Hoffman v Davis

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Hoffman v Davis 2013 NY Slip Op 33383(U) December 4, 2013 Supreme Court, New York County Docket Number: 100208/12 Judge: Paul Wooten 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. [* 1] , SCANNED ON 11212014 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY PART 7 HON. PAUL WOOTEN Justice ARBARA T. HOFFMAN, INDEX NO. 100208/12 MOTION SEQ. NO. 001 Plaintiff, -V- SHARYL R. DAVIS, Defendant. - The following papers were read on this motion by defendant to dismiss and cross-motion by plaintiff. PAPERS NUMBERED otice of Motion/ Order to Show Cause wering Affidavits - Affidavits - Exhibits .., - Exhibits (Memo) Replying Affidavits (Reply Memo) Cross-Motion: Barbara T. Hoffman (plaintiff) instituted the herein against her former client Sharyl Davis (defendant) for legal fees for services provided in accordance with an alleged retainer agreement. Defendant moves to dismiss the complaint, pursuant to CPLR 321 l(a)(8), ack of peCs"iidi jurisciictiuii. Aiso Lerure [tie Cvurt is a c;ross-rrwiiorr by piainiiif pursuani io LR 321 l(b) and (c) and CPLR 3212 for breach of the retainer agreement, and also an ccount stated for legal fees and costs and disbursements. Plaintiff also seeks in her crosstion pre-judgment interest pursuant CPLR 5001. Discovery in this action has not mmenced and the Note of Issue has not been filed. / BACKGROUND Plaintiff states that she is a prominent arts and cultural heritage lawyer whose office is ated in New York County. Plaintiff alleges that in or about January of 2005, she and the defendant entered into a written retainer agreement wherein plaintiff agreed to represent the defendant at a discounted rate, based on prompt payment, in connection with a work of art by Page 1 of 12 DEC - 9 2013 NEW YORK COUNTY CLERK'S OFFWE [* 2] Camille Pissarro, entitled Le Marche (Le Marche matter). Le Marche had been withdrawn from n auction at Sotheby s in 2003 at the request of the United States Government which claimed that the artwork had been stolen in 1981 from a regional French museum by Emil Guelton ffidavit of Plaintiff in Opposition to Defendant s Motion to Dismiss, at 7 3). Defendant s ation was a good faith purchaser of Le Marche in 1984 from an art dealer in San Antonio, and defendant acquired the artwork pursuant to a divorce and division of assets in or 0 (id.). Plaintiff represented defendant in litigation the Southern District of New York ich included motion practice, a six-day jury trial, an interlocutory appeal and a regular appeal e Second Circuit Court of Appeals, as well as a petition for reconsideration and rehearing. proffers that she spent hundreds of hours on the Le Marche matter. Plaintiff states that eed that she would not charge the defendant for her time for legal services for the mary judgment motion she made in 2008, unless she were successful, on condition that the ndant pay her outstanding invoice promptly (id. at 7 13). Plaintiff further states that contrary to defendant s arguments, she did inform defendant rights to dispute her legal fees, in compliance with the requirements of 22 NYCRR 9 5 and more than one year has passed since defendant was informed. From the time of her ent plaintiff proffers that she has sent invoices to defendant which were paid, based e original retainer entered into prior to the commencement of the litigation regarding Le h e , Plaintiff further proffers that the costs and disbursements were presented with the voices, documenting the expenses at the time the invoices were presented, and that ant kept the invoices and did not object to them. Defendant however, currently owes iff a total of $43,394.50 in unreimbursed costs and disbursements, and $130,404.00 for fees as per plaintiff s hourly rate and the modified retainer letter dated February 5, 2007. Plaintiff commenced this action by the of a Summons and Complaint on January 6, Page2of 12 / [* 3] 2012, seeking legal fees for services provided under theories of account stated and breach of contract. Defendant filed her answer on or about March 26, 2012, wherein she raised as the (1) first affirmative defense a lack of personal jurisdiction on the basis that service of process was ot properly effected under CPLR 308(2), as well as the plaintiff's failure to timely file the avit of service with the Clerk of the Court, also pursuant to