaintiff in the Estate Action engaged the services of the Marshal after taking "various actions to compel [Lillian] to appear f o r depositions to determine her assets and for those assets to not be dissipated'' (Furman affirmation in support of motion to dismiss, exhibit E). Thus, it was not the filing of an order to show cause versus a plenary 4 [* 6] action, which caused the poundage owed to the Marshal, rather, it was Lillian's failure to timely pay the settlement amount, and the actions of Lillian afterwards, which caused the poundage and interest to accrue. It is noted that"[s]tipulations of settlement are favored by the courts and not lightly cast aside . . . This is all the more so in the case of 'open court' stipulations. . .within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation...". Hallock v. S t a t e of New York, 64 NY2d 224, 230 (1984)(citations omitted). Thus, Lillian's claim for legal malpractice is dismissed. Lillian's claim for breach of contract is also dismissed, as duplicative of the legal malpractice claim, as it is based on the same facts and seeks the same relief (Citidress 11 Corp. v Tokayer, 105 AD3d 798, 799 [2d Dept 20131; see also N a t u r a l Organics, I n c . v Anderson Kill [ l s tDept 20091 ) O l i c k , P.C., 67 AD3d 541, 542 & . Vincent's Claims Vincent's claim for legal malpractice is dismissed for failure to state a claim. As stated above, to state a cause of action for legal malpractice, a plaintiff must allege that the 5 [* 7] attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, causing actual damages, and "'that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's negligence'" (Leder v Spiegel, 9 NY3d at 837). "Speculative contentions about what might have happened had defendant attorney" litigated the claims differently are not sufficient to support a claim for legal malpractice ( C i t i d r e s s 11 Corp. v T o k a y e r , 105 AD3d at 798-799; see a l s o K e n e s s v F e l d m a n , K r a m e r & Monaco, P . C . , 105 AD3d 812, 813 [2d Dept 20131). Here, Vincent fails to plead specific factual allegations demonstrating that, but for the defendant's alleged act of failing to perform the legal work, he would have prevailed in an underlying action. Vincent also claims that defendant contracted to complete legal work for him and never did. The elements of a cause of action for breach of contract are: (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage ( s e e Noise I n T h e A t t i c P r o d s . , [ l s tDept 20041; Dept 20091). I n c . v L o n d o n R e c o r d s , 10 AD3d 3 0 3 F l o m e n b a u m v N e w York U n i v . , 71 AD3d 8 0 [lst Vincent has properly pled a cause of action for breach of contract insofar as he alleges that he entered into an agreement with defendant for legal representation, he paid defendant a retainer, and defendant failed to perform any legal work, damaging Vincent. 6 [* 8] Defendant argues that retainer agreement that he presents as documentary evidence shows that the retainer fees paid could have been applied towards either the Estate Action or researching Vincent s claims, and that nowhere does the agreement state a certain amount must be applied to the specific claims of each client. As the retainer agreement submitted is unsigned by Lillian and Vincent, and its authenticity is questioned by plaintiffs, the court cannot consider it as documentary evidence on a CPLR 3211 (a) (1) motion (Fontanetta v John Doe 1, 73 AD3d at 86). Thus, defendant s motion to dismiss this claim is denied. Vincent also brings a claim sounding in unjust enrichment, alleging that he paid defendant money to perform legal work, and defendant performed no work, even though he retained Vincent s money. This claim is duplicative of the breach of contract claim, as he does not allege a duty independent of the contract (Hoeffner v Orrick, Herrington [ l s tDept 20091 ) Sutcliffe LLP, 61 AD3d 614, 615 & . Accordingly, it is ORDERED that defendant Joseph M. Heppt, Esq. s motion to dismiss is granted to the extent that plaintiff Lillian De Pasquale s first and second causes of action are dismissed, and plaintiff Vincent De Pasquale s first and second causes of actions are dismissed, but is otherwise denied; and it is further ORDERED that defendant is directed to serve an answer to 7 [* 9] plaintiff Vincent De Pasquale s third cause of action in the complaint (breach of contract), within 30 days after service of a copy of this order with notice of entry; and it is further ORDERED that discovery shall be completed expeditiously, as follows: (1) documentary discovery demanded and exchanged, on or before September 2, 2013; and (2) depositions are to be completed on or before September 30, 2013 ; and it is further ORDERED that counsel are directed to appear for a discovery conference, on any remaining discovery issues, in Room 428, 60 Centre Street, on Thursday, October 3, 2013, at 10 AM; and it is further ORDERED that a note of issue shall be filed by October 2013; and it is further + ORDERED that within 20 days of entry of this order, both sides shall serve a copy upon the other party, with notice of entry. Dated: J u l y c, 2013 J:\Dismiss\de pasquale v . heppt.wpd It is noted that, by order of this court dated April 15, 2013, this court stayed depositions, pending a decision on the within motion, with the completion of depositions to be within 30 days of a decision; the court is providing the parties an extension of time to complete depositions, as a courtesy. 8

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