Flanagan Law, PLLC v Perno
Annotate this CaseDecided on December 18, 2020
Supreme Court, New York County
Flanagan Law, PLLC, Plaintiff,
against
John Perno, THOMAS PERNO, JOHN PERNO III, J.J.P. REALTY, CORP., LIC & SONS CONSTRUCTION, INC., and L.I.C. CONSTRUCTION, INC., Defendants.
655160/2019
Flanagan Law, PLLC, New York, NY (Richard J. Flanagan of counsel), for plaintiff pro se.
Cermele & Wood LLP, White Plains, NY (Mark Cermele of counsel), for defendants.
Gerald Lebovits, J.
Plaintiff, Flanagan Law, PLLC, is a New York City law firm. It previously represented defendants in a trip-and-fall personal-injury action brought against them in Supreme Court, Queens County (the underlying action). In particular, Flanagan Law assumed representation of defendants in the underlying action after their prior counsel withdrew prior to trial. Flanagan Law brought a motion for summary judgment, which was denied. Defendants ultimately prevailed in the underlying action after trial.
Plaintiff here later brought this action against defendants, seeking $37,040 in allegedly owing-but-unpaid legal fees (plus interest) incurred in the underlying action. Defendants [*2]counterclaimed for alleged malpractice in the underlying action, seeking $14,000 in fees paid to plaintiff during the course of its representation. Plaintiff now moves under CPLR 3212 for summary judgment on all claims. Defendants cross-move for summary judgment on their legal malpractice claim. The motion and cross-motion are denied.
DISCUSSION
A party moving for summary judgment "must make a prima face showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once a plaintiff has provided evidence to support judgment as a matter of law, "the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial." (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013].) When evaluating a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. (Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997].)
I. Plaintiff's Motion for Summary Judgment
A. Plaintiff's Claim for an Account Stated
Plaintiff moves for summary judgment on its cause of action for an account stated. The motion is denied.
An account-stated claim arises from an implicit agreement between the parties on the amount that one party owes the other on past transactions between them. (See Rodkinson v Haecker, 248 NY 480, 485 [1928].) A party seeking judgment as a matter of law on an account-stated claim must show that the invoices were properly addressed and mailed to a client, using a regular office mailing procedure. (See Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 161-162 [1st Dept 2005].) In addition, plaintiff must establish "with admissible evidence, the receipt and retention of bills without objection within a reasonable time." (LD Exch., Inc. v Orion Telecom. Corp., 302 AD2d 565, 565 [2d Dept 2003].)
Plaintiff has not met that burden here. It relies on one conclusory statement in an affidavit from its principal, Richard J. Flanagan, that invoices were mailed to the address provided by defendants based on plaintiff's normal office procedure.[FN1] But plaintiff provides no information about that putative office procedure. And there is no documentary evidence indicating that the invoices were mailed, mailed to the correct address, paid in part, or received and retained without objection. Indeed, the invoices attached to plaintiff's motion papers do not [*3]even list defendants' address(es) at all.[FN2]
B. Plaintiff's Claim for Breach of Contract
Plaintiff also moves for summary judgment on its contract claim. This court concludes that the motion should be denied because plaintiff has not established prima face its entitlement to judgment as a matter of law.
To prevail on a breach of contract claim, a party must establish the existence of a contract, the plaintiff's performance, the defendant's breach of that contract, and resulting damages. (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].) In the case of an attorney-client relationship, 22 NYCRR § 1215.1 requires attorneys to provide all clients with a written letter of engagement or to execute a written retainer agreement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute. (Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60 [2d Dept 2007].)
Here, plaintiff has not submitted an attorney-client retainer agreement or letter of engagement to establish that it satisfied the requirements of § 1215.1. Defendant Thomas Perno also represents in an affidavit that no such letter or agreement was provided or executed. Although plaintiff disputes Perno's representation in his affidavit, it does not offer any documentary evidence supporting its assertion that a retainer agreement existed from the outset.[FN3] Thus, with respect to the breach-of-contract claim plaintiff has thus failed to offer sufficient evidence to meet its initial prima facie burden at summary judgment.
C. Plaintiff's Claim in Quantum Meruit
Alternatively, plaintiff claims that it is entitled to the reasonable value of its legal services in quantum meruit. This court again concludes that plaintiff's motion for summary judgment should be denied.
