Louis F. Burke PC v Aezah

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Louis F. Burke PC v Aezah 2017 NY Slip Op 32670(U) December 14, 2017 Supreme Court, New York County Docket Number: 654778/2016 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/22/2017 02:07 PM 1] NYSCEF DOC. NO. 58 INDEX NO. 654778/2016 RECEIVED NYSCEF: 12/22/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 58 PART HON. DAVID BENJAMIN COHEN Justice ------~----------------------------------------------------------------------------X .I LOUIS F. BURKE PC, INDEX NO. 654778/2016 Plaintiff, MOTION DATE MOTION SEQ. NO. -v- 11/30/2016 001 AHMED AEZAH. RICHMAN PLAZA GARAGE CORP. DECISION AND ORDER Defendant. ------------------------------------------------------------------------------~----X I I The following e-filed documents, listed by NYSCEF docuriient number 18, 19, 20, 21, 22, 23, 24, 25, 26,27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40,41,42,43, 44, 45, 46, 47,48,49, 50, 51, 52, 53, 54, 55 ; DISMISSAL were :read on this application to/for Upon the foregoing documents, it is Defendants Ahmed Aezah and Richman Plaza Garage Corp. (collectively "defendants") engaged Louis F. Burke P.C. ("LFB" or "plaintiff') as legal counsel on August 27, 2014. On October 23, 2014, defendants orally informed LFB to cease all work on their behalf. The Complaint alleges that defendants had made a payment on October 17, 2014, there remained an outstanding balance of $42,937.50. As plaintiff was still the attorney of record, it sought information from defendants relating to new counsel. As such information was not provided, LFB1remained as the attorney ofrccord, and incurred an additional $17,520 in legal fees until relie~ed by the Court in May of 2015, leaving a total outstanding balance of $60,457.50. ' Plaintiff sent and defendants received invoices on July: 28, 2015, September 10, 2015, and April Page 1 of 5 654778/2016 LOUIS F. BURKE PC vs. AEZAH, AHMED Motion No. 001 1 of 5 [*FILED: NEW YORK COUNTY CLERK 12/22/2017 02:07 PM 2] NYSCEF DOC. NO. 58 INDEX NO. 654778/2016 RECEIVED NYSCEF: 12/22/2017 21, 2016 of the outstanding balance. On October 20, 2016, plaintiff filed the instant matter seeking to recover lost fees and alleged breach of cont~act, quantum meruit and accounts stated. Defendant answered and asserted six counterclaims for (1) breach of contract, (2) ordinary ; .! negligence, (3) breach of fiduciary duty, (4) professional malpractice, 1 (5) violation of Judiciary : Law, 487, and (6) "reasonable legal fees." In the instant motion, plaintiff moved for partial summary judgment on the fourth cause of action of account stated and for dismissal pursuant to ; CPLR 3211 (a)(l) and (7) of all counterclaims. Follo~ing several attempts at resolving the motion and the action in its entirety, plaintiff has withdrawn the summary judgment portion of • I this ~otion and now only seeks the dismissal of the cciunterclaims portion. : When deciding a motion to dismiss pursuant to CPLR § 3211, the court should give the pleading a "liberal construction, accept the facts alleged in the complaint to be true and afford the p laintiff the benefit of every possible favorable inference" (Landon v. Kroll Laboratory 1 Specialists, Inc., 22 NY3d 1, 5-6 [2013]; Faison v. Lewis, 25 NY3d 220 [2015]). However, if a complaint fails within its four corners to allege the necessary elements of a cause of action, the claim must be dismissed (Andre Strishak & Associates, P. C. v. Hewleu Packard & Co., 300 AD2d 608 [2d Dept 2002]). .. ; Although defendants have tried to re-write the, counterclaims, the first counterclaim is for 'I breach of contract arising out plaintiff's actions that allegedly led to defendants not having ·; i prop~r legal representation. The breach of contract cl~im is dismissed as duplicative of the malpractice counterclaim (Mamoon v Dot Net inc., 135 AD3d 656, 658 [1st Dept 2016]["Unless ·I a plaintiff alleges that an attorney defendant "breached a promise to achieve a specific result, a i claim for breach of contract is "insufficient" and duplicative of the malpractice claim" citing '. 1 The header for this cause of action states breach of contract. However, the first counterclaim was for breach of contract and the allegation contained in this cause of action state malpractice. ~ 654778/2016 LOUIS F. BURKE PC vs. AEZAH, AHMED Motion No. 001 Page 2 of 5 2 of 5 [*FILED: NEW YORK COUNTY CLERK 12/22/2017 02:07 PM 3] NYSCEF DOC. NO. 58 INDEX NO. 654778/2016 RECEIVED NYSCEF: 12/22/2017 Sage Realty Corp v. Proskauer Rose, 251 AD2d 35 [ l ~t Dept.1998]; see also IMO Indus. v ' Ande;-son Kill & Olick, P.C, 267 AD2d 10, 12 [1st Dept 1999]; Pellegrino v File, 291AD2d60, 64 [1st Dept 2002] [breach of contract claim found redundant of malpractice claim]). Thus, the first counterclaim is dismissed. I Similarly, the second counterclaim for negligence is dismissed