Bonfiglio & Asterita, LLC v Reyes

[*1] Bonfiglio & Asterita, LLC v Reyes 2019 NY Slip Op 52128(U) Decided on December 20, 2019 Civil Court Of The City Of New York, Richmond County Campanelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2019
Civil Court of the City of New York, Richmond County

Bonfiglio & Asterita, LLC, Plaintiff,

against

Josue Reyes, Defendant.



CV-005748-2019/RI



For Plaintiff:

Steven D. Schwartzman, Esq.

900 South Avenue, Suite 101

Staten Island NY 10314

Defendant Pro se:

Josue Reyes

Staten Island, NY
Joy F. Campanelli, J.

Plaintiff Bonfiglio & Asterita, LLC, (hereinafter "Bonfiglio") has brought this action for breach of contract seeking to recover $14,674.29 in damages for non-payment of legal fees associated with their representation of pro-se defendant, Josue Reyes (hereinafter "Reyes"), in a divorce action.

A bench trial was conducted on October 29, 2019.

Plaintiff called Steven D. Schwartzman, Esq. to testify. Mr. Schwartzman testified in relevant part as follows: he has been employed by plaintiff, a general practice law firm, for the last six or seven years as an attorney. He primarily handles the litigation and matrimonial parts of the firm including divorces. He represented defendant regarding the subject divorce action pursuant to a legal services agreement (hereinafter "LSA") that was executed on May 6, 2013 by Joseph J. Asterita on behalf of the firm and on May 8, 2013 by defendant. Pursuant to the LSA, the minimum fee to represent the defendant in this matter was $5,000.00. Payment would be made by depositing a retainer in the amount of $5,000.00 to the firm through an initial payment of $2,500.00 to be followed by weekly installments of $200.00.[FN1] Mr. Schwartzman logged in the work that was performed at or about the time it was completed (Plaintiff's Ex. 2). Plaintiff [*2]commenced working on defendant's divorce action on or about April 16, 2013 and it continued through March of 2014 when the divorce was finalized. According to Mr. Schwartzman, the log is accurate but the interest/finance charges that were assessed are not reflected. Monthly invoices were prepared and mailed to the defendant.[FN2] On or about June 28, 2019, plaintiff forwarded to defendant documentation in accordance with the Fee Dispute Arbitration Program Rules (Plaintiff's Ex. 4).[FN3] The within action was commenced after defendant failed to respond. Mr. Schwartzman also testified that he has no recollection of defendant ever asking that plaintiff be relieved as counsel in the divorce action. Plaintiff was never relieved as counsel for defendant and continued to represent him through the completion of the divorce action.

Pro-Se defendant Reyes testified on his own behalf in relevant part: he moved to 71 New Street in Staten Island in November of 2018.[FN4] The only invoices that he received from plaintiff prior to his receipt of the Summons and Complaint were dated between May 1, 2013 and December 1, 2013 (Defendant's Ex. B). Prior to a court appearance on or about January 15, 2014, defendant had a conversation with Mr. Schwartzman in the corridor outside of the courtroom wherein he told Mr. Schwartzman that he no longer wanted the plaintiff to represent him because he could not afford to pay. Although Mr. Schwartzman understood and agreed to this, the presiding Judge denied his application.[FN5] Defendant also testified that even if the Court determined that he owed plaintiff money, that it should be reduced by $1,687.50 [FN6] based on instances where appearances had to be adjourned due to Mr. Schwartzman's lateness and/or failure to bring the appropriate documents.

The work log, entered as plaintiff's Ex. 2, is dated October 29, 2019, the same date as the trial of the within action. As of that date, defendant's alleged outstanding balance was $11,780.00 for professional services and $412.75 for additional services. Mr. Schwartzman testified that all legal work on defendant's divorce action stopped on or about March of 2014. The Court is, however, troubled by a series of entries that are listed in each category that indicate a prior action for the same relief.[FN7] These, are as follows: charge of $112.50 was assessed on [*3]January 16, 2015 for the review of "client's prior bills, prepared arbitration notice and supporting docs; sent to client." On February 3, 2015, an entry was made relating to "Research on cause of action for nonpayment of legal fees" (no charge was assessed). On April 23, 2015, an entry was made relating to "Finalized complaint for non-payment of legal fees; assembled exhibits; prepared for filing" (no charge was assessed). On May 5, 2015, an entry was made relating to the finalization of the complaint (no charge was assessed). On May 7, 2015, an entry was made relating to the review of "emails re: skip trace; discussions" (no charge was assessed). On July 22, 2015, defendant was assessed a charge of $45.00 for "f/u on status re: service in Florida with process server." In the "Additional Charges" category, on May 6, 2015, a Process Server Fee (non-service) of $95.00 and a Process Server Fee (skip trace) of $100.00 were assessed. On September 25, 2019, a mailing fee totaling $12.75 ("Certified mail $10.85 — Re-filed S & C re arbitration proceedings and pre-paid self-address envelope $1.90) and a filing fee (Re-filed S & C — Arbitration) totaling $45.00 were entered. Finally, on October 18, 2019, a Process Server Fee (Arbitration matter. Invoice Number 1939081) in the amount of $90.00 was assessed against defendant. Based on the foregoing, it appears that defendant was originally offered the opportunity to arbitrate the subject fee dispute in 2015 and that an action was subsequently commenced later that year. A review of the Court's records indicates that on May 1, 2015 an action was commenced by filing a Summons and Complaint under Index Number 2515/2015. On June 14, 2018, this prior action appeared on the Part 97 calendar and was dismissed as abandoned for failure to prosecute. On September 3, 2019, more than a year after that action had been dismissed, plaintiff filed a Notice of Discontinuance regarding Index Number 2515/2015.

