RJR Mech. Inc. v Ruvoldt

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RJR Mech. Inc. v Ruvoldt 2017 NY Slip Op 31232(U) June 8, 2017 Supreme Court, New York County Docket Number: 158764/2015 Judge: Jeffrey K. Oing 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. [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 1] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY·OF NEW YORK: IAS PART 48 ------~---------------------------~------x RJR MECHANICAL INC., Index No.: 158764/2015 Plaintiff, Mtn Seq. No. 001 HAROLD J. RUVOLDT and HODGSON RUSS LLP, DECISION AND ORDER De~endants. ------~--------~--~--~~-~-----------~----x JEFFREY K. OING, J. : Relief Sought Defendants, Harold K. Ruvoldt ("Ruvoldt") and Hodgson Russ LLP ("Hodgson Russ") move, pursuant to CPLR 3211, to dismiss the complaint with prejudice based on the following: documentary evid~nce, statute.of limitations, and failure to state a cause of action. Background & Procedural History The First Action On March 14, 2014, pl~intiff, RJR Mechanical Inc. ("RJR"), commenced .an action against Ruvoldt and Hodgson Russ, Ruvoldt' s law firm employer, asserting claims fo.t 1) breach of fiduciary duty, 2) fraud, 3) professional malpractice, 4) breach of contract, and 5) unjust enrich~ent :(RJR Mechanical Inc., v Harold J. Ruvoldt and Hodgson Russ LLP, Index No .. 152320/2014 [Sup Ct, New York County] [the "first action"]) . ·There, plaintiff alleged that Ruvoldt and Hodgson Russ represented it in a real property action involving property located at\59-15 55th Street, Maspeth, 2 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 2] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 2 of IndexNo.: 158764/2015 Mtn Seq. No. 001 17 NY (the "Maspeth Property") and that they failed to .disclose an alleged favorable settlem~nt offer having to do with that action. Plaintiff claimed that defendants' £ailure to advise of this alleged proposed settlement offer fell below professional standards of legal representation, and resulted in damages to plaintiff: Defendants moved to dismiss the legal malpractice claim as time-barred, and the other asserted claims as duplicative of the legal malpractice claim. In a decision and order, rendered from the bench on February 26, 2015, this Court granted defendants' motion~ finding that the three year statute of limitations for legal malpractice barred the claims, and that the other causes of action were duplicative of the legal malpractice claim (NYSCEF Doc. No. 29, pp. 38-39). This Court also held that plaintiff failed to set forth facts. sufficient to toll the limitations period (Id.). The Instant Action On or about August 25, 2016, plaintiff filed a new complaint, which is the subject of this motion, wherein it alleges, again, claims for 1) legal malpractice, and 2) unjust enrichment stemming from defendants' failure to inform it of the alleged proposed settlement offer as well as failure to prepare for trials and hearings (the "second action") . 3 of 18 As with the [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 3] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 3 of Index No,: 158764/2015 Mtn Seq, No. 001 17 allegations in the first action, in this action, plaintiff alleges that in 2002 itretained Ruvoldt to represent it, as the plaintiff, in a mortgage foreclosure action, .which was originally commenced by the lender, but assumed by plaintiff after i t had . \ . . acquired the lender's interest in the mortgage for the Maspeth Property (Norwest Bank Minnesota,. N.A. v E.M.V. Realty Corp., Index No. 20159/200.2 [Sup Ct, Queens County] a·ction"]) (Verified Complaint, <JI<J[ 10-12). [the "Norwest Bank During the time he was plaintiff's counsel, Ruvoldt worked at various firms which, by virtue of Ruvoldt's employment, also became plaintiff's counsel of record. Ruvoldt remained counsel of record for plaintiff until 2011 when he ultimately withdfew from the case. At that time, Ruvoldt was employed by Hodgson Russ . . As in the first action, the. complaint in the second action alleges that the Norwest Bank action resulted in a private auction iri which the Maspeth Property was sold, with the proceeds distributed· pursuant to a and $1,450,992.89 to (Verified Complaint., co~rt order: $424,790.42 to plaintiff EMV, the prior owner of the Maspeth Property <JI<JI 18-'20). The balance of the purchase price, $300,000, was held in escrow pending further order of the court (Id.). In the meantime, defendants filed a notice of appeal on plaintiff's b~half. 4 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 4] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 4 of Index No.: 158764/2015 Mtn Seq. No. 001 As before, plaintiff alleges that defendants failed to disclose to it a settlement offer, and that, had they made such disclosure, it would have accepted ·the settlement offer: 41. Prior to the Appellate Division's Order of April 10, 2012, counsel for EMV and Baron, Joseph D~neen, and counsel for the Plaintiff, Loanzon Sheikh ·LLC~ attempted to engage in settlement discussions. 