Kutner v Vazquez

[*1] Kutner v Vazquez 2007 NY Slip Op 52127(U) [17 Misc 3d 1123(A)] Decided on November 2, 2007 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2007
Nassau Dist Ct

Harry H. Kutner, Jr., Plaintiff,

against

Tomas J. Vazquez, Josefina Modesto and Alma Cruz, Defendants.



45140/06



Attorney - plaintiff: Harry H. Kutner, Jr., Esq.

Attorneys for defendants: Bermingham & Fernandez, LLP

Andrew M. Engel, J.

The Plaintiff commenced this action on or about December 19, 2006 seeking to recover the balance allegedly due for legal services allegedly provided to the Defendants. The Complaint sets forth causes of action sounding in breach of contract, quantum meruit, unjust enrichment and account stated. Issue has been joined; and, the Defendants deny the material allegations of the Complaint and assert various affirmative defenses.

The Defendants now move for an order granting them summary judgment and directing that the records of this action be permanently sealed. The Plaintiff opposes the motion and cross-moves for an order granting him summary judgment. The Defendants oppose the cross-motion.

SUMMARY JUDGMENT

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movants must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure [*2]to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

It is undisputed that the Plaintiff represented the Defendant, Tomas J. Vazquez, ("Vazquez") in a criminal matter from on or about August 22, 2006 until his discharge in late October 2006. What is in dispute are who contracted for the Plaintiff's services, what were the terms of that representation, what work was performed by the Plaintiff, how much has the Plaintiff been paid and what, if anything, is he owed.

The Defendants allege that, although the Plaintiff indicated he wanted an initial retainer of $25,000.00 and an hourly fee of $500.00, the Plaintiff ultimately agreed to accept a total of $5,000.00, "to appear for TOMAS, confer with the District Attorney and obtain the evidence which the District Attorney was using to support the charges against TOMAS." (Cruz Affidavit 7/2/07, ¶ 5) The Defendants allege, and document, that this sum was paid in full.

The Defendants further argue that Josefine Modesto ("Modesto") and Alma Cruz ("Cruz") were only acting as agents for Vazquez, who was incarcerated, and were, at best, guarantors of the fees to be paid by Vazquez. In support thereof, the Defendants point to a letter from the Plaintiff to Vazquez, dated August 23, 2006, forwarding an unsigned retainer statement to Vazquez, naming Modesto and Cruz, as guarantors. The Defendants argue that this purported guarantee cannot be enforced because it is not in writing, signed by the purported guarantors, in violation of the statute of frauds.

The Plaintiff alleges that he was hired by Modesto and Cruz to represent the Vazquez and that "[t]hey are principals not sureties ...." (Kutner Affidavit 9/14/07, ¶ 8) The Plaintiff further alleges that the listing of Modesto and Cruz as guarantors on the retainer was a mistake. He makes no reference to the letter of August 23, 2006, which asks Vazquez to have his "wife and sister sign [the retainer] as guarantors ...." The Plaintiff further alleges that his billing statement of October 27, 2006, which is annexed to his Complaint, accurately lists the time for which he seeks to be compensated. According to the Plaintiff, he billed $11,082.59 for the services and disbursements provided, of which the Defendants paid $4,000.00, leaving a balance due of $7,082.59.

Based upon the foregoing, Modesto and Cruz have sufficiently put forth facts establishing their prima facie entitlement to the dismissal of the Complaint. Each of these Defendants allege, and support with uncontroverted documentation provided by the Plaintiff, that they acted only as agents of the incarcerated Vazquez and were understood to be no more than guarantors of the fee owed by Vazquez. The Plaintiff's recent revelation that he mistakenly listed Modesto and Cruz as guarantors on the retainer is not only a bald and conclusory statement, which is unsupported by any evidence whatsoever, but is belied by the Plaintiff's additional reference to Modesto and Cruz as guarantors in his letter of August 23, 2006, which was addressed solely to the Vazquez.

