Butterman & Kahn, LLP v Yildiz

[*1] Butterman & Kahn, LLP v Yildiz 2010 NY Slip Op 52371(U) [30 Misc 3d 1220(A)] Decided on December 13, 2010 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2010
Supreme Court, New York County

Butterman & Kahn, LLP, Plaintiff,

against

Slivia Yildiz (a/k/a Silvia Morgan), Defendant.



106195/10



ATTORNEY FOR THE PLAINTIFF :

Firm: BUTTERMAN & KAHN, LLP

Address : 425 PARK AVENUE, 27TH FL.

NEW YORK, NY

10022

Phone : 212-308-7697

ATTORNEY FOR THE DEFENDANT :

Firm: LORI NEVIAS - LAW OFFICES

Address : 266 MERRICK ROAD - SUITE 103

LYNBROOK, NEW YORK

11563

Phone : 1-516 766-4141

Judith J. Gische, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this (these) motion(s):

PAPERSNUMBERED

Notice of Motion, DBK affirm., exhibits..............................................................................1

Notice of X-Mot, LN affirm in Opp, SY affid, exhs..............................................................2 DBK reply affirm................................................................................................................3

________________________________________________________________ _____

Hon. Gische, J.: [*2]

Upon the foregoing papers the decision and order of the court is as follows:

In this action, the plaintiff law firm seeks to recover from the defendant, its former client, the attorneys' fees and expenses incurred pursuant to a Retainer Agreement executed in January 2004. Plaintiff now moves for summary judgment pursuant to CPLR § 3212 on the second cause of action for account stated and dismissing defendant's five affirmative defenses and first counterclaim. Plaintiff also seeks an award of interest. The defendant opposes the motion and cross-moves for sanctions and reimbursement for her attorneys fees (CPLR § 8303 [a]; 22 NYCRR 22.12 [g]).

Many of the relevant facts are undisputed and are based upon documentary evidence. Plaintiff represented the defendant in a highly contested divorce action entitled Silvia S. Yildiz v. Middat Yildiz, Index Number 10169/04 and in related proceedings in Family Court in Nassau County. Eleven motions were submitted in the divorce action, including cross motions, and at least twenty-one court appearances were made in Supreme Court on behalf of the defendant. Attorney Kahn was the attorney-in-charge of plaintiff's representation of the defendant in the divorce action. Attorney Kahn has submitted an affirmation based upon her personal knowledge of the underlying divorce act

The divorce action was ultimately settled on the eve of trial in March 2006. The parties entered into two Stipulations and Agreements, both dated March 10, 2006, settling the issue of the grounds for divorce as well as many financial and child custody issues. However, the settlement was stymied by unresolved financial issues concerning child support, arrears and other add-ons. The parties stipulated that the Hon. Sidney F. Strauss would make a determination, after written submissions, on the financial issues. By Order dated September 25, 2007, Judge Strauss directed the defendant's husband, Middat Yildiz, to pay for both basic child support and other child-related expenses.

Plaintiff promptly served Notice of Entry of order on Mr. Yildiz, along with a proposed Judgment of Divorce and Findings of Fact and Conclusions of Law. Mr. Yildiz objected in writing to the proposed Judgment and Findings and submitted his own proposed Counter-Judgment and Counter-Findings and Conclusions. He also brought two motions, which were subsequently denied by Judge Strauss.

In or about December 2008, Judge Strauss requested additional information before he would sign a judgment. This need for additional information was largely precipitated by changes in the law. Plaintiff was required to obtain this information from the defendant, who according to Attorney Kahn, refused to communicate with plaintiff. Eight months passed without any response from the defendant to plaintiff's letters or emails. In September 2009, plaintiff moved to be relieved as defendant's counsel in the divorce action. After a hearing, the defendant consented to plaintiff's withdrawal from the divorce action and Judge Strauss granted plaintiff's motion on the record.

Plaintiff, thereafter, commenced the instant action, alleging three causes of action seeking recovery of its legal fees and disbursements, to wit: [1] breach of contract; [2] account stated; and [3] quantum meruit.

