Jaffe Ross & Light, LLP v Mann

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Jaffe Ross & Light, LLP v Mann 2013 NY Slip Op 32212(U) September 16, 2013 Supreme Court, New York County Docket Number: 158984/2012 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/17/2013 1] INDEX NO. 158984/2012 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 09/17/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART _ __ CYNTHlA S. KERN PRESENT: ( , , INDEX NO. _ _ _ __ vs MOTION DATE _ _ __ MANN, EZRA I Index Number: 158984/2012 JAFFE ROSS & LIGHT, LLP MOTION SEQ. NO. _ __ Sequence Number: 002 REARGUE / RECONSIDER ... The following papers, numbered 1 to _ _ , were read on this motion tolfor _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of MotionlOrder to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _..,....-_ _ _ _ _ _ _ _ _ _ __ I No(s).,_ _ _ _ __ I No(s). _ _ _ _ __ I No(s). _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w (,) i= U) ::J .., '0 'I- o w a:: a:: \s decided in accordance with the annexed decision. w u.. w a:: .. !!!. )-- ..J ..J ::J u.. Z 0 U) I- c{ (,) w a:: W z a:: W ~ U) - (!) ~ 0 W ..J U) ..J c{ 0 Z W J: (,) u.. o Ii= a:: o 0 :!l u.. __~e--L.i<~___, J.S.C. 1. CHECK ONE: .................................................................. ¢.. 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED 0 GRANTED 0 DENIED 0 SETTLE ORDER DDO NOT POST CYNTHlA S. KERN V"l J.s.c. (I'>..J NON-FINAL DISPOSITION o GRANTED IN PART 0 o SUBMIT ORDER o FIDUCIARY APPOINTMENT 0 OTHER REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ______________________________________________________ ----------------x JAFFE ROSS & LIGHT, LLP, Plaintiff, IndeX No. 158984/2012 DECISION/ORDER -against- EZRA MANN, Defendant. ______________________________________________________ ----------------x HON. CYNTHIA S. KERN, J.S.c. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ________________________________________ Papers Numbered Notice of Motion and Affidavits Annexed.................................... Answering Affidavits................... ..... .......... ........... ............... .......... Cross-Motion and Affidavits Annexed .......................................... . Answering Affidavits to Cross-Motion .......................................... . Replying Affidavits................... .................... ................ ..... .......... Exhibits... ...... ............. ................ ..... ..... ..... ..... ...... ..... ......... ........ .1 2 '3 4 I Plaintiff commenced the instant action to recover allegedly outstanding legal fees in I connection with its representation of defendant in two separate lawsuits. By order dated May 9, 2013, this court denied plaintiffs motion and defendant's cross-motion for summary judgment. " I Defendant now moves pursuant to CPLR § 2221 for an order granting reargument of his crossmotion and upon reargument, granting him summary judgment and dismissing this action in its entirety. For the reasons set forth below, defendant's motion for reargument is granted and, upon I I reargument, defendant's cross-motion for summary judgment is granted'in part and denied in part. The relevant facts are as follows. On or about June 1, 2006, def~ndant Ezra Mann [* 3] ("Mann") retained plaintiff pursuant to a Retainer Agreement (the "Retai~er Agre~ment") in connection with a lawsuit entitled Kaygreen Realty Co. LLC v. Belmont Furniture, Inc .. 1 Pursuant to the Retainer Agreement, plaintiff represented Mann as an ingividual and not the corporate entity. Thereafter, plaintiff alleges that defendant and it entere1d into two oral agreements for plaintiff to represent defendant in two other actions. The first was entitled Kaygreen Realty Co., LLC v. Ezra Mann (the "Queens Action") and wa~ related to the action in the Retainer Agreement. The second action was completely unrelated ~d was entitled, 'I Furniture World ofJerome Avenue, Inc. v. Luna Bros. Realty Corp. (the: "Bronx Action"). It is undisputed that no retainer agreement was ever made between the partie~ for the Bronx Action. Plaintiff allegedly performed legal services, advanced costs and ~ncurred expenses on 1 behalf of Mann pursuant to the oral agreements from June 1, 2006 through October 7, 2011. Specifically, plaintiff alleges in its complaint that Mann owes it $21,107.54 for its work on the Queens Action and $27,523.90 for its work on the Bronx Action. On or about December 6,2012, plaintiff brought the instant acti9n to collect the allegedly outstanding fees. Thereafter, plaintiff moved for summary judgment on"the ground that defendant failed to sufficiently object to the itemized invoices annexed to its verified complaint. :1 Defendant cross-moved for summary judgment dismissing the action on the ground he was not served properly as he, an Orthodox Jew, was served on the Sabbath. Additionally, defendant argued that plaintiffs motion should be denied as he had already paid plaintiff for its work in I relation to the Queens Action, the corporate defendant, not Mann, was the client in the Bronx Action and that plaintiff agreed to take the Bronx Action on a contingency basis . .i By order dated May 9, 2013, this court denied both motions (the ,"May Decision"). As an 2 [* 4] initial matter, this court found that service of process on defendant was n~t defective. Additionally, in denying plaintiffs motion for summary judgment, this c~urt held'that plaintiff was not entitled to summary judgment pursuant to CPLR § 3016 as defendant had asserted a defense for non-payment that went to the entirety of the parties' dealings and as such was not required to set forth specific denials to plaintiffs invoices in his answer., I Defendant now moves to reargue this court's May Decision on the ground that this court ., overlooked the portion of defendant's motion seeking summary judgment on the basis that any agreement with plaintiff for the Bronx Action was with the corporation, .,not Mann individually . On a motion for leave to reargue, the movant must allege that the court overlooked or 1 misapprehended matters of fact or law. CPLR § 2221(d)(2). Here, defendant alleges that the I court overlooked the portion of his cross-motion