as duplicative of the legal malpractice claim (see Cusack v Greenberg Traurig. LLP, 109 AD3d 747, 748 [1st Dept 2013]. This point is not contested by defendants. In additionj defendants have not stated any facts that give rise even to an allegation of negligence. The second counterclaim is dismissed. ' . Although defendants argue that the third cause of action is really a fraudulent inducement clai~, the third cause of action alleges a breach of fiduciary duty. As the breach of fiduciary claiip arises out of the same facts as the legal malpractice claim and seeks the identical relief sought in the legal malpractice cause of action, is redundant and should be dismissed (Weil. ; 1 Gotshal & Manges. LLP v Fashion Boutique ofShort Hills. Inc., 10 AD3d 267, 271 [1st Dept 200~]). In fact, other than a conclusory statement that defendant breached its fiduciary duty, the facts portion of the Complaint contains no allegations of any acts contrary to defendants" duties as the plaintiffs' attorneys. Thus, the third counterclaim is dismissed. Further, even if the Court \Vould read the counterclaim to be for fraudulent inducement. This counterclaim would be denied. Although defendant discusses the law regarding an integration clause, the engagement letters contain an ddditional paragraph that provides: ' The Client acknowledges that the Firm has made no guarantees regarding the successful outcome and that any expressions by the Firm regarding the potential outcome are only opinions based on limited familiarity with the facts. The Firm cannot guarantee the outcome as the likelihood of the ultimate success in an action depends on many different factors, some of which are beyond the Firm's control. 654778/2016 LOUIS F. BURKE PC vs. AEZAH, AHMED Motion No. 001 Page 3 of 5 3 of 5 [*FILED: NEW YORK COUNTY CLERK 12/22/2017 02:07 PM 4] NYSCEF DOC. NO. 58 INDEX NO. 654778/2016 RECEIVED NYSCEF: 12/22/2017 ; Hence, defendants were clearly informed that Jxpressions regarding outcomes were only opinions and that no quick outcome was guaranteed. J'hus, any supposed reliance upon an expression of an opinion by plaintiff could not be basJd upon fraud and the third cause of action . q would be dismissed under that reading as well. Defendants' fourth counterclaim is for malpractice. "In an action to recover damages :; Ii for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary I li '~ . reasonable skill and knowledge commonly possessed by a member of the legal profession and ;; . 'i that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plai11ti ff must show that he or she would have . I: : lj prev~iled in the underlying action or would not have incurred any damages, but for the lawyer's negligence (Rudolf\· Shayne. Dachs. Sranisci. Corker;\& Sauer, 8 NY3d 438, 442 [2007]). The 1' First Department succinctly states that malpractice requires proof of three elements: ( 1) that the attorney was negligent; (2) that such negligence was dproximate cause of plaintiff's losses; and (3) p;·oof of actual damages (Excelsior Capitol LLC v!K&L Gates LLP, 138 AD3d 492, 492 [1st '~ Dept 2016], Iv to appeal denied suh 110111. Excelsior Capital LLC v K & L Gares LLP, 28 NY3d . :! 906 [2016]). The facts alleged by defendant do not g(ve rise to any claim that the attorney was 'i ! negligent or that defendants would have prevailed in the underlying action or would not have d 1 incurred any damages, but for the lawyer's ncgligence Therefore, the fourth cause of action is • dismissed. The fifth cause of action is also dismissed. Ju~iciary Law § 487 provides recourse only 1! where there is a chronic and extreme pattern of legal delinquency (.Jaroslawicz v Cohen, 12 AD3d 16012004]; see also Dinluder v Med. Liab. ,.uzjt. Ins. Co., 92 AD3d 480 [1st Dept 2012]. I! Givi;1g claimant every favorable inforencc, the count~rclaims sets forth but one alleged Page 4 of 5 654778/2016 LOUIS F. BURKE PC vs. AEZAH, AHMED Motion No. 001 4 of 5 [*FILED: NEW YORK COUNTY CLERK 12/22/2017 02:07 PM 5] NYSCEF DOC. NO. 58 INDEX NO. 654778/2016 RECEIVED NYSCEF: 12/22/2017 misrepresentation by defendant and accordingly docs i~ot allege a cognizable claim under Judiciary Law § 487 (Solow 1\{'?f. Corp. v Seltzer, 18 AD3d 399 [1st Dept 2005]. Based upon the forgoing, defendants' counterclaim for attorney's fees;is also dismissed. ~ ! For the above reasons it is therefore ORDERED, that plaintiff's motion to dismiss all of defendants' counterclaims is granted. This constitutes the decision and order of the Court. ~KgJ\ 12/14/2017 DATE HON. DAVID B. COHEN CHECK ONE: CASE DISPOSED GRANTED APPLICATION: DENIED·: SETTLE ORDER " CHECK IF APPROPRIATE: D NON-FINAL ~~:~:l:ION DO NOT POST D GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 654778/2016 LOUIS F. BURKE PC vs. AEZAH, AHMED Motion No. 001 J.S.C. D D OTHER REFERENCE Page 5 of 5 5 of 5

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