Plaintiff has provided to the court print-outs of the bills it sent the defendant over the course of the five years that it represented her. Plaintiff expended 876.80 hours of attorney time on the defendant's case, resulting in time charges of $277,694.00. Plaintiff also incurred disbursements of $10,028.95 on plaintiff's behalf. Plaintiff [*3]concedes that the defendant made forty-six partial payments totaling $98,710.90, the latest of which was by check dated November 6, 2009. Plaintiff therefore seeks to recover the balance, $189,047.25 [FN1].

In her Verified Answer, the defendant asserts five affirmative defenses: [1] failure to state a cause of action; [2] that "[p]laintiffs [sic] were not authorized to perform the work which they allegedly performed; [3] that "[p]laintiff failed to perform the agreed upon work, and did not obtain the promised result for defendant'; [4] that "[p]laintiff negligently performed the work for which it was hired"; and [5] that "[p]laintiff has already been overpaid by defendant."

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only if it meets this burden, will it then shift to the party opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth Century Fox Film , 3 NY2d 395 (1957). When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303 AD2d 459 (2nd dept. 2003).

Account stated

Plaintiff argues that it has established a prima facie claim for account stated. Plaintiff seeks a judgment in its favor for $189,047.25 plus interest at the statutory rate of nine percent per annum from June 18, 2007. Plaintiff has provided proof of the billing statements it sent to the defendant as well as proof of the partial payments made by her. Plaintiff also seeks to disavow any claim by the defendant that she was confused or otherwise taken advantage of by plaintiff because it highlights the fact that the defendant is a law school graduate and practiced as an attorney in Bulgaria.

In opposition, the defendant points to a statement made by Jay Butterman, another principal of the plaintiff law firm. The statement was made on September 23, [*4]2009 during the court appearance where Judge Strauss was hearing plaintiff's application to withdraw as counsel. Attorney Butterman stated as follows: So I am being asked now to represent the client who - whose communications has [sic] broken down. And by the way, your Honor, who does owe me approximately $40,000, just so the record is clear, that while I never move solely because there is a fee issue, I am not - no effort has been made to pay my firm...

In her affidavit, the defendant paints a very different picture of the her professional relationship with plaintiff. She claims, inter alia, that the defendant routinely misrepresented the actual amount plaintiff intended to bill her, that the reason why plaintiff moved to withdraw was because of legal fees owed, and that defendant ultimately fired plaintiff, rather than being "convinced" by Judge Strauss to consent to plaintiff's withdrawal.

As evidence of her objection to plaintiff's bills, the defendant points to a statement she made on the record during the September 23, 2009 court appearance: [T]ruth is, I do want to keep my legal fees down to a minimum because every time I communicate, it shows as a big sum on my bill....For example, I can show you in June nothing was happening in my case, I'm charged $90 for research. I can't afford to be on the phone with my lawyers and to reply to their emails because I'm billed for it, and I can't afford it."

Otherwise, the defendant claims that she made objections to bills rendered by theplaintiff, but has provided no proof other than her own affidavit.

An account stated represents an agreement between the parties reflecting amounts due on prior transactions. Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868 (3d Dept. 1993), lv. denied 82 NY2d 660 (1993). The receipt and retention of an account, without objection, within a reasonable period of time, gives rise to an account stated entitling the moving party to summary judgment in its favor. Morrison Cohen Singer & Weinstein, LLP v. Ackerman, 280 AD2d 355 (1st Dept. 2001). Where either no account has been presented or there is any dispute regarding the correctness of the account, the cause of action fails. M & A Const. Corp. v. McTague, 21 AD3d 610 (3rd Dept. 2005).

Here, plaintiff has established a prima facie cause of action for account stated against the defendant. Plaintiff has established that it sent detailed billing statements to the defendant reflecting the legal serviced provided and the fees and disbursements incurred on the defendant's behalf. Plaintiff has also established that the defendant made partial payments on many of these billing statements, and otherwise retained same without objection. Here, the defendant's retention of the bills and her forty-six partial payments give rise to an account stated (see Morrison Cohen v. Waters, 13 AD3d 51 [1st Dept 2004]; Morrison Cohen Singer & Weinstein, LLP v. Ackerman, 280 [*5]AD2d 355 [1st Dept 2001]; see also Moses & Singer LLP v. S & S Machinery Corp., 251 AD2d 271 [1st Dept 1998]),

The defendant has failed to raise a triable issue of fact on the issue of timely objection. Her argument that Attorney Butterman's statement on the record at a court proceeding that the defendant owed $40,000 is rejected because is not relevant to issue of whether the defendant timely objected to the bills she indisputably received. It is undisputed that the defendant received each and every one of the bills that the plaintiff sent. Moreover, Attorney Butterman's misrepresentation of the amount that the defendant owed to plaintiff has been explained by plaintiff as a reasonable error. Attorney Butterman supposedly confused the amount the defendant owed to his firm with the total child support arrears owed by Mr. Yildiz at that point.