seeking summary judg~ent on the ground that plaintiffs agreement to provide legal services for the Bronx Action was;with Furniture World of Jerome A venue, Inc., not defendant. As the court only discussed this issue in relation to defendant's opposition to plaintiffs motion for summary judgment in its prior decision, 1 reargument is granted. Upon reargument, the court reverses its prior detennination and for the reasons set forth below, defendant's motion for summary judgment is granted in part and denied .,, in part. On a motion for summary judgment, the movant bears the burde.n of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See 'Alvarez v. Prospect , Hasp., 68 N. Y.2d 320, 324 (1986). Once the movant establishes a prim?!acie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary I proof in admissi ble fonn sufficient to require a trial of material questions of fact on which he 3 [* 5] J rests his claim." See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact. Id. In the present case, as an initial matter, defendant has failed to demonstrate his entitlement to summary judgment as a matter of law dismissing plaintiff s complaint as it pertains to the Queens Action. Defendant's only arguments in support of the motion to dismiss " ; in relation to the Queens action is that he already paid plaintiff in full for the Queens Action and I " plaintiff misapplied those payments to the fees incurred in the Bronx Ac~ion. However, defendant fails to present sufficient evidence on this motion for the co~ to ascertain whether any payments were indeed misapplied by plaintiff. Accordingly, as defendant concedes that he 'J agreed to be responsible for the payment of the fees in the Queens Actio.n and has failed to . demonstrate that those fees have been paid in full, summary judgment is not warranted as there , remains a disputed material issue of fact as to whether defendant has funy paid plaintiff for the legal fees stemming from the Queens Action. , However, unlike the Queens Action, defendant has established that plaintiff cannot J recover against him individually as a matter of law for any fees stemming from the Bronx Action. : Pursuant to 22 NYCRR § 1215.1, "an attorney who undertakes to repres'ent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a 1 written letter of engagement [or enter into a written retainer agreement] before commencing the representation, or within a reasonable time thereafter." An attorney's failure to comply with the .,I requirements of22 NYCRR § 1215.1, precludes him from recovering any unpaid legal fees under , breach of contract. See, e.g., Seth Rubinstein, P. C. v. Ganea, 41 A.D.3d 54 (2 nd Dept 2007). , However, an attorney's "failure to comply with the letter of engagement rule does not preclude it 4 [* 6] from seeking recovery of legal fees under such theories as services rendered, quantum meruit, and account stated." Roth Law Firm, PLLC v. Sands, 82 AD.3d 675, 67.6 (I sl Dept 2011); see also Nabi v. Sells, 70 A.D.3d 252 (I sl Dept 2009). In order to recover under these alternative theories, though, an attorney must first I . establish some sort of privity between him and the defendant. For example, in order to recover in quantum meruit, the attorney has the burden of establishing, among other things ':the 1 ¢ I performance of services in good faith, acceptance of the services by the person to whom they are I ¢ rendered, and expectation of compensation therefor." Feedman v. Pearlman, 271 A.D.2d 301, I 304 (lSI Dept 2000); see also Rowley, Forrest, O'Donnell & Beaumont, f.C v. Beechnut Nutrition Corp., 55 AD.3d 982, 983 (3 rd Dept 2008). Additionally, "[a]n account stated is an agreement between the parties to an account based upon prior transactions between them." Shea ., & Gould v. Burr, 194 AD.2d 369, 370 (I sl Dept 1993) (emphasis added~. Here, as an initial matter, plaintiff cannot maintain a claim against defendant for breach of contract as it is undisputed that the parties never entered into a written retainer agreement for the Bronx Action. While plaintiff frames its claim against defendant as one for breach of I I i contract, it concedes that it never entered into a written retainer agreement with defendant for the Bronx Action. Accordingly, plaintiff cannot maintain a breach of contract claim against defendant for the Bronx Action as a matter of law. I Additionally, plaintiff cannot maintain a claim against defendant, under quantum meruit , I as its services in the Bronx Action were not rendered for defendant but were rendered for and accepted by the corporation. It is undisputed that defendant was not a named party in the Bronx I .. .j Acton but that the lawsuit was brought on behalf of the corporation. Accordingly, to the extent 5 [* 7] that any services were rendered, they were rendered on behalf of and accepted by the corporation. As such, plaintiff could have no expectation of compensation from defendant for its legal fees. To the extent that defendant argues that plaintiff orally agreed to be individually responsible for the payment of the fees, that argument is barred by the statute of frauds. ~ See General Obligations Law § 5-701. Additionally, plaintiff cannot establish a valid account stated against defendant for the Bronx Action as the invoices are addressed to him as a corporate officer only. The invoices ;1 annexed to plaintiffs complaint pertaining to the Bronx Action are addressed as follows: "Mr. Ezra Mann c/o Furniture Zone." This is insufficient to have an account stated claim against defendant as the fact that they were sent "c/o Furniture Zone" demonstrates that they were addressed to him as a corporate officer, rather than as an individual who: may have agreed to be personally responsible for the legal fees. See Roth Law Firm, 82 A.D.3d at 676. i I Based on the foregoing, upon reargument, defendant's motion for summary judgment is granted to the extent that plaintiffs claim against defendant for any outstanding legal fees 1 incurred in the Bronx Action is hereby dismissed. This constitutes the ~ecision and order of the court. Enter: _ _ _--+~"}<.~----- J.S.c. CYNTHIA S. KERN , -oJ·s.c. 6

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