CPLR 308(2). The answer also raises seven other affirmative defenses for: (2) plaintiff's failure to notify defendant of her right to fee arbitration by service of a written notice pursuant to Part 137 of the Rules of the Chief dministrator of the Courts; (3) plaintiff's failure to provide defendant with a written retainer agreement in compliance with NYCRR 22 § 1215; (4) the contract between the parties is void as it violates Banking Law $5 14-a and 5-501 and 5-51 1 of the General Obligations Law ecause plaintiff is charged interest on the unpaid balance at the rate of 18% per annum which xceeds the 16% maximum rate; (5) plaintiff may not collect pre-judgment interest from the defendant on the unpaid balance because there is no written retainer agreement signed by the efendant agreeing to the payment of interest; (6) plaintiff should not be able to collect an hourly fee from defendant because she is quiltv of fraud. duress.6isconduct and overreachins. plaintiff engaged in duress of defendant in order to secure payment of improper and cessive fees; and (8) plaintiff is not entitled to the legal fees that she is seeking as she is not killed trial attorney. Defendant filed her answer and now moves to dismiss the complaint, pursuant to CPLR 21 l(a)(8), for lack of personal jurisdiction. Also before the Court is a cross-motion by plaintiff ursuant to CPLR 321 1(b) and (c) and CPLR 3212 for breach of the retainer agreement, and an account stated for legal fees and costs and disbursements. Plaintiff also seeks in her oss-motion pre-judgment interest pursuant CPLR 5001. Page3of 12 [* 4] STANDARDS OF LAW Dismiss When determining a CPLR 3211(a) motion, we liberally construe the complaint and ccept as true the facts alleged in the complaint and any submissions in opposition to the missal motion (51I W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 . see Leon v Martinez, 84 NY2d 83, 87 [ I 9941; Sokoloff v Harriman Estates Dev. Corp., d 409 [2001]; Wieder v Skala, 80 NY2d 628 [1992]). To defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only assert facts of an evidentiary nature that fits within any cognizable legal theory (see Bonnie & Co. Fashions v Bankers Trust Co., 262 AD2d 188 [Ist Dept 19991). Further, the movant has the burden of demonstrating that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the g states no legally cognizable cause of action (see Guggenheimer v Ginzburg, 43 NY2d Chase Manhattan Bank, 300 AD2d 226 [Ist Dept 20021). ummary judgment is a drastic remedy that should be aranted only if no triable isslips nf fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as of law, tendering sufficient evidence in admissible form demonstrating the absence of issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [ I 9851; 212[b]). A failure to make such a showing requires denial of the motion, regardless of iciency of the opposing papers (see Smalls v AJl Indus. lnc., 10 NY3d 733, 735 [2008]). a prima facie showing has been made, however, the burdeyshifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of Page 4 of 12 [* 5] material issues of fact that require a trial for resolution (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212[b]). When deciding a summary judgment motion, the Court s role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Cenfury-fox f i l m Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [ I 978)) DISCUSSION / Defendant moves to dismiss the complaint for lack of personal jurisdiction on the basis t service was not properly effectuated pursuant to CPLR 308(2). Specifically, the affidavit of ervice of plaintiff s process server states that on January 17. 2012 defendant senec! 5 y uitable age and discretion by leaving a copy of the summons and complaint with Richard [ ] enant) at 317 N. Bluff, Anthony, Kansas, which the affidavit of service states is defendant s actual place of business (Notice of Motion, exhibit 6). The affidavit of service further indicates that service was completed when a copy of the summons and complaint were mailed to fendant at the same address of delivery, 317 N. Bluff, Anthony, Kansas, on January 17, 2012 .). Defendant maintains that serving one of her temporary rental tenants in a small home she operates is not sufficient for suitable age and discretion as the tenant is not her employee nor as he authorized to accept service on her behalf. Further, defendant