Wu & Kao v Wang

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Wu & Kao v Wang 2012 NY Slip Op 32920(U) November 27, 2012 Sup Ct, New York County Docket Number: 104625/2010 Judge: Kathryn E. Freed Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON I211012012 [* 1] SUPREME WURT OF THE STATE OF NEW YORK NEW YORK COUNTY , H(=Ji\.l~ r ' -,.3 GF , PRESENT: rm$TIcE S U k t L ,+A L3"ktT ~ *', *. -.?".-. I PART \Q Justice Index Number: 104625/2010 wu & KAO INDEX NO. VS. MOTION DATE WANG, YU QlNG SEQUENCE NUMBER : 002 MOTION SEQ. NO. (27 % SUMMARY JUDGMENT The following papers, numbered Ito Notice of MotionlOrder to Show Cause I were read on this motion to/for -Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits nd? r w Upon the foregoing papers, it is ordered that this motion is P ..................................................................... CASE DISPOSED 0 NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: .......................... .MOTION 1s. GRANTED DENIED nGRANTED IN PART ~3 OTHER 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 1 1 FIDUCIARY APPOINTMENT E REFERENCE I 1. CHECK ONE: [* 2] 1) R 1:S ENT; . Y U QING WANG a/k/a I-IIINIIY WANG, I Ion. Kathryn E. Freed J.S.C. Defendant. PA I E I< S NO T ICI; OF MO I ION A ClCOSS MO I ION.......... A N S W L RIN(; A I;F I IIAV ITS....................... R131 1,YINC; AI. ~~lI>AVITS ........... ................................................ ............... ................. ..... 4,5,6,7 ...... Plaintill s iiiove for an Order pursuant to CPLR(i32 12, granting suinmary judgment and dismissing and/or striking defendant s Aiiswcl-and threc rciiiaiiiing Alliriiiative Dcl cnscs ( tlic First, Fourth aiid Fillli), as set lorlh in dcfcndant s Aiiieiided Answer, dated May 18, 201 0. 13el endant cross-iiiovcs for an Order pursuant to CPLR $32 12, granting suniiiiary judgmcnt. After a review of thc papcrs presented, all relevant statutcs and casclaw, the Court denies plaintiff s motion and grants defendant scross-niotion. 1 [* 3] ." Factual and nroccJura1 background: 'I hc instant action was commenccd via Sunillions and Complaint lilcd April 9, 201 0. Dcf'cndant filed an Amcnded Answer on May 17-2010. Plaintii'f'law firm sucs for outstanding lcgal f'ccs it iiiaintains dcfcndant owes for past serviccs rendcrcd to dcfkiidant, based on causes of action souiidiiig in breach of contract, account stated, quaiititin meruit and iiii.just cririchinent. Defendant denics that he is personally liable lbr any of the demanded lcgal l'ees. It is important to note that plaintiffs had previously madc a motion f'or summary judgment 011 August 6, 20 1 0,wherciii they sought to have del'cndant's atiswcr and al'finnativc def'enscs striclccn. 1)el'cndant opposed and also cross-movcd for smiiiary judgincnt. In a subsequent Order datcd February 1 I , 201 1, Justice Judith Ciische dcnicd plaintifl's' motiou for sutninary judgment. I lowevcr, slic disiiiissed al I of dcfcndants's affirtnutivc dcl'cnses otccpt the First Affirmative l)cfeusc, which allcgcs failure to state a causc ol' action; the Fourth Afiirmativt. lkt'case, which allcges that dcfcndant disputes the aiiioiiiits billed; and the Fifth Affirmative Defense which allegcs that defendant iiever actcd in his personal capacity in the retciition of plaiiitilY Cor legal scrviccs. Justice C3schc denied the previous motion based on plainti flk' failure to "make a prima facie showing of. its entitlement to the rcquestcd relief." She round that plaintiffs failed to submit any written proof' tci support their allegation that ddcndant had pcrsoiially rctaincd them, iior did thcy submit an. ackiiowlcdgment that dcfciidant agreed to bc rcsponsi blc for Amcrsino's debts. Additionally, .lustice CZischc asserted that plaintifl's only proffered oiic document which iiidicatcd personal I<nowlcdgeo f any such agreement. This particular docirinent was an a f h i a t i o n of Anne Scling, a foniicr associate of plaintiff iirm. Justice Ciisclic noted that said af'firination was not only "unsigned," but it also containcd "bald and coiiclusory claims" which were "unavailing." Shc 2 [* 4] additionally statcd that defcndan's af'firtimtion was also "wholly silcnt on thesc issues." Justicc Gische also denied dcl'cndant's suiniiiary judgmciit motion based on his failure to niect his prima facic burdcn, dcclaring his affidavit to bc "largcly conclusory." She statcd that "Wang has not elimiiiatccl the possibility that he may bc responsible for at lcast soiiie of' plaintifi's legal l'ccs." Subscqucntly, a1 ; status confkrcncc 1 01 1 April 5 , 201 2, the parties inlbrmed the court that discovcry liad been complcted. PlaintifT's filcd their Note of' Issuc and Certi h a t e of ICcadiness on April 20 12. 