42. During those attempted settlement discussions, Mr. Dineen questioned why [plaintiff] did not agree to.a prior settlement offer conveyed by Mr. Dineen on behalf of EMV and Baron through which EMV offered to transfer the [Maspeth Property] t6 [plaintiff] in full satisfaction of the mortgage lien and judgment that [plaintiff] then .owned and that were existing as liens upon the [Maspeth Property]. 4 3. [Plaintiff] had no knowledge ·of any settlement offer from Mr. ·Dineen that included a transfer of the [Maspeth Property] . *** 47. Mr. Dineen advised that Defendant Ruvoldt declined the settlement offer and therea£ter the Action continued. *** 53. [Plaintiff's] ultimate goal in the Action was to acquire the [Maspeth Property] . This goal was known to Defendant Ruvoldt. [Plaintiff] , had it known of the settlement offer that included a transfe~ of the [Maspeth Property] to it, would have accepted the same. (Verified Complaint, <JI<[ 41-53). Plaintiff's new allegations are as follows. Plaintiff alleges that not only did Ruvoldt represent it in the Norwest Bank action,.but he also represented it in another action 5 of 18 17 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 5] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 5 of Index No.: 158764/2015 Mtn Seq. No. 001 17 commenced in 2004 against it and related to the Maspeth Property: EMV Realty Corp. v RJR MechanicaL- Inc., 'Index No. 14778/2004 (Sup Ct, Queens County) (the "EMV Realty actionn). Plaintiff alleges it retained Ruvoldt to represent it and one of its principalsj Roy Leibo~itz ("Leibowitzn) in the EMV Realty a6tion (Verified Complaint, !! 14-15). The EMV Realty action has laid dormant since 2005, save for a single 2011 substitution of counsel (Elman Affirm., Ex. C). On Febru~ry 11, 2011, Kevin J. Espinosa ("Espinosan), an attorney at Hodgson Russ, sent an email to plaintiff's representative, Randy Karpman ("Karpmann), notifying plaintiff th~t an appeal for the Norwest Bank action needed to be perfected by March 23, 2011 .(Verified :Complaint, ! 22; Espinosa Affi:r:-m., Ex. A). In the email, Esp~nosa advised Karpman that if he did not hear from plaintiff by February 25, 2011 defendants would no longer be able to represent it on the appeal (Id.). In. this email, Espinosa did not mention anything about withdrawing from the EMV Realty action or from other aspects of the Norwest Bank action (Verified Compla~nt, ! 22; Espinosa Affirm., Ex. A). In a February 14, 2011 email, Espinosa again reiterated that Hodgson Russ would be unable to repre'sent plaintiff in the appeal of the Norwes~ Bank action (Verified Complaint, !! 24-25; Espinosa Affirm., Ex. B). In a February 28, 2011 email, Espinosa 6 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 6] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 6 of Index No.: 158764/2015 ~tn Seq. No. 001 advised plaintiff that defendants ' plan~ed 17 on filing a motion to ·withdraw as counsel of record for the Norwest Bank appeal, and that plaintiff look for new counsel for its appeal Complaint, '1I 26; Espinosa Affirm., Ex. C). (Verified On March 4, 2011, defendants filed their motion to withdraw as counsel of record and the motion was given a return date of March 16, 2011 (Espinosa Affirm., Ex. D). Notwithstanding the motion to withdraw, plaintiff further alleges that defendants continued representing it and that on March 8, 2011 Espinosa informed Karpman of his continuing discussion with counsel concerning an extension of the time to appeal and settle the Norwest Bank action (Verified Complaint, '1I 28) .· Plaintiff contends that this allegation is also supported by a March 7, .2011 let/ter sent from Espinosa to Karpman and Leibowitz stating that defendants would take steRS to "protect" plaintiff's rights (Pl. Memo of Law in Opp., p. 6; Espinosa Affirm., Ex. E). On March 9, 2011, Karpman informed Espinosa that it had retained new counsel, the iaw firm of Loanzon Sheikh LLC ("Loanzon Sheikh"), to handle the Norwest Bank action appeal (Id., '1I'1I 2 9-30; Espinosa Affirm., Ex. F) . Plaintiff then alleges: [a]t this time, on or about March 9, 2011, RJR had no intention of replacing the defendants as their counsel 7 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 7] INDEX NO. 158764/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 06/09/2017 Page 7 of .17 Index No.: 158764/2015 Mtn Seq. No. 001 in the balance of [the Norwest Bank action] or in [the EMV Realty action] and commcunicated the same to the defendants, that Loanzon Sheikh LLC would be handling the appeal in [the Norwest Bank action] only. (Verified Complaint, <j[ 31). Plaintiff next alleges that after it retained Loanzon Sheikh to represent it on its appeal in the Norwest Bank acti6n it requested files from defendants so that it could give these files to its new counsel (Verified Complaint, <j[ 32). According to plaintiff, defendants demanded payment and sought to withhold the files necessary to prosecute the appeal. Plaintiff ·alleges that defendants did not communicate to it that they were not willing to represent plaintiff concerning the balance of