Indeed, the defendant made another partial payment to the plaintiff after the September 2009 court appearance where Attorney Butterman misspoke. Even this partial payment was a recognition of the defendant's indebtedness to the plaintiff (Boulanger, Hicks, Stein & Churchill, P.C. v. Jacobs, 235 AD2d 353 [1st Dept 1997]). The defendant's claims that Attorney Butterman "lied" to the court or downplayed the amount the defendant owed to his firm is a red herring.

Any claims that the defendant made timely objections in writing are unsubstantiated. She claims to have responded to plaintiff via email that the fees were too high. However, the defendant has not come forward with these emails and has failed to provide any explanation for not providing such proof of her alleged written objections.

To the extent that the defendant claims that she made oral objections to the plaintiff's billing statements, this claim is unavailing. She has failed to provide any details about her alleged oral objections such as "when and to whom made" (compare Jaffe & Asher v. Cushing, 289 AD2d 17 [1st Dept 2001]). The defendant does not claim that she ever directed plaintiff to reduce costs by not opposing certain claims made by Mr. Yildiz in the underlying divorce action, or otherwise not conduct certain tasks. Similarly, the defendant's claims that she "expressed concern" about the bills does not equate rejection of those bills.

The defendant also complains about the quality of plaintiff's representation and the her dissatisfaction with the results she obtained. She argues that she is entitled to a refund. She claims that the judgment of divorce was delayed because plaintiff failed to inform the court of the defendant's new surname. She also maintains that custody was never really a contested issue. Generally, the defendant argues that the underlying divorce action was an ordinary matrimonial proceeding between a divorcing couple of very modest means, which certainly did not warrant the fees that plaintiff charged and seeks to recover herein. These self-serving claims are unsupported by proof in admissible form and, in any event, are not so intertwined with plaintiff's account stated claim so as to preclude summary judgment see i.e. Morrison Cohen & Singer, LLP v. Ackerman, 280 AD2d 355 [1st Dept 2001]).

The defendant also maintains that the plaintiff routinely misled her into believing her legal fees would be lower than they actually were. Claims like these strain credulity. As it is undisputed that the defendant received detailed monthly billing statements, it is incredible that the defendant now claims she was misled about what she owed. Her [*6]claim that plaintiff promises the defendant would "get a break" on the bills is also unsubstantiated. Regardless, the defendant's attempts to object to plaintiff's bills now are belated. The defendant's failure to object to any of the bills she received over the course of plaintiff's five years of representation, and her partial payments, are prima facie evidence that those amounts are valid and correct.

Accordingly, plaintiff's motion for summary judgment on the second cause of action is granted. Plaintiff is therefore entitled to a judgment in its favor and against the defendant for the difference between what it billed, and what the defendant paid, to wit: $189,009.05 (see footnote 1).

Plaintiff also seeks interest at the statutory rate, to be calculated from June 18, 2007, which it claims is a reasonable intermediate date as a midway point in the plaintiff's representation and billing of the defendant (CPLR § 5001 [b]) . The defendant has not objected to this date. The court agrees that June 18, 2007 is a reasonable intermediate date and therefore awards interest to plaintiff at the statutory rate from that date.

Since the first and third causes of action seek duplicate relief to the second cause of action, they are severed and dismissed.

The affirmative defenses and counterclaims

Defendants' affirmative defense that plaintiff has failed to state a cause of action is dismissed in light of the court's disposition of that branch of plaintiff's motion seeking summary judgment on the second cause of action.

The defendant's second affirmative defense that the plaintiffs was not authorized to perform the work which it performed on behalf of the defendant is dismissed in light of the unequivocal retainer agreement, and in the absence of any triable issues of fact.