It is true that an attorney's failure to comply with the rules on retainer agreements or engagement letters established in 22 NYCRR § 1215.1 would not preclude it from later recovering legal fees in quantum meruit. (See Miller v Nadler, 60 AD3d 499, 500 [1st Dept 2009].) But plaintiff has not established the absence of any material dispute of fact. To recover in quantum meruit, a plaintiff must establish "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services." (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [1st Dept 2009].) Defendants in this case have submitted affidavits and documents to dispute that plaintiff performed services in good faith—suggesting both that plaintiff padded its legal bills by performing unnecessary services and submitted a bare-bones summary-judgment motion that was plainly inadequate on its face. This court concludes that defendants have thereby established a material dispute of fact that precludes the grant of summary judgment on plaintiff's quantum-meruit claim.
II. Defendants' Cross-Motion for Summary Judgment
Defendants cross-move for summary judgment on their malpractice counterclaim. The motion is denied.
A party must establish three elements to recover on a legal-malpractice claim: negligence of the attorney accused of malpractice, proximate causation between the attorney's negligence and the loss sustained by the client, and proof of actual damages. (See Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998].) The first element requires a malpractice claimant to adduce evidence that establishes, through more than allegations of deficiencies in plaintiff's conduct as an attorney, that plaintiff failed to meet the standard of professional care and skill. (See Thaler & Thaler v Gupta, 208 AD2d 1130, 1132 [3d Dept 1994].) To show proximate cause in a legal malpractice claim, the claimant must establish that "but for" the attorney's negligence, the claimant would have prevailed or would not have sustained any damages. (See Levine, 256 AD2d at 149.) Therefore, "to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the Underlying Action 'but for' the attorney's negligence." (Leder v Spiegel, 9 NY3d 836, 837 [2007] [internal citations omitted].)
Defendants here emphasize that in their view plaintiff's summary-judgment motion in the underlying action was so thin and unsupported as to fall below basic standards of professional care. And they assert that as a result of the (putative) deficiencies of this affidavit, defendants fared worse at summary judgment than other defendants with weaker positions in the underlying action. This court is skeptical, though, that defendants' legal position in the underlying action (or that of the other defendants in the action), and thus the requisites of a proper summary-judgment motion in that action, are "part of an ordinary person's daily experience." (Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010] [reversing grant of summary judgment on malpractice claim].) Defendants were therefore required to come forward on this motion with an expert affidavit to [*4]establish each element of their malpractice claim. They have not done so.
Additionally, defendants have not shown—as opposed to merely asserting—that their legal position in the underlying action was comparable or even stronger than that of other defendants who prevailed at summary judgment. And although defendants maintain that their position was so strong that the judge in the underlying action dismissed the claims against them sua sponte at trial, they have not supported that claim with documentary evidence.
This court concludes that in these circumstances, defendants have not established the absence of any factual dispute and that they are entitled to judgment as a matter of law on their malpractice counterclaim.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment under CPLR 3212 is denied; and it is further
ORDERED that defendants' cross-motion for summary judgment under CPLR 3212 on their malpractice counterclaim is denied.
DATE 12/18/2020 Footnotes
Footnote 1:This affidavit is copied, nearly verbatim, from plaintiff's verified complaint. (Compare NYSCEF No. 2 [complaint], with NYSCEF No. 12 [affidavit].)
Footnote 2:Additionally, even if plaintiff had provided additional evidence about the mailing and receipt of invoices, its account-stated claim is closely intertwined with defendants' malpractice counterclaim, because much of the "alleged conduct on plaintiff's part, which forms the basis of the malpractice claim, occurred prior to the billing period covered by the invoices in question." (Morrison Cohen Singer & Weinstein, LLP v Ackerman, 280 AD2d 355, 356-357 [1st Dept 2001].) And, as discussed further below (see Point II, infra), this court concludes that disputed issues of fact remain on the malpractice counterclaim. Summary judgment is therefore inappropriate on the account-stated claim as to which disputed issues of fact remain. (See Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013]; (Tabner v Drake, 9 AD3d 606, 611 [3d Dept 2004] [finding plaintiffs' motion for summary judgment on their account-stated claims premature in light of triable issues of fact regarding defendants' legal-malpractice defense].)
Footnote 3:Additionally, as discussed further below, defendants hotly dispute that plaintiff here properly and competently rendered legal services in the underlying action.
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