While, as indicated above, summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, Rotuba Extruders, Inc. v. Ceppos, supra ., that issue of fact must be genuine. S. J. Capelin Associates, Inc. v. Globe Manufacturing Corporation,34 NY2d 338, 357 NYS2d 478 (1974); Famularo v. Havasi, 221 AD2d 587, 635 NYS2d 495 (2nd Dept.1995) A "shadowy semblance of an issue or bald conclusory assertions" Spodek v. Park Property Development Associates, 263 AD2d 478, 693 NYS2d 199 (2nd Dept.1999); see also:

S. J. Capelin Associates, Inc. v. Globe Manufacturing Corporation, supra .; Orange [*3]County-Poughkeepsie Ltd. Partnership v. Bonte, 37 AD3d 684, 830 NYS2d 571 (2nd Dept. 2007), such as the Plaintiff's statement herein, will not suffice. Parisi Enterprises Inc. Profit Sharing Trust v. Settimo, 198 AD2d 272, 603 NYS2d 571 (2nd Dept.1993); Assing v. United Rubber Supply Co., Inc., 126 AD2d 590, 511 NYS2d 31 (2nd Dept.1987); Mlcoch v. Smith, 173 AD2d 443, 570 NYS2d 70 (2nd Dept.1991)

There being no genuine issue that Modesto and Cruz were acting as agents for a disclosed principal, they will not be bound to the alleged contract for legal services in the absence of "clear and explicit evidence of the [their] intention to substitute or superadd [their] personal liability for, or to, that of [their] principal." Mencher v. Weiss, 306 N.Y. 1,4, 114 NE2d 177, 179 (1953); see also: Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 254 NYS2d 521 (1964); Harry Kolomick Contractors, Inc. v. Shelter Rock Estates, Inc., 172 AD2d 492, 567 NYS2d 845 (2nd Dept. 1991); Walz v. Todd & Honeywell, Inc., 195 AD2d 455, 599 NYS2d 638 (2nd Dept. 1993) The Plaintiff has offered nothing to overcome the presumption that, as agents, Modesto and Cruz intended only to bind their principal, Vazquez. RKO-Stanley Warner Theatres, Inc. v. Plaza Pictures, 54 AD2d 623, 387 NYS2d 257 (1st Dept. 1976); Ronny-Gerard, Inc. v. Zimmerman, 150 AD2d 438, 541 NYS2d 46 (2nd Dept.1989)

Additionally, as purported guarantors, Modesto and Cruz can only be held liable if such promise to pay is in writing, GOL § 5-701(a)(2); Paul, Weiss, Rifkind, Wharton & Garrison v. Westergaard, 75 NY2d 755, 551 NYS2d 896 (1989); Bart and Schwartz v. Teller, 228 AD2d 630, 646 NYS2d 24 (2nd Dept. 1996); Hamburger, Maxson & Yaffe, LLP v. Solow,277 AD2d 425, 716 NYS2d 892 (2nd Dept. 2000), or is "(1) supported by new consideration moving to [Modesto and Cruz] and beneficial to [them], and (2) the [Defendants, Modesto and Cruz] ha[ve] become in the intention of the parties a principal debtor primarily liable (Martin Roofing, Inc. v. Goldstein, 60 NY2d 262, 265-267, 469 NYS2d 595, 457 NE2d 700 [1983], cert. denied 466 U.S. 905, 104 S. Ct. 1681, 80 L. Ed. 2d 156 [1984] )." Carey & Associates v. Ernst, 27 AD3d 261, 810 NYS2d 475 (1 Dept. 2006); see also: Concordia General Contracting v. Peltz, 11 AD3d 502, 782 NYS2d 848 (2nd Dept. 2004) This new promise must be tangible and directly beneficial to the Defendants; and, as the proponent of this alleged oral agreement, the Plaintiff has the burden of producing evidence establishing same. Carey & Associates v. Ernst;, supra .; Martin Roofing, Inc. v. Goldstein, supra . This the Plaintiff has not done.

Accordingly, that branch of the Defendants' motion seeking an order granting the Modesto and Cruz summary judgment and dismissing the Complaint as to them, is granted.