The third affirmative defense that "[p]laintiff failed to perform the agreed upon work, and did not obtain the promised result for defendant' is again belied by the retainer agreement. Accordingly, this defense is also dismissed.

The defendant has also asserted an affirmative defense sounding in attorney malpractice: "[p]laintiff negligently performed the work for which it was hired". Plaintiff claims that this counterclaim is supported by mere conclusory allegations; and should be dismissed because the defendant has failed to establish that she would have obtained a better result in the underlying divorce action but for plaintiff's alleged negligence.

On her claim for legal malpractice, the defendant "must demonstrate that plaintiff failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that plaintiff's breach of this duty proximately caused [the defendant] to sustain actual and ascertainable damages." Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007) [internal citations and quotations omitted]. To establish causation, the defendant must show that she would have prevailed in the underlying action or would not have incurred any damages, "but for" the lawyer's negligence. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, supra.

Although defendants claim that she paid too much for the result plaintiff achieved, she has not stated any specific facts about what they believe the law firm did wrong, or what kind of a better result they expected, than ultimately was achieved. [*7]Rather, the defendant complains about the results achieved. She maintains that plaintiff failed to get her a divorce, did not collect any child support arrears and did nothing to prevent her ex-spouse from receiving a downward modification on appeal of the trial court order. These claims are belied by the record.

Plaintiff was relieved as counsel prior to the divorce action becoming final because the defendant stopped communicating with plaintiff. In fact, it is undisputed that the divorce action could not be fully resolved until the defendant provided necessary information to the presiding court then, information she refused to provide. It is incredible that the defendant complains about the plaintiff's withdrawal as counsel when it was her actions that necessitated that result. To allow the defendant to benefit from her own actions would be unjust.

As for the appeal, the defendant did not retain plaintiff to represent her. Therefore, the Appellate Division's downward modification of her ex-husband's child support payments cannot be attributed to any malpractice that the plaintiff allegedly committed on these facts. Moreover, the fact that different results are obtained on an appeal does not necessary mean that there was malpractice committed in connection with the result obtained below.

Accordingly, plaintiff's motion to dismiss the defendants' fourth "affirmative defense" sounding in legal malpractice is granted

The defendant's remaining affirmative defense that she "overpaid" plaintiff must also be dismissed. The balance due and owing by the defendant is clear on this record.

Defendant has interposed a counterclaim which seeks affirmative monetary relief based upon the same claims made in her defenses and affirmative defenses in this matter. Although it would appear that the counterclaim should be dismissed, based upon the reasoning in this decision, plaintiff has not sought such affirmative relief in this motion. CPLR §2215; Clements v. Peters, 33 AD2d 1096 (4th dept. 1970).

Accordingly, the court will set a conference date for the remaining counterclaim.

The cross-motion

The defendant has cross-moved for sanctions, arguing that the plaintiff's motion for summary judgment is frivolous. Having found that the plaintiff is entitled to summary judgment on the second cause of action, the court must deny the cross-motion.

Conclusion

In accordance herewith, it is hereby:

ORDERED that plaintiff's motion for summary judgment on the second cause of action is granted; and it is further

ORDERED that the defendant's affirmative defenses are severed and dismissed; and it is further

ORDERED that the defendant's cross-motion is denied; and it is further

ORDERED that plaintiff is entitled to a money judgment in its favor and against the defendant in the total amount of $189,009.05 plus interest thereon from June 18, 2007 at the statutory rate; and it is further

ORDERED that plaintiff's first and third causes of action are severed and [*8]dismissed, and it is further

ORDERED that the Clerk shall enter a judgment in accordance with this decision and order and it is further

ORDERED that a conference on the remaining counterclaim shall be held on January 27, 2011 at 9:30 am.

Any requested relief not expressly addressed herein has nonetheless been considered by the court and is denied.

This constitutes the decision and order of the court.

Dated:New York, New York

December 13, 2010

So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C. Footnotes

Footnote 1: The court notes that there is a small discrepancy between the amount sought by plaintiff in this action and the amount that should be due and owing from plaintiff based upon the figures provided. $277,694.00 (time charges) + 10,028.95 (disbursements) - $98,710.90 (partial payment) = $189,009.05.