Opinion
Index No. EF009383-2019
08-24-2022
Wilfred Robert Curtis, Plaintiff, v. Ronald A. Berutti, Esq., and The Weiner Law Group, Defendants.
Allan B. Rappleyea, Esq., Corbally, Gartland and Rappleyea, LLP Attorneys for Plaintiff Anthony Iaconis, Esq., Diserio Martin O'Connor & Castiglioni LLP Attorneys for Defendants
Allan B. Rappleyea, Esq., Corbally, Gartland and Rappleyea, LLP Attorneys for Plaintiff
Anthony Iaconis, Esq., Diserio Martin O'Connor & Castiglioni LLP Attorneys for Defendants
Timothy P. McElduff, Jr., J.
The Court has considered the following papers on Defendants' motion to dismiss Plaintiff's complaint pursuant to CPLR §§ 3211(a)(4), (5) and/or (7):
1. Notice of Motion, filed on February 4, 2020;
2. Iaconis Affirmation in Support, with Exhibit A, filed on February 4, 2020;
3. Berutti Affidavit in Support, with Exhibits 1-6, filed on February 4, 2020;
4. Memorandum of Law in Support, filed on February 4, 2020;
5. Curtis Affidavit in Opposition, filed on March 4, 2020;
6. Memorandum of Law in Opposition, filed on March 4, 2020;
7. Iaconis Reply Affirmation, with Exhibit A, filed on March 10, 2020; and
8. Curtis Sur-Reply Affidavit filed on August 13, 2020.
Background
By Findings of Fact, Conclusions of Law and Judgment of this Court (Onofry, A.J.S.C.) dated June 29, 2017 (Index No. 2050-2017), Plaintiff Wilfred Robert Curtis ("Mr. Curtis") consented to the appointment of a guardian for both his person and property pursuant to Article 81 of New York's Mental Hygiene Law. Attorney Mishael Pine, Esq. was appointed as the guardian of both Mr. Curtis' person and property. Attorney Todd A. Kelson, Esq. was appointed as Mr. Curtis' attorney in the guardianship proceeding.
At the time of the guardianship proceeding, Mr. Curtis was a party to two, complex pending civil litigations in New York State Supreme Court: Tabak is Tribeca, LLC, et al. v. Curtis, et al. [New York County Index No. 162954/2015] and Curtis, et al. v. Phillip [Dutchess County Index No. 52674/2016]. Early into the guardianship proceeding, Ms. Pine was tasked with finding counsel to replace outgoing counsel for Mr. Curtis in the Tabak action. Ms. Pine secured the services of Defendant Weiner Law Group as replacement counsel in the Tabak litigation. Defendant Ronald A. Berutti, Esq., was the partner at Defendant Weiner Law Group who was primarily responsible for handling the Tabak litigation. Within a year, Mr. Curtis's counsel in the Phillip case was unable to continue their representation due to staffing issues. Under extreme time constraints, Ms. Pine was able secure Defendant Weiner Law Group to serve as replacement counsel in the Phillip litigation as well. This Court authorized the guardian's retention of The Weiner Law Group in both the Tabak and Phillip litigations by Orders dated June 6, 2017 and February 5, 2018.
In the course of litigating Mr. Curtis' cases, The Weiner Law Group applied to this Court for approval of its attorney's fees on three occasions. Neither Mr. Curtis, nor his attorney (Todd A. Kelson, Esq.), nor his guardian (Mishael Pine, Esq.) ever objected to the reasonableness of the fees charged or to the results obtained by The Weiner Law Group. This Court approved each of The Weiner Law Group's fee applications as fair and reasonable ($46,960.98 by Order dated December 19, 2017; $27,917.73 by Order dated October 2, 2018; and $108,448.55 by Order dated October 2, 2018). Although not required for purposes of approving or denying an attorney's fee application, The Weiner Law Group's efforts proved to be successful, especially given the status and circumstances of the pending litigations at the time The Weiner Law Group replaced the prior counsel of record. (See Affidavit of Mishael Pine, Esq., attached as Exhibit 6 to Berutti Affidavit, as well as the Berutti Affidavit, generally).
At the request of Mr. Curtis, himself, and his attorney, Todd A. Kelson, Esq., and with the consent of his guardian, Mishael Pine, Esq., this Court terminated the guardianship of Mr. Curtis by Decision, Order and Judgment Terminating Guardianship dated January 17, 2019.
Following the guardianship's termination, Defendant Weiner Law Group filed a motion seeking the approval of fees and costs incurred from August 1, 2018 through the termination of the guardianship on January 17, 2019. Mr. Curtis filed opposition to motion. The motion was fully submitted on September 17, 2019
By Order dated October 2, 2019, the Ninth Judicial District Guardianship Part (DiBella, J.S.C.) approved guardian Mishael Pine, Esq.'s final accounting and discharged her as guardian. Mr. Curtis moved to vacate the Order dated October 2, 2019.