The court does find, however, that the unsigned proposed retainer agreement satisfies 22 N.Y.C.R.R. § 1215.1, which required Plaintiff to provide Vazquez, with a written letter of engagement, preserving the Plaintiff's right to maintain an action for breach of contract, as well as one seeking to recover the reasonable value of the services provided, in quantum meruit, against Vazquez. See: Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54, 833 NYS2d 566 (2nd Dept. 2007) It is apparent from the conflicting representations of the parties in the papers submitted upon this motion, however, that the numerous issues concerning the terms of representation agreed upon by the parties, the work to be performed, the work actually performed, the reasonable value thereof, the amount paid and the amount due, if any, cannot be resolved upon this motion and must await determination at trial. [*4]

Accordingly, that branch of the Defendants' motion which seeks an order granting the Vazquez summary judgment and dismissing the Complaint against him, is denied.

Similarly, the Plaintiff's cross-motion for summary judgment is denied.

CONFIDENCES AND SECRETS

Pointing to three dates listed on the Plaintiff's itemized billing statement, which was annexed to the Plaintiff's Complaint, the Defendants allege that the Plaintiff improperly disclosed confidences and secrets they imparted to him, requiring the dismissal of the Complaint and the permanent sealing of the record in this matter. The three entries singled out by the Defendants read, in pertinent part, as follows:

8/23/06two (2) telephone calls from Gloria Modesto (niece) regarding case; 1) relates that retainer money is being brought from Mexico, ....

8/29/07conference at office with Mrs. Vazquez, Mrs. Modesto and Giancarlo regarding case; ... 4); explain that Nadel's claim that with one phone call he could have Mrs. Perez deported and that would be the end of the case, is highly unlikely now in light of murder conspiracy (DA would request temporary stay until case is over);[FN1]

9/07/06to jail and confer with Mr. Vazquez; ... Mr. Vazquez again relates how he cannot wait until he and Perez are back in Mexico together (denies threat, but alternatively indicates he will do something to Perez, obliquely referring to people who got in an accident with and hurt his father); ...

The Defendants allege that the first conversation is a confidence or secret, the disclosure of which could be prejudicial to Vazquez because the reference to Mexico could be used by the prosecution in the criminal matter to tie Vazquez to his co-defendant, Perez, who is also from Mexico. The Defendants further allege that the August 29, 2006 statement could be used to the prosecution's advantage in the criminal matter; and, claim that the September 7, 2006 conversation reveals that Vazquez may be capable of violence.

The Plaintiff argues that if Modesto and Cruz were only guarantors for Vazquez, as opposed to clients themselves, then the statements attributed to them on August 23, 2006 and the statement made to them on August 29, 2006 were neither client confidences nor secrets. The Plaintiff further alleges that the conversation of August 23, 2006 was with Gloria Modesto, Vazquez' niece, who was neither a client nor a guarantor, and that the statement is not confidential. Similarly, the Plaintiff alleges that the August 29, 2006 conversation with Modesto and Cruz was in the presence of third parties, including Vazquez' niece and "Giancarlo," a family friend, waiving any privilege which may have existed. The Plaintiff also claims that the note regarding the conversation he had with Vazquez on September 7, 2006 did not reveal any confidences, as it clearly indicates Vazquez did not make any threats against his co-defendant, Perez, and could be used to Vazquez' advantage. [*5]

The attorney-client privilege, a product of the common law, now codified in CPLR § 4503(a), is designed to ensure that one seeking legal advice will be able to confide fully and freely in his or her attorney "secure in the knowledge that his confidence will not later be revealed to the public to his detriment or his embarrassment." People v. Mitchell, 58 NY2d 368, 461 NYS2d 267 (1983); Madden v. Creative Services, Inc., 84 NY2d 738, 622 NYS2d 478 (1995) The privilege, however, only extends to confidential communications with an attorney for the purpose of obtaining legal advice or services. Hoopes v. Carota, 74 NY2d 716, 544 NYS2d 808 (1989); In re Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 4 NY3d 665, 797 NYS2d 790 (2005); All Waste Systems, Inc. v. Gulf Insurance Company, 295 AD2d 379, 743 NYS2d 535 (2nd Dept. 2002)