proffers that the affidavit service was not filed with the Clerk of the Court until February 14, 2012, twenty-eight days Page5of 12 [* 6] / from the delivery and mailing, which is more than the twenty day period proscribed in CPLR 08(2), and as such renders service of process deficient. In opposition plaintiff avers that this is a frivolous motion and that the address in Kansas proper for service as it is the last known address that she has for defendant. Plaintiff states at this is the address she used to send defendant invoices when she represented defendant, none of them were returned as undeliverable. Further, the delay in filing the proof of e was due to the process server timely filing the affidavit of service erroneously in Nassau County. Plaintiff maintains that she was not aware of the mistake until she was preparing a tion for a default judgment, and subsequently the process severer re-served defendant ersonally on April 4, 2012, and the affidavit of service was timely filed in New York County In his Affirmation Martin S. Kera, Esq. (Kera), defendant s counsel, states that plaintiff s a lot of unnecessary work. Specifically, when Kera first came into the case he proffers t he offered to waive any objection to service of process in exchange for an extension of e to answer, which plaintiff first accepted and then changed her mind (Kera Affirmation in osition to Plaintiff s Cross-Motion for Summary Judgment, 5). However, defendant does state in opposition that the personal service of the summons and complaint on defendant on ril 5 , 2012 is defective or improper. Firstly, plaintiff s [dlelay in filing proof of service under CPLR 308 is merely a procedural / larity, not jurisdictional, and may be corrected nunc pro tunc by the court . . . especially in absence of a statement by defendant categorically denying that he ever received papers caster v Kindor, 98 AD2d 300, 306 [Ist Dept 19841, affd 65 NY2d 804 [I9851 [internal tions omitted]). This procedural irregularity merely postpones defendant s time to answer, nd because the defendant already served her answer on or about March 26, 2012, the Court it appropriate to deem the affidavit of service filed nunc pro tunc (see Bell v Bell, Kalnich, Page 6 of 12 [* 7] Klee?!c Green, 246 AD2d 442 [ 1st Dept 19981). Defendant submits an affidavit in support of her motion admitting that proper service of summons and complaint was made on April 4, 2012. As such, defendant s motion to nal jurisdiction is denied in light of the fact that she was personally . Any argument that the prior service was improper is deemed moot. Plaintiff cross-moves pursuant to CPLR 321 l(b) and (c) and CPLR 3212 for breach of and also an account stated for legal fees with pre-judgment interests as as costs and disbursements. Plaintiff also seeks in her cross-motion pre-judgment interest pursuant CPLR 5001. CPLR 321 1(b) CPLR 321 1(b) states as follows: Motion to dismiss defense. A party may move for ent dismissing one or more defenses, on the ground that the defense is not stated or has merit. Defendant asserts eight affirmative defenses in her Verified Answer as detailed e. The first affirmative defense of lack of personal jurisdiction is dismissed as discussed e in defendant s motion to dismiss pursuant to CPLR 321 1(a)@). The Court notes that efendant essentially opposes plaintiff s amended cross-motion on the grounds that, inter alia, otion is premature as discovery has not yet commenced and that defendant did dispute laintiff s invoices. However, defendant does not specifically oppose or proffer arguments in sition to plaintiff s motion to dismiss the affirmative defenses. As this portion of plaintiff s s-motion is granted without opposition, and defendant s affirmative defenses are dismissed. 