the Norwest Bank action and the EMV Realty action (Id., <j[<j[ 33-34). Plaintiff alleges that it never communicated to defendants that it was seeking to terminate its relationship with defendants, and that based on defendants' communications with counsel in the Norwest Bank action regarding settlement, plaintiff "continued in th~ good faith belief that defendants continued to represent [plaintiff]" (Id., <j[ 34). Plaintiff alleges that on March, 15, 2011, due to defendants' allegedly uncoop~rative conduct and demand for payment, it formally substituted Loanzon Sheikh as new counsel to take over the entirety of the Norwest Bank action and the EMV Realty action, and communicated this decision to defendants (Id., 8 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 8] NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 06/09/2017 Page 8 of, Index No.: 158764/2015 Mtn Seq. No. 001 <JI 35, 39). INDEX NO. 158764/2015 17 Plaintiff alleges that defendants remained counsel of record and continued to represent it in both the Norwest Bank action and the EMV Realty action through March 15, 2011 (Id., 38). <JI Defendants seek to have this second action dismissed as time-barred. Discussion On a motion to dismiss pursuant to CPLR 32ll(a) (7), the Court must liberally construe the c6mplaint, accepting the facts r- ·alleged as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). For a CPLR 32ll(a) (1) dismissal based on documentary evidence, the Court is not required to accept factual allegations, or accord favorable inferences, where factual assertions are clearly contradicted by documentary evidence (Bishop v Maurer, 33 AD3d 497, 497 [1st Dept 2006]). As for a motion pursuant to CPLR 32ll[a) (5), dismissal is warranted when the applicable statute of limitations has expired. Statute of Limi.tations Pursuant to CPLR 214(6), an action for legal malpractice must be commenced within three years from the date of accrual (Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). A legal malpractice claim accrues when relief can be obtained in court (McCoy v Feinman, 99 NY2d 295, 301 [2002]) and from the time the 9 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 9] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 9 of Index No.: 158764/2015 Mtn Seq. No. 001 17 actual injury stemming from the malpractice occurs, not when it is discovered (Id.). Here, defendants argue that any alleged failure to prepare for trial would have had to occur befor~ July 30, 2010, which is when the Supreme Court, Queens County, issued its distribution decision. Defendants argue that because more than three years elapsed between July _2010 and the filing of RJR's first action on March 14, 2014, the failure to prepare allegation is time-barred by the statute of limitations. Similarly, defendants argue that their alleged failure to inform plaintiff of EMV's settlement offer to transfer the Maspeth Property. is similarly time-barred, as the offer to sell must have bccurred before the property was auctioned.off to a buyer in July 2009. As a result, defendants contend that the failure to inform claim is also time-barred as more than four years elapsed between July 2009 and the filing of plaintiff's first action on March 14, 2014. In response, plaintiff argues that the continuous representation doctrine tolls the limit~tions period and, as such, its claims are not time-barred. Continuous Representation Doctrine The continuous representation doctrine, which is the offspring of the continuous treatment doctrine, recognizes that a 10 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 10] NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 06/09/2017 Page 10 of Index No.: 158764/2015 Mtn Seq. No. 001 layperson seeking legal confidence INDEX NO. 158764/2015 ~n ~ssistance 17 "[h]as a right to repose the professional's ability and good faith, and rea·listically cannot be expected to question and assess the techniques employed or the manner in which the services· are rendered" (Greene v Greene, 56 NY2d 86, 94 [1982]; Matter of Lawrence, 24 N~3d 320, 342-343 [2014]). "The continuous- representation doctrine tolls a statute of limitations where there is a mutual understa~ding of the need for further representation on the specific subject matter underlying the malpractice claim" (Zorn v Gilbert, 8 NY3d 933, 934 [internal quotations and citations omitted]). [2007] The two prerequisites needed to invoke a continuous representation toll are 1) a claim of misconduct regarding the mann~r in which the profession~l services were performed,· and 2) the ongoing provision bf professional services.with respect to the contested matter or transaction (Matter of Lawrence, 24 NY3d at 342). The ongoing representation must be specifically related to the matter in which the attorney committed the alleged malpractice (Id.; Johnson v Proskauer R6se LLP, 129 AD3d 59, 68 [1st Dept 2015]). The continuous representation doctrine is inapplic~ble where "plaintiff's allegaiions establish defendant[s'] failures within a continuing professional relationship, not a course