Law Offs. of Thomas F. Liotti v Dianfend Jiang
Annotate this CaseDecided on March 18, 2008
District Court of Nassau County, First District
The Law Offices of Thomas F. Liotti, and Thomas F. Liotti, Esq., Plaintiffs,
against
Dianfend Jiang, Defendant.
20852/07
Plaintiff pro se: Thomas F. Liotti, Esq
Defendant pro se: Dianfeng Jiang
Andrew M. Engel, J.
The Plaintiffs commenced this action on June 7, 2007, seeking to recover monies allegedly due and owing for legal services allegedly performed pursuant to a written retainer agreement dated May 17, 2005. Issue was joined, by the service of the Defendant's Answer, which consisted of a general denial and counterclaims, on or about July 6, 2007. The Plaintiff served a Reply to Counterclaim on July 27, 2007. Following an arbitration held pursuant to 22 N.Y.C.R.R. Part 28, on October 12, 2007, the Defendant filed for a trial de novo, with a jury demand.
The Plaintiffs now move, pursuant to CPLR § 3211(a)(7), for an order dismissing the Defendant's counterclaims and, pursuant to CPLR § 4101, striking the Defendant's jury demand. The Defendant opposes the motion.
The Defendant's counterclaims allege that the Plaintiffs neither billed him, nor provided services, in accordance with the parties' retainer agreement. Providing detailed factual allegations, the Defendant claims, inter alia, that he was never provided with monthly bills for the services allegedly performed; that he was double billed for some items of work; that he was billed for work or court appearances that did not occur as billed; that the Plaintiff, Thomas F. Liotti, Esq., abandoned his case; that the Plaintiffs' continued lack of familiarity with his case resulted in unnecessary billing; and, that the Plaintiffs failed to obtain documentation from the Suffolk County District Attorney's office which was pertinent to the case being handled by the Plaintiffs. In addition to alleging that the Plaintiffs' conduct, as detailed by the Defendant, caused him to be over-billed, the Defendant alleges that the Plaintiffs' conduct "really hurt [his] feeling (sic)" (Answer 7/6/07, ¶ 3) and "made [him] felt (sic) bad." (Answer 7/6/07, ¶ 5) The Defendant's counterclaims conclude by indicating that the Defendant seeks $100,000.00, "to compensate for [*2]mental distress" (Answer 7/6/07, ¶ 11) and $5,000.00 for "unsatisfied service." (Answer 7/6/07, ¶ 11)
In seeking the dismissal of these claims, the Plaintiffs first argue that the Defendant's Answer "consists of the form supplied by the District court [and] ... a seven-page document, unsigned, which fails to meet the requirements of CPLR 2101." (Liotti Affidavit 2/13/08, ¶ 4) The court first notes that, contrary to the Plaintiffs' representation, the pages following the answer form provided by the District Court Clerk's office, which spell out the factual allegations of the Defendant's counterclaims, are properly signed and notarized. Moreover, while the Plaintiffs do not point to any other alleged defects in the form of the Defendant's counterclaims, CPLR § 2101(f) provides, in pertinent part, "The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections." The Plaintiffs did not so reject the Defendant's Answer, and will be deemed to have waived any objection as to its form. cf. Neveloff v. Faxton Children's Hospital and Rehabilitation Center, 227 AD2d 457, 643 NYS2d 138 (2nd Dept.1996); Neff v. Steven Schwartzapfel, P.C., 254 AD2d 137, 679 NYS2d 37 (1st Dept.1998); Deygoo v. Eastern Abstract Corp., 204 AD2d 596, 612 NYS2d 415 (2nd Dept.1994)
The Plaintiffs next argue that "the Defendant's Counterclaim is indecipherable ... and is therefore impossible to formulate a response to it." (Liotti Affidavit 2/13/08, ¶ 5) This allegation notwithstanding, the Plaintiffs managed to file a thirteen (13) page, thirty nine (39) paragraph Reply to Counterclaim.
Confusing a summary judgment motion, pursuant to CPLR § 3212, with a motion to dismiss for failing to state a cause of action, pursuant to CPLR § 3211(a)(7), the Plaintiffs argue that the counterclaims should be dismissed "because there exists no triable issue of fact." (Liotti Affidavit 2/13/08, ¶ 11) It should here be noted that the Plaintiffs neither moved for summary judgment nor demonstrated the absence of genuine triable issues of fact. See: Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978)
It is well settled that on a motion to dismiss for failure to state a cause of action, the pleading in question must be construed in a light most favorable to the pleader and all factual allegations must be accepted as true. see, Grand Realty Co. v. City of White Plains, 125 AD2d 639, 510 NYS2d 172 (2nd Dept. 1986); Barrows v. Rozansky, 111 AD2d 105, 489 NYS2d 481 (1st Dept. 1985) By statute, pleadings are to be liberally construed and defects ignored if a substantial right of a party is not prejudiced. CPLR § 3026 Furthermore, in Gruen v. County of Suffolk, 187 AD2d 560, 590 NYS2d 217 (2nd Dept. 1992), the Appellate Division, Second Department held that on a motion to dismiss for failure to state a cause of action, the sole criterion is whether the pleading states a cause of action. A motion to dismiss will fail if from the four corners of the pleading the factual allegations, when taken together, manifest any cause of action cognizable at law, regardless of whether the pleader will ultimately prevail on the merits. see also, Becker v. Schwartz, 46 NY2d 401, 413 NYS2d 895 (1978).