'I'hc within iiiotioiis ciisiwd tliereaitcr. (7, I n his allidavit in support ofthc instant summary jLidgmcnt motion, plaintiff Wu avers that hc was "personally contacted and ciigagcd by 1)cfcndant Wang to be his personal attorney, and to rcprcsciil all o r his corporations, since i n or about 2005." 1Ie also avers that he represented Wang in ovcr twcnty actions, both corporate and personal, over tlic pcriod of' 2005 tlirough 20 10. Wu rci'ercnccs Wang's deposition wherein Waiig niaintaiiis that he "pcrsonally engaged Wu & Kao as his attorneys and dctailed tlic coiiiiiioii practicc for asltiiig Wu & Kao to represcnt hiin or his cornpanics on a iiiattcr." Al'tcr a rcvicw of thc relercnccd transcript pages appendcd to plaintil'ls' iiioving papers as I<xliibit"F," the Court tiiids that plninti ff' Wu mis-cliaractcrized Wang's statcments. In f'act, during tlic C O U ~ ofhis deposition, Wang cmphasizcd that plaintifls werc retained to handle only corporate S ~ matters and that he never contacted them in his personal capacity. 'krcl'ore, tlic transcript f'ails to support plainti ff's' assertion that they were hired to rcpresciit dcfciidant in defendant's personal mattcrs. Wu also avcrs "I pcrsonally had several phone calls with Mr. Wang, as well as in-pcrson nicetings, both in Wu & Kao's Manliattaii oflice, as well as our fortiici+I~lLisliing Office, between [* 5] .- 2005 and 2010, wherein MI-. Wang persoiially asked for WLI& Kao to handlc ccrtaiii matters and caw for hiin, both on belialt of his companies and on his own personal bcliall . Wu further avers that MI-.Wang, 011 four (4) separate occasions, personally proiniscd to pay the legal fecs owed, both on his own behalI and on behalf. of his defunct company, Aniersino Marketing Group, and even stated hc was willing to eiitcr into a I roniissory Notc for such amounts owcd, which wc prepared, but ultimatcly, hc ticvcr signed. Mr. Wang specifically promised to answcr sccondarily for the debts ol liis company, Amcrsino, and purported to bind 1iiniselCto any of Amersino s payiiieiit obligations lo Wu Sr Kau, ;is Anicrsino was dcfuiict. I In rcsponsc to this, Waiig avers that [I] iievcr agreed to bc personal liable for the unpaid fc ccs.I ncver talkcd with plaintiff for entering into a promissory notc. l lierc is 110 such conversation. (.sic).I IC also argues that 1 s]harcholders formcd corporations to do business in corporate L orm in order to scparalc our pcrsonal liability li.oiii corporation s liability. I hcrc is no reason for nic to agrec tu answer sccondarily for the debts of corporation. (.sic). Plaiiitifl s earlier summary judgiiiciit motion was dismissed by Justice Gische based on the conlusory iiatiirc of its claims. Specif-ically, shc noted that Wu I ailcd to sufficicntly sct forth thc basis of his lcnowlcdgc of Wang s hiring of either Wu personally o r Wu & Kao, including the spccilics ol liow and whcrc this allcgcdly all took placc. While i n tlic iiistant motion, Wu ~naintaiiis that lie was hir-cd by defendant for both corporate and personal reprcscntation, this claim remains uiisubstaiitiatcd in that no supporting physical cvidciicc has bccn subiiiittcd. I n an affidavit in Support ofMotion Suiiiinary .ludgmcnt, (sic), Robert Mark Wasko, Esq., who is of counscl to plaintiff, avers that an inspection of the invoices sent to d c h d a n t demonstrates that scvcral 01 the actions in which plaintiffs represented him were clearly personal, and not 4 [* 6] corporalc in nature. 