Mintz & Gold, LLP v Daibes

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Mintz & Gold, LLP v Daibes 2013 NY Slip Op 33225(U) December 16, 2013 Supreme Court, New York County Docket Number: 104699/11 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 12/26/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Paul Wooten PARTJ_ Justice Index Number : 104699/2011 MINTZ & GOLD, LLP. INDEX N O . - - - - - VS. MOTION DATE _ _ __ DAISES, FRED A. SEQUENCE NUMBER : 003 MOTION SEQ. NO. - - - SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is c\ec\c\e_d I No(s). _ _ _ _ __ I No(s). - - - - 1No(s). - - - - - \(\ clC. CO ~®CSl ~·r-\h ·-~ht c\ec,\~\\Jn \n \'/~ ~\J.enCQ. 002. _/ w 0 j:: :::> ..., "' 0 FILED I- C w IX IX w LL. DEC 19 2013 w IX >- .:..:. ~ z :::> 0 u.. en ...J ...J I- < ~ 1 I 1 'i ii NEW YORK COUNTY CLERK'S OFFICE (!') 0 UJ UJ IX w z IX - en ~ - 0 w ...J en _, <o LL. 0 z ~ 0 I- 0 0 ~ IX :'E LL Paul Wooten ~~ON-FINAL DISPOSITION 1. CHECK ONE: ..................................................................... D 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED }(DENIED 0 GRANTED IN PART 0 OTHER 0 SETTLE ORDER 0 SUBMIT ORDER ODO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE 3. CHECK IF APPROPRIATE: ................................................ CASE DISPOSED [* 2] SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: PART_7_ HON. PAUL WOOTEN Justice I FILED MINTZ & GOLD LLP, Plaintiff, - against- l 104699/11 'tDEX NO. DEC 19 2013 f1'0TION SEQ. NO. 002 NEW YORK COUNTY CLERK'S OfFIC! FRED A. DAIBES, Defendant. The following papers, numbered 1 to 3, were read on this motion by plaintiff for summary judgment pursuant to CPLR 3212. PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1 Answering Affidavits - Exhibits (Memo) _ _ _ _ _ _ _ _ __ 2 Replying Affidavits (Reply Memo)_ _ _ _ _ _ _ _ _ _ _ _ __ 3 Cross-Motion: Dves ¢ No Motion sequences 002 and 003 are hereby consolidated for purposes of disposition. Plaintiff Mintz & Gold LLP (plaintiff), a law firm, brings this action to recover unpaid attorney's fees allegedly owed by its former client, defendant Fred A Daibes (defendant), pursuant to four outstanding invoices. Plaintiff seeks judgment against defendant under the theories of, inter alia, breach of contract, account stated, unjust enrichment and quantum meruit. Now before the court is a motion by the plaintiff for summary judgment in its favor, /- pursuant to CPLR 3212 (Motion Sequnce 002). Also before the Court is a motion by the defendant for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint in its entirety (Motion Sequence 003). Defendant moves on the basis that the defendant was not a party to the contract for the legal services which plaintiff seeks to collect on, the defendant did not pay the retainer monies and w~s not billed for the legal services, the defendant is a principal and member of the clients under the retainer agreement and on the basis that plaintiff fails to Page 1 of 4 [* 3] name necessary parties which is fatal to its. claim as plaintiff alleges no facts to hold a member liable for bills of the companies. Plaintiff cross-moves for an order imposing sanctions against the defendant and defendant's counsel for engaging in frivolous conduct, pursuant to 22 NYCRR §130-1.1. Discovery in this matter is not complete and the Note of Issue has not been filed. STANDARD Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986); Andre v Pomeroy, 35 NY2d 361, 364 [1974)). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus. Inc., 10 NY3d 733, 735 [2008]). Once a prima facie shmNing has been made, however, "the burden shifts to the r.onmcving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212[b]). When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc,, 65 NY2d 625, 626 [1985)). If there is any doubt as to the existence of a triable issue, summary Page 2 of 4 [* 4] judgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). DISCUSSION The Court finds that the retainer letter creates triable issues of fact as to whether plaintiff can collect monies from defendant personally. Specifically, the retainer letter is written to Mr. Daibes, accepting his request to represent River Lookout Associates, LLC and 1275 River Road Associates, LLC in litigation (Plaintiff Notice of Motion, exhibit 1). Additionally, the retainer letter is signed by defendant in his individual capacity, as under his signature it does not state that he is signing in his capacity as a member of the above mentioned LLCs. Regarding plaintiff's cross-motion for sanctions pursuant 22 NYCRR § 130-1.1, Part 130 of the Rules of the Chief Administrator permits courts to sanction attorneys for engaging in frivolous conduct, which includes conduct: (1) "completely without merit in law"; (2) "undertaken primarily to ... harass or maliciously injure another"; or (3) "assert[ing] material factual statements that are false" (see 22 NYCRR § 130-1.1; Tavella v Tavella, 25 AD3d 523, 524 [1st Dept 2006]). Here, plaintiff moves pursuant to 22 NYCRR § 130-1.1 for sanctions against defendant and his counsel for engaging in frivolous conduct. Thj;t Court finds that the defendant's conduct in bringing the herein motion for summary judgment was not frivolous within the meaning of 22 NYCRR § 130-1.1, and therefore plaintiff's cross-motion seeking the imposition of sanctions against the defendant and his counsel is denied. CONCLUSION For these reasons and upon the foregoing papers, it is, ORDERED that plaintiff's motion for summary judgment in its favor, pursuant to CPLR 3212 (Motion Sequnce 002) is denied; and it is further, ORDERED that the defendant's motion for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint in its entirety (Motion Sequence 003) is denied; and it is further. ORDERED that plaintiff's cross-motion for an order imposing sanctions against the Page 3 of 4 [* 5] defendant and defendant's counsel for engaging in frivolous conduct, pursuant to 22 NYCRR §130~1.1 is denied; and it is further, ORDERED the parties are directed to appear for a Compliance Conference on January 22, 2014 at2:30 pm at 60 Centre Street, Room 341, Part 7. This constitutes the Decision and Order of the Court. Dated: 12-116 J L5 WOOTEN I J.S.C. 0 Check one: FINAL DISPOSITION ¢ NON-FINAL DISPOSITION DO NOT POST REFERENCE Check if appropriate: : FILED · I DEC 19 2013 NEWYOffK I COUNry CLERK'S OFFQ l Page 4 of 4

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