An attorney's ethical obligation to maintain a client's "confidences" and "secrets", however, is broader than the attorney-client privilege. Lightman v. Flaum, 97 NY2d 128, 736 NYS2d 300 (2001); Wise v. Consolidated Edison Co. of New York, Inc., 282 AD2d 335, 723 NYS2d 462 (1st Dept. 2001) lv. denied,96 NY2d 717, 730 NYS2d 790 (2001); Nessenoff v. Dinerstein & Lesser, P.C., 12 AD3d 427, 786 NYS2d 185 (2nd Dept. 2004) A confidence "refers to information protected by the attorney-client privilege under applicable law, and secret refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." 22 N.Y.C.R.R. § 1200.19(a) [DR 4-101(1)]

The protections afforded, however, are not limitless and must be narrowly construed. Priest v. Hennessy, 51 NY2d 62, 431 NYS2d 511 (1980); Spectrum Systems International Corporation v. Chemical Bank, 78 NY2d 371, 575 NYS2d 809 (1991); Brooklyn Union Gas Co. v. American Home Assurance Company, 23 AD3d 190, 803 NYS2d 532 (1st Dept. 2005) In determining the scope of the privilege, there is no hard and fast rule of general application, with much depending upon the facts and circumstances of the particular case. Matter of Jacqueline F., 47 NY2d 215, 417 NYS2d 884 (1979); Matter of Kaplan, 8 NY2d 214, 203 NYS2d 836 (1960)

Clearly, there can be no attorney-client privilege in the absence of an attorney-client relationship; Priest v. Hennessy, supra . and, once established, the privilege will apply equally to communications from the client to the attorney and vise versa. Spectrum Systems International Corporation v. Chemical Bank, supra . The burden of proving the existence of the privilege rests with the party asserting same. In re Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, supra .; Priest v. Hennessy, supra .; A. Weis Real Estate Corp. v. Katz, 295 AD2d 547, 744 NYS2d 888 (2nd Dept. 2002) The Defendants herein have not met that burden.

The conversation of August 23, 2006, between Vazquez' niece, Gloria Modesto, and the Plaintiff, involved a discussion of the payment of the Plaintiff's fee. Such conversations, however, do not ordinarily constitute a confidential communication. Priest v. Hennessy, supra .; Oppenheimer v. Oscar Shoes, Inc., 111 AD2d 28, 488 NYS2d 693 (1st Dept.1985) "The name of the person retaining an attorney for another and the amount of the retainer paid are quite simply not the confidences which the privilege was intended to protect." Priest v. Hennessy, supra . at 70, 431 NYS2d 511(1980); see also: People v. Stewart, 230 AD2d 116, 656 NYS2d 210 (1st Dept.1997) The country from which such funds were coming is entitled to no greater protection. Nor may this conversation properly be considered a secret, "the disclosure of which would be embarrassing or would be likely to be detrimental to the client." 22 N.Y.C.R.R. § 1200.19(a) [DR 4-101(1)] Contrary to the Defendants' theory, that disclosure of Plaintiff's retainer coming from family in Mexico would [*6]somehow "undermine [the defense claim that Vazquez' interests were adverse to those of co-defendant Perez] by showing joint financial support from Mexico[,]" (Birmingham Affirmation 7/2/07, ¶ 15) there is nothing in the Plaintiff's bill which indicates the money from Mexico has anything whatsoever to do with Perez. Moreover, the Defendants readily acknowledge that " VAZQUEZ' and his family made no secret that they were from ... Atlixco [Mexico]"(Birmingham Affirmation 7/2/07, ¶ 11) as was Perez.

The conversation of August 29, 2007, among the Plaintiff, Modesto, Cruz and an individual named "Giancarlo" is similarly without protection, as communications made in the known presence of third parties are not privileged. People v. Osorio, 75 NY2d 80, 550 NYS2d 612 (1989); Lightman v. Flaum, 278 AD2d 373, 717 NYS2d 617 (2nd Dept. 2000) aff'd 97 NY2d 128, 736 NYS2d 300 (2001); Doe v. Poe, 92 NY2d 864, 677 NYS2d 770 (1998)