of representation as to the particular problems 11 of 18 (conditions) that [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 11] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 11 of Index No·. : 158764/2015 Mtn Seq. No. 001 17 gave rise to plaintiff's malpractice claims" (Id. at 341-342 [internal quotations ~nd citations·omitted]). Here, plaintiff cont'ends that prior to its decision to substitute defendants as cdun~el it was unaware that defendahts no longer intended t6 represent·~t and that d~fendants' letters were hot indicative of suth. RatherJ plaintiff asserts that defendants'. letters established that they would continue to represent it in the settlement of the Norwest Bank action and the EMV Realty aetion. : .;. In the alternative, ~laintiff argues that the letters indicating withdrawal, as ~ell as the motion to withdraw are of no consequence. It argues that because the earliest time that the motion could have been ·granted was March 16, 2011, if it were granted at all, plaintiff did not expect the settlement offer to expire until then. Plaintiff argues that based on defendants' communications, most notably Espinosa's March 7, 2011 letter to Karpman and Leibowitz,. it was led_to believe that defendants would continue representing it :Ln the balance of the Norwest Bank action, namely' the settlement of the case. The pertinent parts of the letter which plaintiff relies upon read: In addition, in ipeakin~ with Mr. Dinee~, he intimated -,that the settlement offer of $100,000 above the tria;t. court award is still oh the table. [Hodgson Russ' s] motion to withdraw has been served on all parties, as we were required to do. Opposing counsel has informed me that one~ [Hodgson Russ] is n6 longer involved in 12 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 12] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 12 of Index No.: 158764/2015 Mtn Seq. No. 001 17 this case, the settlement offer ~s- revoked and is no longer available to [plaintiff] . If you wish to accept the settlement offer, please notify me immediately. (Espinosa Affirm., Ex. E). Defendants, in turn, contend that there was no continuous representation as their intention to withdraw from the entirety of the Norwest Bank action was made clear, well in advance of March 15, 2011, the date that plainti£f's decided to officially substitute counsel of record. In addition, defendants assert that they only .agreed to continue in settlement negotiations for the Norwest Bank action in order to protect the rights of a former client. Defendants argue that as of February 2011, the attorney-client relationship between Ruvoldt/Hudgson Russ and plaintiff had deteriorated irreparably, due to plaintiff's failure to communicate with or to pay Hodgson Russ. Defendants also argue that they had made their intentions· clear that they wanted to withdraw, and that the ~ery latest the parties' relationship could have existed was March 9, 2011, when plaintiff affirmatively terminated Hodgson Russ and retained new counsel to "handl[e] the appeal" (Espinosa Affirm., Ex. F.) Here, plaintiff's arguments are unpersuasive, as defendants made their intention to withdraw as counsel clear. In February 2011, Hodgson ~uss wrote to plaintiff twice and informed plaintiff that if it failed to respond by February 25, 2011, 13 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 13] INDEX NO. 158764/2015 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 06/09/2017 Page 13 of Index.No.: 158764/2015 Mtn Seq. No. 001 Hodgson Russ would be forced to withdraw (Espinosa·Affirm., A & B)'. 17 Exs~ On February 28, 2014, Hodgson Russ informed plaintiff in writing that: plaintiff's "[l]ack of cooperation ... has· made it unreasonably difficult to effecti~ely continue [ ... ] representation"; that Hodgson Russ "strongly reco:rrimend[s] that [plaintiff] immediately seek new counsel to timely perfect [the] appeal"; and that Hodgson Russ would move "to withdraw as counsel of record in this ~atter" on March 4, 2011 (Id. Ex. C). Accordingly, on March 4, 2011, defendants moved to withdraw as counsel of record (Id., Ex. D). As a result, by February 2011, and certainly by March 4, \ 2011, there was no longer any "mutual . understanding~ of the need for further representation between lawyer ~nd client, and plaintiff could not have reasonably believed that any representation continued. Contrary to plaintiff's assertions, the documentary evidence of these letters indicates that defendants had no intention of continuing on as plaintiff 1 s counsel. Even if this Court were to accept that ~laintiff intended for defendants to remain as counsel in the remainder of the Norwest Bank action and the EMV Realty Action, it is of no legal consequence. Defendants have submitted substantial documentary evidence, most importantly their motion to withdraw as counsel of 14 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 14] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 14 of Index No.: 158764/2015 Mtn Seq. No. 001 17 record, to indicate that they did not intend to represent plaintiff