Jeffrey M. Rosenblum, P.C. v Casano
Annotate this CaseDecided on November 19, 2014
District Court of Nassau County, First District
Jeffrey M. Rosenblum, P.C., Plaintiff(s)
against
Linda Casano, Defendant(s).
CV-005942-14
Catalano, Gallardo & Petropoulos, LLP, Attorneys for Plaintiff, 100 Jericho Quadrangle, Suite 326, Jericho, New York 11753, 516-931-1800; Paykin, Richland & Falkowski, Attorneys for Defendant, 591 Stewart Avenue, Suite 400, Garden City, New York 11530, 212-561-5599.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3
submitted on this Motion on October 1, 2014
papers numbered
Amended Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents
Opposition to Motion2
Reply Papers to Motion3
Before the court is plaintiff's motion to dismiss defendant's five (5) counterclaims. Said motion is decided as provided herein.
In her Verified Answer with Counterclaims (Plaintiff's Exhibit B), defendant sets forth [*2]and classifies each of the five (5) counterclaims raised therein. They are designated as Breach of Contract (First and Second Counterclaims), Unjust Enrichment (Third Counterclaim), Declaratory Judgment (Fourth Counterclaim), and Attorney Malpractice (Fifth Counterclaim).
Initially, plaintiff's counsel presses two arguments for dismissal of the first four counterclaims. First, she argues that pursuant to CPLR 3211(a)(2), this court lacks subject matter jurisdiction because "the monetary jurisdictional limit of the District Court is $15,000," which these counterclaims exceed (Affirmation in Support, ¶ 22). To the contrary, however, this court "shall have jurisdiction of counterclaims ... for money only, without regard to amount" (UDCA §208[b]). Accordingly, plaintiff's argument characterizing the amount sought by defendant's counterclaims as exceeding statutory authority, is rejected. Therefore, its requests for dismissal on this basis are denied.
Plaintiff's second argument for dismissal of the first four counterclaims is premised upon the notion that this court lacks the equitable jurisdiction necessary to entertain the same. However, it is clear from review of defendant's Answer that the first two counterclaims are based upon a theory of "Breach of Contract" (Defendant's Exhibit E), and that they address two (2) written contractual retainer agreements between the parties. Although plaintiff attempts to characterize said claims as equitable in nature, defendant has clearly pled a different, cognizable legal theory. Accordingly, plaintiff's request for dismissal of the first two counterclaims, as based upon equity considerations, is denied.
The third counterclaim is clearly marked as one seeking relief from plaintiff's unjust enrichment. " The theory of unjust enrichment lies as a quasi-contract claim'" and contemplates "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142, 879 NYS2d 355, 907 NE2d 268 [2009], quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572, 807 NYS2d 583, 841 NE2d 742 [2005])" (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). "The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Greenfield M.D., P.C. v Long Beach Imaging Holdings, LLC, 114 AD3d 888, 889, citing Paramount Film Distribution Corporation v State of New York, 30 NY2d 415, 421 [1972] [remainder of citation omitted]).
"Although a claim for unjust enrichment involves equitable considerations', it is essentially a claim for a money judgment which is covered within the jurisdictional boundaries contemplated for the Civil Court. A court, of course, has the inherent right to take equitable considerations into account (Dobbs, Remedies, § 2.1, p 28), and since they are merely reflections of fairness, no court, unless expressly limited by a statute, should deprive itself of the capacity to take them into account where the suit involves money damages only (Fiona Press, Inc. v Hewig & Marvic, Inc., 122 Misc 2d 680-681 [Civil Court, NY County 1984], emphasis added). Notably, "[t]he [New York City Civil Court Act ("NYCCCA")] is the original of the uniform acts. The second of them, also effective on September 1, 1963, is the Uniform District Court Act [*3](UDCA), which was modeled on and is in many instances identical to the NYCCCA" ( David D. Siegel, General Commentary on the Lower Court Acts (NYCCCA, UDCA, UCCA and UJCA) and Their Background, McKinney's Cons Laws of NY, Book 29A, p 9 [1989 ed]).