11. CPLR 321 1(c) Subdivision (c) of CPLR 321 1 allows any court to treat a motion to dismiss as one for mary judgment, yet it requires that notice must be given to the parties of its intention to do so (see Huggins v Whitney, 239 AD2d 174 [ 1st Dept. 19971; Hendrickson v Philbor Motors, lnc., Page 7 of 12 [* 8] 102 AD3d 251, 258 [2d Dept 20121). However, there are three exceptions to the notice requirement, one of which is when CPLR 321 1(c) treatment is specifically requested not by one party, but by all of the parties (see Four Seasons Hotels v Vinnik, 127 AD2d at 320-321, 515 N.Y.S.2d I ) , or is at least requested by the same party that is aggrieved by the summary judgment determination (see Wein v City of New York, 36 NY2d 610, 620-621, 370 N.Y.S.2d 550, 331 N.E.2d 514) (Henrickson, 102 AD3d at 258). Here, only plaintiff seeks conversion of the motion to dismiss as one for summary judgment. Furthermore, it cannot be said that in this pre-discovery status of the case that both parties have revealed their proof and clearly charted a summary judgment course (Huggins, 238 AD2d at 174). As such, the Court declines to treat the motion to dismiss as one for summary judgment and declines to order an immediate trial, and accordingly denies this portion of plaintiff s cross-motion. Ill. CPLR 3212 Plaintiff cross-moves for partial summary judgment, pursuant to CPLR 3212, for judgment in her favor for defendant s breach of the retainer agreement, an account stated for legal fees with pre-judgment interests as well as costs and disbupements. Plaintiff avers in her affidavit that on December 10, 2004 she sent to defendant and defendant s husband the retainer letter, and on February 21, 2005 she sent it again after not receiving a signed copy from defendant (Affidavit of Plaintiff in Support of Amended Cross-Motion for Summary Judgment at 1 15), and she attaches the unsigned retainer agreement (id. exhibit 5 ) as well at as an amended retainer letter dated February 5, 2007 (id. at exhibit 7). Although the retainer letter was never signed by the defendant, on February 21, 2005 plaintiff states that she received a $500.00 check from the defendant, as well as a check for $2,400.00 (id. at 15, 16). Plaintiff states that she informed defendant that the discounted rate she extended to her, a billable-hour rate at $325.00 per hour, was contingent on prompt payment within 15 days and may be lost if payment was not made (id. at 7 21). This language was located at the lower part Page 8 of 12 [* 9] of the invoice (id.). Plaintiff acknowledges that she agreed she would not charge the defendant for her time for legal services for the summary judgment motion she made in 2008, unless she , ' were successful, on condition that the defendant pay her outstanding invoice promptly, yet this condition was violated. dditionally, plaintiff maintains that defendant not only kept the invoices without protest, made partial payments and has admitted that she received the invoices. Specifically, in 2008 defendant acknowledged that she owed legal fees and costs and disbursements as set forth in the July 31, 2008 invoice, by her payment of $10,000.00 on September 18, 2008 aintiff Memorandum of Law at pg. 28). In opposition defendant proffers that plaintiff's cross-motion is premature as no overy has been conducted and there are triable issues of fact which require denial of the n. Specifically defendant argues that there is no written or signed retainer agreement between the parties, even though plaintiff references a signed agreement in paragraph 14 of r affidavit. Also, defendant points to paragraph 16 of the plaintiff's affidavit wherein she that defendant did not return a signed copy of the retainer agreement, and proffers that a triable issue of fact concerning the terms of the retainer agreement. Defendant maintains that there was a contingency fee agreement between the parties from at least tember of 2008, and notwithstanding this agreement, plaintiff billed the defendant on an rly basis (Affidavit of Defendant in Opposition to Plaintiff's Amended Cross-Motion, 7 3[c]). r, defendant states that plaintiff is not entitled to an account stated since she objected to iff's bills and attaches various emails and letters wherein the parties discuss the legal fees nding, whether it was agreed that the work will be done on a contingency basis and wherein defendant had disputed plaintiff's invoices and the plaintiff attempts to settle /- outstanding invoices where the defendant raised an objection (id. at 7 4 and exhibit I). There is also a dispute between the parties as to whether after September 9, 2008 the Page 9 of 12 [* 10] parties agreed the Le Marche matter was done on a contingency basis and whether defendant as still required to pay all of the costs and disbursements. Although plaintiff does submit ocumentation wherein defendant paid certain invoices without objection, there is ample dence before the Court that defendant had disputed plaintiff s invoices as well as her hourly , as she believed that the matter was taken on contingency. Additionally, there is no signed etainer agreement submitted by the parties. 