Whether they agreed to pay the Plaintiff's fee or simply guarantee the fee, Modesto and Cruz were not clients of the Plaintiff. The mere payment of an attorney's fee on behalf of another does not create an attorney-client relationship between the attorney and the payor. Priest v. Hennessy, supra .; Moran v. Hurst, 32 AD3d 909, 822 NYS2d 564 (2nd Dept. 2006) Nevertheless, communications between one serving as an agent for either the attorney or the client, to facilitate communication, generally will be privileged. People v. Osorio, supra .; Stroh v. General Motors Corporation, 213 AD2d 267, 623 NYS2d 873 (1st Dept.1995); Robert V. Straus Productions, Inc. v. Pollard, 289 AD2d 130, 734 NYS2d 170 (1st Dept. 2001) While Modesto and Cruz were clearly acting as intermediaries and agents for the incarcerated Vazquez, the same cannot be said for "Giancarlo." The suggestion of counsel for the Defendants that "Giancarlo's" presence was somehow necessary to assist in the communication among Plaintiff, Modesto and Cruz is belied by the fact that Modesto and Cruz met with the Plaintiff periodically to discuss Vazquez' case without "Giancarlo" or any other interpreter, as well as the representations of Modesto and Cruz that they were interpreting tapes of telephone conversations received from the prosecution, from Spanish to English, for the Plaintiff.

The Defendants have similarly failed to demonstrate that the alleged conversation of September 7, 2006, between the Plaintiff and Vazquez, was privileged. In the first instance, in attacking this conversation, Vazquez suggests that it may never have taken place. In that event, there is no privilege. Nevertheless, this alleged conversation, in which Vazquez allegedly does not threaten his co-defendant Perez but indicates that he would harm him in some fashion if they were both back in Mexico, was not one made for the purpose of obtaining legal advice or services, Hoopes v. Carota, supra .; In re Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, supra .; All Waste Systems, Inc. v. Gulf Insurance Company, supra . and may constitute a statement of Vazquez' intent to commit a crime, which is not a protected confidence or secret. 22 N.Y.C.R.R. § 1200.19 [DR 4-101(c)(3)]; People v. DePallo, 96 NY2d 437, 729 NYS2d 649 (2001); People v. Darrett, 2 AD3d 16, 769 NYS2d 14 (1st Dept. 2003)

The above notwithstanding, "even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure." Priest v. Hennessy, supra . at 69, 431 NYS2d 511, 514 (1980); see also: People v. Osorio, supra .; Spectrum Systems International Corporation v. Chemical Bank, supra . One such exception is to be found in 22 N.Y.C.R.R. § 1200.19(c)(4), [DR 4-101(C)(4)] which provides: "(c) A lawyer may reveal: (4) Confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct." 22 [*7]N.Y.C.R.R. § 1200.27(a)(2) [DR 5-108(A)(2)] also provides, in pertinent part, "(a) ... a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure: (2) Use any confidences or secrets of the former client except as permitted by section 1200.19(c) of this Part, ...." See: Jamaica Public Service Co. Ltd. v. AIU Insurance Company, 92 NY2d 631, 684 NYS2d 459 (1998); First Federal Savings & Loan Association of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557 (S.D.NY 1986) ["The most frequently invoked rule, which was principally a product of nineteenth-century American common law, permitted disclosure by the attorney if he was suing the client to collect a fee ...."]; Mitchell v. Bromberger,2 Nev. 345, (S.C. Nev. 1866) [at trial to recover legal fees it was proper for plaintiff to "state fully the manner in which he and his partner were employed by the defendant; detail[] all the services rendered by them, and also state[] the counsel which they gave the defendant in the matter in which they were employed."]; Stern v. Daniel, 47 Wash. 96, 91 P. 552 (S.C. Wash. 1907) ["as between the attorney and client the rule of privilege will not be enforced ... where it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of his attorney, or when it would be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights."]

Given all of the foregoing facts and circumstance, the court does not find it improper for the Plaintiff to have annexed his time records, which forms the basis for his action, to his Complaint. Accordingly, that branch of the Defendants' motion which seeks the dismissal of the Complaint and/or the sealing of the records of this action is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

November 2, 2007

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: "Nadel" is a reference to the attorney for Vazquez' co-defendant in the criminal matter and "Mrs. Perez" is the wife of the co-defendant and the alleged target of the alleged conspiracy to commit murder for which Vazquez was arrested.