Although the counterclaim for unjust enrichment at bar is equitable in nature, the remedy it seeks, a money judgment, is well within this court's jurisdiction. Accordingly, that portion of the instant motion seeking to dismiss defendant's third counterclaim for unjust enrichment, based upon its equitable nature, is denied.
It is uncontroverted that defendant's fourth counterclaim seeks a declaratory judgment. Unlike the instance noted above concerning money judgments, said fourth counterclaim is exclusively equitable in nature. "The District Court is a court of limited jurisdiction and hence possesses no equity jurisdiction except as specifically conferred upon it by statute (NY Const, art VI, §15; Petrides v Park Hill Rest., 265 App Div 509)" (Mormon v Acura of Valley Stream, 190 Misc 2d 697, 698 [App Term, 2d Dept 2001]). Accordingly, plaintiff's request for dismissal of said fourth counterclaim is granted, and the same is dismissed.
Lastly, plaintiff seeks dismissal of the fifth and final counterclaim on two grounds. The first is res judicata and identity of issues with the earlier arbitration proceeding herein. In this regard, it is uncontroverted that this case was previously arbitrated pursuant to 22 NYCRR Part 137, that said arbitration resulted in a decision in defendant's favor and that plaintiff timely commenced a trial de novo pursuant to 22 NYCRR 137.8. Given same, the arguments proferred by plaintiff to dismiss defendant's fifth counterclaim are inapplicable to the present case.
The cases cited by plaintiff, Wallenstein v Cohen, 45 AD3d 674 (2d Dept 2007) and Altamore v Friedman, 193 AD2d 240 (2d Dept 1993), involved different arbitration statutes. Moreover, the arbitration statute in Wallerstein was repealed on January 1, 2002, and the Altamore case was specifically premised upon the binding nature of the arbitration involved in that proceeding. Unlike either of these cases, the arbitration provision used herein, explicitly provides a non-prevailing party with the opportunity to elect to proceed to a trial de novo, and plaintiff having done so, defendant can pursue her counterclaim. Therefore, that portion of plaintiff's motion seeking dismissal of defendant's fifth counterclaim, on res judicata grounds, is denied.
Plaintiff also seeks dismissal of said fifth counterclaim based upon an alleged failure of defendant to state a claim. In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged as true and make a determination as to whether the facts alleged are within any cognizable legal theory (see Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 [2d Dept 2007]). The non-moving party is afforded "the benefit of every possible inference" (see Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326 [2002], quoting Leon v Martinez, 84 NY2d 83, 87 [1994]). Therefore, if the pleading contains factual allegations which taken together manifest any cause of action cognizable at law, the motion must be denied (see Natural Organics, Inc. v Smith, 38 AD3d 628 [2d Dept 2007]).
In a legal malpractice action, the "plaintiff must prove (1) the negligence of the attorney, (2) that the negligence was the proximate cause of the loss sustained, and (3) proof of actual damages. Plaintiff must also prove that she would have succeeded on the merits of the underlying action but for' the attorney's negligence" (Tilton v Trezza, 2006 NY Slip Op 50867[U] [Sup Ct, Nassau Cty 2006], citing Davis v Klein, 88 NY2d 1008 [1996]). Review of ¶¶ 52-54 of defendant's answer (Plaintiff's Exhibit B), reveals that the above requisites for a claim sounding in legal malpractice have been satisfied. Accordingly, plaintiff's request for dismissal of defendant's fifth counterclaim, for failure to state a cause of action, is denied.
In summary, plaintiff's motion is granted, only to the extent that defendant's fourth counterclaim, seeking declaratory judgment, is dismissed. Said motion is otherwise denied as to counterclaims numbered 1, 2, 3 and 5.
The foregoing constitutes the Decision and Order of the court.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:November 19, 2014
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