111 paragraph 27( i)of his affidavit, Mr. Waslco rcl'crenccs tlic case of (,'oiiimissioncl.s of the State Insurance F~iiid v. "The Yu Oing Wanv &/a I-lcnry Wang ct.al," Index No. 402973/08, as an exaiiiplc ofa personal niattcr in which plaintiffs reprcscntcd defkndant. I lowever, a close inspcctioii of the invoices submitted indicate that this particular index nuiiiber is 1101 tlic sub-jcct ol'the instant suiiiiiions and complaint. I n fact, the only invoiccs involving ii mattcr bcl'ore thc Stalc Insurance Fund, arc under Iiidcx No. 40 1 879/07, whercin tlic iiaiiicd defendant is Ainersiiio Marketing Group, LLC. In his opposing affidavit. Wang asserts that hc was not a party in this pari i cular cmc. I n subparagraph 27(ii), Mr. Wasko gocs on to state that in "In lic Zhi-Xing Ilou," a Workcrs Coiiipeiisatioii mattcr, dcfcndaut was t i m e d as the employcr. HOW~VCI-, Exhibit C appended to dehidant's opposition papcrs, contains two docuineiits subiiiitted to the Workcrs Compensalion Hoard in thc %hi-Xinri 1 lou matter. 'Ilie first document is entitled "Notice of' Retainer and Appcatance on I3chal f of lhployer,"and the second document is eiititlcd "Dcferred Paynicnt Agrecmcnt." I n the retaincr agreemcnt, the cmploycr is listcd as "Aiiicrsiiio Marketing Group, LI,C" followcd by " 1 lciiry Wang." I lowever, t1w documcnt is signcd by "1 Icnry Wang" as "I'resident." IJndor the llcfcrred Agreement, Aiiiersiiio agrees to iiiakc payrncnt lo thc claimant, and the docuinciit is sigiicd by Yu Qing Watig, as President. Additionally, within tlic body of the agrecmcnt, tlic Workers Compensation Board states "[IJn the above refcrcnced ciiiployer number(s), on behalf on Amersino Markcting Group, I,LC ..." This clearly indicatcs that the cmploycr involved was hiiicrsino, and not Wang. It is dif'ticult to understand how this mattcr could bc deciiicd a pcrsonal one, in that it involved a controvcrsy with Amersino, with Aiiiersino agreeing to iiiakc paytnents to Zlii-Xing I-IOU. 5 [* 7] Again, plaintiff has f'ailed to submit any papers or othcr written documents to support its contention that the rcprescntatioii was solcly of' a pcrsoiial naturc. I:inally, in subparagraph 27(iii), Mr. Wnsko citcs "Scung .lu Intcrnational Corp. v. Yu Oing Wang a/k/a 11~111-yWan2 et al," lndcx No. 5097/09 (Kings County Suprcmo), as yct another matter in which plainlill'represented dclkndant on a pcrsoiial basis. I Iowcvcr, an inspection oftlic invoices subniitted i n the complaint, indicatcs that this inattcr is referenced as 'I .lu International Corp. v. Anicrsiiio Marketing Group, I ,I ,C," with thc same index numbcr. I n plaintill's Allirmation in Opposition of Cross-Motion, lloiiald N. Rizzuto, Esq., who appears as counsel to plaintiff, quotes Mr. Wakso's Allidavit (inaccuratcly), and adds that IIcnry Wang was iiamcd as a pcrsonal guarantor ofthc obligations of Amcrsino. However, plaintiff provides no proof ofthat allcgcd guarantee, and oiice again, fails to submit any documcntary proof substantiating its allegations. Moreover, Wang disputcs that this was a personal matter. IIc asserts that it was actually cntitlcd Seung .lu International C h p . v. Arnersino Markctin2 C j r o u i ~ LIL', and was a commcrcial landlord/tenant action brought against Aiiiersino lor unpaid renl. It is important to notc, however, that Wong docs not deny that this particular matter also involved a personal guarantee on his part. In lilrther argument in support ofplaintif'l's' iiiotion for summary judgment, in paragraph 30, M r . Wask o rc l'e rc nces p I ai nt i f h ' Exhi bi t Ci ," w h i ch con t ai 11 s nu me ro LI s e-niai 1s l?om An tic Scc 1i g , " a Ibrmcr associate of' plaintiff' l k n . Mr. Wasko argues that tlicsc c-mails conlirin defendant's promisc to pay tlic outstanding bills. He also argues that they iiidicatc that dcfcndant was involved in discussions with plaintiffs concerning their prospective representation of hiin in a personal bankruptcy proceeding. 1 Iowevcr, an inspcction ol' these e-mails rcvcals that cach of them was writtcn by Anne Seelig. While these e-mails might iiivolvc Seelig's understanding 01' what was [* 8] discussed, tlwy are not binding on dcfcndant absent sonic indication or writing from him proving his agrccmcnt to bc bound. Nor do plaintiffs submit any invoiccs associated with their allegcd rcprcscntation in said bankruptcy matter. In his affidavit i n opposition to plaintiffs summary judgment motion and in support of defendant s cross motion, defendant iiotcs that he first hircd plaintiffs 10 represent hiinself as wcll as anothcr sharcholdcr, I<amond %gang, i i i the restructuring