22 NYCRR 1215.1, otherwise known as the letter of engagement rule, was promulgated by joint order of the Appellate Divisions, and applies to all civil actions where the amount in controversy is $3,000 or more. The rule requires attorneys to provide all clients with a written letter of engagement explaining the scope of the legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute under Part 137 of the Rules of the Chief Administrator (Seth Rubenstein, P. C. v Ganea, 41 AD3d 54, 60 [2d Dept 20071; 22 NYCRR 1215.flbI). owever, [tlhe language of 22 NYCRR 1215.1 contains no express penalty for noncompliance nor is it underscored by a specific disciplinary rule (Seth Rubenstein, P.C., 41 AD3d at 601; cf 22 NYCRR 1400.3). The fact that plaintiff failed to secure a written retainer agreement or letter of ngagement from a client in a non-matrimonial action does not preclude her from seeking to cover her fees in quantum meruit the fair and reasonable value of services rendered on ehalf of defendant prior to her discharge as counsel (Seth Rubenstein, P.C., 41 AD3d at 64, iting Campagnola v Huholland, Minion & Roe, 76 NY2d 38 [1990]; see also In re Estate of Feroleto, 6 Misc3d 680, 684, 2004 NY Slip Op 24495 [Sur Ct, Bronx County 20041 [court warded attorney who did not secure a signed retainer agreement an award of attorneys fees on a quantum meruit basis]). [Plaintiff], as the attorney who failed to properly document the fee agreement in writing as required by 22 NYCRR 1215.1, bears the burden of establishing that the terms of the alleged fee agreement were fair, fully understood, and agreed to by [the efendant] (Seth Rubenstein, P. C.,41 AD3d at 63). Page 10 of 12 [* 11] , disputed some of plaintiff s invoices (see Abbott, Duncan & Weiner v Ragusa, 214 AD2d 412, 13 [Ist Dept 19951 [ An account stated is an account, balanced and rendered, with an assent to the balance either express or implied yet there can be no account stated if there is any ispute about the account], citing Interman Indus. Prods. v R.S.M. Necfron Power, 37 NY2d 51, 153 [1975]; Herrick, feinstein LLP v Sfamm, 297 AD2d 477, 478 [ I s t Dept 20021 [ the very meaning of an account stated is that the parties have come together and agreed upon the alance of the indebtedness... ]). Furthermore, a cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract (see Ross v Sherman, 57 AD3d 758 [2d Dept 20081). Turning to plaintiff s cause of action for breach of contract, an unsigned agreement may be enforceable, provided there is objective evidence establishing that the parties intended to be bound (Nores v Lower E. Side Sew. Ctr., Inc., 4 NY3d 363, 369 [2005]; see also Brighton Inv., Lfd. v Har-Zvi, 88 AD3d 1220, 1222 [3d Dept 201 I ] [ an exchange of e-mails may constitute an enforceable contract, even if a party subsequently fails to sign implementing documents ]). At this pre-discovery stage, there are issues of fact as to the exact terms which govern the tionship between the parties and as such summary judgment is inappropriate at this cture. Accordingly, that portion of her cross-motion is denied. Furthermore, in light of the /- regoing, it follows that plaintiff s request for pre-judgment interest is also denied. The Court has considered the parties remaining arguments and finds them to be unavailing. CONCLUSION Accordingly, it is ORDERED that defendant Sharyl R. Davis motion to dismiss the complaint, pursuant to 321 l(a)(8), for lack of personal jurisdiction is denied as moot; and it is further, Page11 of 12 [* 12] ORDERED that the portion of plaintiff's cross-motion pursuant to CPLR 321 l(b) is ition, and the defendant's affirmative defenses are hereby dismissed; and RED that the portions of plaintiff's cross-motion pursuant to CPLR 321 1(c) and e denied; and it is further, RED that plaintiff is directed to serve a copy of this order with notice of entry upon ies are directed to appear for a Preliminary Conference at 1 1 :00 ry 15,2014 at 60 Centre Street, Room 341,Part 7. nstitutes the Decision and Order of the Court. AL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: 1- 1 DO NOT POST REFERENCE !LED DEC - 9 2013 NEW YORK mum CLERK'S om= Page 12 of 12

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