In the within matter, plaintiff has failed to either mention or establish any basis upon which the Court could or should revive its abandoned claim pursuant to CPLR §205(a); Mercado v. Ovalle, 110 AD3d 539 (1st Dept., 2013); Duval v. Centerlight Health System, Inc., 62 Misc 3d 1213(A) (Supt. Ct., Bronx, Cty., 2019).

Revival of an action pursuant to CPLR §205(a) is subject to three conditions. First, the new action will only be permitted if it would have been timely if commenced at the time of the prior action. Second, the new action must be commenced within six months of the termination of the prior action. Third, the prior action must be terminated for reasons other than its voluntary discontinuance. Sokoloff v. Schor, 176 AD3d 120 (2d Dep't., 2019). The Appellate Division also noted that dismissals "for neglect to prosecute are specifically exempted from the saving provisions of CPLR 205(a), since in cases where there are dismissals for delays, disregard of scheduling orders, lack of diligence, inaction and laxity, it is not acceptable to permit plaintiffs to start all over again Sokoloff v. Schor, supra.

In the Court of Appeals' holding on the case of Andrea v. Armone, Hedin, Casker, Kennedy and Drake, Archtects and Landscape Architects, P.C., 5 NY3d 514 (2005) Justice Robert S. Smith wrote:

"The plain purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205(a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road."Supreme Court was of course correct in thinking it undesirable to punish plaintiffs for the failures of their counsel. But what is undesirable is sometimes also necessary, and it is often necessary, as it is here, to hold parties responsible for their lawyers' failure to meet deadlines. Litigation cannot be conducted efficiently if deadlines are not taken [*4]seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995 [2004]; Brill v City of New York, 2 NY3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004]; Kihl v. Pfeffer, 94 NY2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] )."

Plaintiff's initial action, which was commenced on May 1, 2015 under Index Number 2515/2015 was dismissed on June 14, 2018 as abandoned for failure to prosecute. On September 3, 2019, fourteen months later, plaintiff filed its Notice of Discontinuance and less than one month later, on September 30, 2019, plaintiff filed its Summons and Complaint in the within action. Plaintiff does not meet the requirements of CPLR §205(a) because its initial action was dismissed as abandoned and it was voluntarily discontinued.[FN8]

Accordingly, judgment is awarded to the defendant and this action is dismissed in its entirety. All remaining claims are denied as moot.

This constitutes the decision and order of this Court.

Dated: December 20, 2019

Staten Island, NY

HON. JOY F. CAMPANELLI, A.J.S.C. Footnotes

Footnote 1:It is undisputed that the retainer was paid by defendant.

Footnote 2:There is no indication on the work log that the invoices were mailed to the defendant. Plaintiff produced monthly invoices for the period of November 1, 2017 - October 1, 2019 that provide a mailing address for defendant as 122-07 Linden Boulevard, Southern Ozone Park, NY 11420 (plaintiff's Ex. 3). According to Mr. Schwartzman, he could not recall if any invoice was returned to the firm. Furthermore, even though he admitted that there was some indication that defendant had moved, there was no testimony provided by or elicited from Mr. Schwartzman to explain how or when plaintiff learned of the possibility that defendant had moved or when it was determined that defendant had "fallen off the map."

Footnote 3:These documents were mailed to defendant at 71 New Street, Staten Island, NY 10302.

Footnote 4:No testimony was provided by or elicited from defendant as to where he resided prior to 71 New Street in Staten Island.

Footnote 5:Defendant admitted that he never put anything in writing and that he did not file any grievances regarding the services that were provided by plaintiff.

Footnote 6:Representing a total of seven and a half hours multiplied by Mr. Schwartzman's hourly fee of $225.00.

Footnote 7:Plaintiff failed to apprise the Court of the existence of or circumstances relating to the commencement of any prior action.

Footnote 8:In light of the above decision, the issues of the legality of the assessment of finance and/or interest charges by the plaintiff or what would be, if anything, the amount owed by defendant to the plaintiff will not be addressed.