and that this was clearly conveyed to plaintiff. To the extent plaintiff relies on the EMV Realty action to toll the statute of limitations, plaintiff's arguments are unavailing. Since 2011, when Loanzan Sheikh was substituted as · counsel, ther~ has been no activity in the EMV Realty action and, prior to that, since 2005, there had been no activity before the substitution. Contrary to plaintiff's assertion, it would not have been under the reasonable belief that defendants were / actively representing it in the EMV Realty action. Further, and more import~ntly, in order for a legal malpractice claim to be subject to the continuous representation toll, the ongoing representation must be directly linked to the alleged malpractice. Given that plaintiff has failed to plead with sufficiency that the EMV Realty action is related to the underlying allegations of legal malpractice, the continuous representation doctrine cannot be transferred to the second action based on the EMV Realty action. Based on the foregoing, plaintiff's legal malpractice claim is time-:barred. Unjust Enrichment ·Here, defendants argue that plaintiff's second cause of action for unjust enrichment is based on the same factual 15 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 15] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 15 of Index No.: 158764/2015 Mtn Seq. No. 001 1:] allegations and seeks identical damages as plaintiff's allegations for legal malpractice. "CPLR 214(6) was enacted to prevent plaintiffs fr6m circumventing the three-year statute of limitations for professional malpractice cl~ims by characterizing· a defendant's failure to meet professional standards as.something else ... The key to determining whether a claim is duplicative of one for malpractice is discerning the essence of each claim" (Johnson, 129 AD3d at 69). In the context of professional relationships, when the claim essentially states that there was a failure to utilize reasonable care or where acts of omission or negligence are alleged, the statute of limitations shall be three years (Matter of R.M. Kliment & Frances Halsband, Architects (McKinsey & CO.i Inc., 3 NY3d 538, 541-542 [2004]). In opposition, plaintiff contends that its pleaded unjust enrichment cause of action is an independent claim as it alleges that: 1) defendants were enriched by plaintiff's payment of legal fees to them; 2) such payments of fees were at plaintiff's expense due to the subpar value of legal services rendered, and 3) defendant's were able to retain. plaintiff's benefit in the form of legal fees which is against equity and good conscience. Plaintiff's sp~cific unjust enrichme~t follows: 16 of 18 claims are as [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 16] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 16 of Index No.: 158764/2015 Mtn Seq. No. 001 17 76. Plaintiff repeats the allegations contained within.Paragraphs 1-73 of the Complaint as fully set forth herein. 77. As a result of. the Defendants actions and omissions, the pefendants were. enriched through the continued payment of fees. 78. The Defendants enrichment occurred through circumstances that were unjust, namely, Defendants failure to advise the Plaintiff of a 'settlement offer and failure to adequat~ly prepare for ~rial. 79. As a direct and proximate result of the Defendants unjust conduct, the Plaintiff has suffered damages. 80. As a result of the Defendants' unjust conduct, the Plaintiff has suffered damages equal to the fair market value of the Premises, a sum no less than $2.5 million dollars, together with all legal fees paid to the Defendants and/or incurred as a result of services provided by the Defendants, all together with interest, and the reasonable attorneys' fees, costs and disbursements of this action. (Verified Complaint, <JI<JI, 76-80). Ultimately, all of these allegations are duplicative of the legal malpractice cause of action in that plaintiff seeks damages stemming ,from defendants' allegedly below standard professional representation. Given that the unjust enrichment claim is based on the same factual allegations and seeks the same damages, it must be dismissed as duplicative. payment qf le~al In any event, plaintiff's fees to defendants is ndt sufficient to make out a claim for unjust enrichment. Accordingly, it is 17 of 18 [*FILED: NEW YORK COUNTY CLERK 06/09/2017 04:09 PM 17] NYSCEF DOC. NO. 30 INDEX NO. 158764/2015 RECEIVED NYSCEF: 06/09/2017 Page 17 of Index No.: 158764/2015 Mtn Seq. No. 001 17 ORDERED that defendants' motion to dismiss plaintiff'~ complaint is hereby granted, and it is hereby dismissed with prejudice; and it is further ORDERED that th~ complaint is dis~issed in its entirety, with costs and disbursements to defendants as taxed by the Clerk of the Court, and the Clerk is respectfully directed to enter judgment ac~ordingly in favor of said defendants. This memorandum opinion constitutes the decision and order of the Court. Dated: HON. JEFFREY K. OING, J.S.C. JEFFREY K. OING J.S.C. 18 of 18

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