While not artfully stated, the detailed factual allegations set forth by the Defendant set forth two (2) counterclaims; one for the intentional and/or negligent infliction of emotional distress and one for a refund of excessive charges incurred due to the Plaintiff's alleged breach of the retainer agreement. Without passing upon the ultimate merits of these claims, at this time, it is the opinion of this court that the Defendant's first stated counterclaim cannot stand, as a matter [*3]of law; the second counterclaim may proceed.
"It is beyond cavil that a plaintiff cannot, in an action for breach of contract, recover damages
for emotional distress (Wehringer v. Standard Sec. Life Ins. Co. of New York, 57 NY2d
757, 454 NYS2d 984, 440 NE2d 1331)." Fleming v. Allstate Insurance Company, 106
AD2d 426, 482 NYS2d 519 (2nd Dept.1984); see also: Campbell v. Silver
Huntington Enterprises, LLC,288 AD2d 416, 733 NYS2d 685 (2nd Dept. 2001) Similarly,
damages for emotional distress are not recoverable in a legal malpractice action. Epifano v.
Schwartz, 279 AD2d 501, 719 NYS2d 268 (2nd Dept. 2001); Dirito v. Stanley, 203
AD2d 903, 611 NYS2d 65 (4th Dept.1994) Moreover,
"While ... physical injury is no longer a necessary component of a cause of action to
recover damages for the negligent infliction of emotional distress (citations omitted), the courts
of this State have yet to recognize a cause of action as broad as that asserted by the [Defendant].
The circumstances under which recovery may be had for purely emotional harm are extremely
limited and, thus, a cause of action seeking such recovery must generally be premised upon a
breach of a duty owed directly to the [Defendant] which either endangered the [Defendant's]
physical safety or caused the [Defendant] fear for his ... own physical safety (citations omitted)."
Lancellotti v. Howard, 155 AD2d 588, 547 NYS2d 654 (2nd Dept.1989);
see also: E.B. v. Liberation Publications, Inc., 7 AD3d 566, 777 NYS2d 133 (2nd
Dept. 2004); Gaylord v. Fiorilla
28 AD3d 713, 813 NYS2d 534 (2nd Dept. 2006) The Defendant's allegations of hurt feelings or
feeling badly do not rise to this level. Additionally, the court does not find that the Plaintiffs'
alleged conduct "was especially calculated to cause' emotional distress (Prosser and Keeton,
torts § 12, p. 60 [5th ed])." Green v. Leibowitz, 118 AD2d 756, 500 NYS2d 146
(2nd Dept. 1986) [dismissing client's claims for emotion distress allegedly resulting from
defendant's legal malpractice and fraud]
The Defendant's second counterclaim, however, is sufficiently stated. If the Defendant's factual allegations of, inter alia, double billing, failure to perform certain services, and failure to provide timely bills are taken as true, Gruen v. County of Suffolk, 187 AD2d 560, 590 NYS2d 217 (2nd Dept.1992); Rotanelli v. Madden, 172 AD2d 815, 569 NYS2d 187 (2nd Dept.1991), and resulted in the charging of excessive and unearned fees, in violation of the retainer agreement, the Defendant may be entitled to a refund for the Plaintiffs' breach of the parties' agreement.
Accordingly, that branch of the Plaintiffs' motion seeking to dismiss the Defendant's counterclaims is granted to the extent of dismissing the counterclaim sounding in infliction of emotional distress only. The balance of this branch of the Plaintiffs' motion is denied.
The Plaintiffs seek to vacate the Defendant's jury demand, alleging that since the Defendant's "Counterclaim lies on a claim for breach of contract, it constitutes an equitable claim. As such, his request for a jury trial should be denied." (Liotti Affidavit 2/13/08, ¶ 13) The Plaintiffs fail to cite any authority for this novel argument.
CPLR § 4101(1) provides, in pertinent part, "In the following actions the issues of fact shall be tried by a jury... an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only." "Issues of fact on causes of action for money only, whether sounding in tort, contract, or anything else, are triable by jury." Siegel, Practice Commentaries to Sect. 4101, McKinney's Cons Law of NY, Book 7B, p. 190 There is no [*4]question that the Plaintiffs' Complaint and the Defendant's remaining counterclaim seek nothing more than a money judgment. As noted in Motor Vehicle Manufacturers Association of the United States, Inc. v. State of New York, 75 NY2d 175, 551 NYS2d 470 (1990), "The principal legal' remedy to enforce a contract is a judgment awarding a sum of money." As was recognized in Hudson View II Associates v. Gooden, 222 AD2d 163, 644 NYS2d 512 (1st Dept. 1996), "[a] cause of action seeking money damages for breach of contract is quintessentially an action at law" in which the parties are entitled to a jury. see also: Behrins & Behrins, P.C. v. Chan, 15 AD3d 515, 791 NYS2d 566 (2nd Dept. 2005); Harris v. Trustco Bank New York, 224 A.D2d 790, 637 NYS2d 527 (3rd Dept. 1996)
Accordingly, that branch of the Plaintiffs' motion seeking an order striking the Defendant's jury demand is denied.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
March 18, 2008
___________________________
Andrew M. Engel
J.D.C.
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