of their company, Southeast I roduce 1,itiiitcd (USA). l)ef cnclant also states that lie only hired plaintiffs i n his corporate capacity, and adamantly denies hiring tliciii as a pcrsonal attorney to Iianctle my pcrsonal ~ i i a t t e ~ ~ . ftirthcr He rts that Iic b L ~ ~ c v c r with I laintiff l forp e r s o d bankruptcy as alleged by Plaintiff for the first talked time in the instant litigation ... I (sic). I1efktidan1 fitrthcr conleiids that all correspondcncc from plaintifl s was mailed to Amcrsino s of ficc addrcss, cvcii though it was addressed to both him and Aniersino. He appends somc corrcspondcncc, including suveral invoiccs, as his Exhibit A, Defendant asserts that all lcgal papers were storcd ntid maintained in Ainersino s offices by its adininistrativc cmployccs, and that said invoices wcrc codcd by plaintiilk as AMG which stands f o r Amcrsino Markctitig Group. 1)cl cndant asscrts that cvcn though plaintiffs possessed his homc addrcss, they ncvcr mailed any correspondence thcrc;, nor did they evcr carbon copy any corrcspondencc to him. Additioiially, lie asscrts that he never pcrsonally paid any or plaintii f? bills and that al I payiiicnts wcrc rendcrcd by corporate chccks. Included in his Exhibit I3, arc copies of checks paid to plaintiffs, which are all clcarly issued by Amcrsino. Mr. Wang disputes plaintifls ticcount ofwhy it was tcrminatcd rrom his employ. He admits that Amcrsino was liaving fitiancial difficulties which prompted Amersino to begin to closcly 7 [* 9] scrutii1ir.e plaintifl's bills. I n doing this, Aiiicrsino discovcred that the bills fbr legal serviccs were i 11ten s ivc1y co 11a i n i ng apparcn t 1y cxcessive chargcs and inany si gn i G ca11 t cliargcs for scrvices w11 i ch t I' werc not requested by Amcrsino" (.sic). Mr. Wang also accuscd plaititiffi o1'"double billing," and dcmandcd that they "cxplain what cxact services had bccn actually providcd." Wlien plaintiff'sfailed to acicquatcly explain said chargcs or producc their allcgcd work product relating to said charges, thcy were immcdiately lircd "in or about March 201 0." 'The Court notes that dcf'endant also failed to producc any documentation supporting his claim that he dispiitcd plaintiff's bills. 'I'hc drastic rciiicdy o f summary judgiiicnt should be granted only where thcrc are 110 triablc issucs ol'hct ( C'hcmical I3ank v. Wcst 195'" Strcct Dcvclopment Corp., 161 A.D.2d 2 18 [ l " Dept. 1 9Wj; I'carson v. Dix McHride, i , K , 63 A.11.3d 895 [2d J k p t . 20091 )- or where the issue is cven arguable or dcbatable ( Stone v. Goodson, 8 N.Y.2d 9 [1960] ). I n order to prcvail on a sumniary judgnicnt motion, tlic movant must make a prima facie showing of entitlcnicnt to judgment as a matter of law, thro~igliadmissible evidcnce, eliminating all material issues of. fact ( Alvarez v. Prospect Hospital, 68 N.Y .2d 320 19861 ). Once the movant dcnioiistrates cntitlcment tojudgnicnt, thc burden shilis to the oppoiiciit to rebut the prima facie showing ( Bethlchem Steel Corn. v. S 0 I ow, L 51 N.Y.2d 870, 872 19891 ). In opposing such a motion, the party must lay barc its evidentiary prool.. "Mere concliisory asscrtions, dcvoid orcvideiitiary facts, arc insufhicnt [or this purpose, as is rcliance ~ i p o n surinise, conjecture, or speculation" ( Moryan v. New York 'I'clcphone, 220 A,D.2d 728, 729 12d Dept. 19C)Sj; Zuckernian v. City of Ncw York, 49 N.Y.2d 557, 562 [I9801 ). '1'11e Court notes that both parties have indicated that discovery has bceti complctcd. 'I'hcrcfore, bascd on the aforcmcntioned, it is clear that plainti1.f firm has failed to mect its prima facie burctcn oi'demonstrating that it is owed money from dcf'cndant, and is eiititlcd to judgment as 8 [* 10] b a matter of law, In accordance with thc foregoing, it is hcrcby OIiDER1 :D that plaiiililTs motion fbr suiiiiiiary judgmcnt is dciiicd aiid it is fLirthcr ORIIERED that dcfkndant s cross-motion for suiiiiiiary judgmcnt dismissing the complaint is gratitcd and tlic complaint is hcreby disiiiisscd, it is hrthcr 0III)I-XI 3 that tlic C lcrk cnter judgment accordingly. I his constitutcs thc ciccision and order ofthc Court. LIA I ED: Novcnibcr 27, 20 13 J.S.C. i J FILE .......... - - ... ...*....~. 9 3 *

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