On August 22, 2019, Mr. Curtis filed the above-captioned action sounding in legal malpractice against Defendants Ronald A. Berutti, Esq. and The Weiner Law Group. In response the Defendants filed the instant motion to dismiss the complaint. This matter, as well as The Wiener Law Group's final fee application, was stayed by this Court (Onofry, A.J.S.C.) pending the outcome of Mr. Curtis' motion to vacate the Order approving the final guardianship accounting and discharge of the guardian.
By Order dated April 1, 2022, the Court (DiBella, J.S.C.) denied Mr. Curtis' motion to vacate.
Thereafter, by Order of Transfer and Reassignment dated May 18, 2022, this Court (Onofry, A.J.S.C.) lifted the stay on the pending fee application and motion to dismiss the complaint and transferred these matters to this Part (McElduff, A.J.S.C.) for decision of the pending applications and all further proceedings under Orange County Supreme Court Index Nos. EF009283-2019 and 2050-2017.
By Decision and Order dated August 22, 2022, this Part approved The Weiner Law Group's application for attorney's fees and costs incurred from August 1, 2018 through the termination of the guardianship on January 17, 2019 in the amount of $89,312.43.
The Complaint
Mr. Curtis' Verified Complaint, dated December 19, 2019, contained four, labeled causes of action against the Defendants: (1) breach of fiduciary duty, (2) breach of contract, (3) unjust enrichment and (4) a demand for common law accounting. (See Iaconis Affm. Ex. A). The breach of fiduciary duty, breach of contract and unjust enrichment causes of action arise from the same set of facts and sought the same damages, which are "believed to be in excess of" $600,000.00, with such additional finance and interest charges that have accrued, including costs of legal fees. (See Iaconis Affm. Ex. A). Mr. Curtis' accounting cause of action alleges that the Defendants are in possession of books and records without having returned them and demands that the Defendants provide him with "an accounting" for his Brooklyn property (1190 Bedford Avenue), turn over their files and "account" for the two lawsuits handled by the Defendants on Mr. Curtis' behalf (the Tabak and Phillip cases).
The Motion to Dismiss
Defendants have filed a pre-answer motion to dismiss the complaint pursuant to CPLR § 3211(a)(4) (prior action pending, in reference to the most recent application for fees in the guardianship proceeding), CPLR § 3211(a)(5) (the collateral estoppel/res judicata effect of previously determined fee applications) and CPLR § 3211(a)(7) (failure to state a cause of action).
On a motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7), the complaint is to be afforded a liberal construction and the court should accept the facts alleged therein as true, accord the pleading the benefit of every reasonable inference and only determine whether the facts, as alleged, fit within any cognizable legal theory. See Hurrell-Harring v State of New York, 15 N.Y.3d 8 (2010).
Here, upon accepting the allegations of the complaint as true and according the complaint the benefit of every reasonable inference, this Court finds that the complaint, in its entirety, fails to state a cause of action as matter of law for the reasons that follow.
The Attorney's Liability to a Guardian's Ward for Legal Malpractice
The Defendants correctly view the complaint, regardless of titles that Mr. Curtis has placed on the causes of action, as containing a cause of action for legal malpractice. See Guiles v. Simser, 35 A.D.3d 1054, 1055 (3d Dept. 2006) (holding that plaintiff's cause of action, labeled as a breach of her attorney's fiduciary duty, was essentially a claim of legal malpractice); Scanio v. Palmiere & Pellegrino, P.C., 251 A.D.2d 1018, 1018 (4d Dept. 1998) (finding that, despite plaintiff's characterization of the action as one for breach of contract, "the complaint in actuality sounds exclusively in legal malpractice, inasmuch as it is premised on allegations arising from the defendant[s'] purportedly inadequate legal representation of [plaintiff]").
As a defense to any claim for legal malpractice, the Defendants argue that Mr. Curtis' guardian, Mishael Pine, Esq., retained Defendant Weiner Law Group, with Court approval, as opposed to Mr. Curtis having retained The Weiner Law Group, himself. That fact is not in dispute. At the time of Defendant Weiner Law Group's retention, Mr. Curtis was the incapacitated ward of guardian Mishael Pine, Esq., and, therefore, could not have retained an attorney himself. (See Berutti Affd., Exs. 1 & 2). Since Mr. Curtis did not personally retain the Defendants himself, the Defendants conclude that there is no attorney-client relationship between them (i.e., no privity) and, thus, no possible liability for legal malpractice to Mr. Curtis. Stated another way, Defendants argue that the attorney-client relationship and contractual privity existed only between Defendant Weiner Law Group and guardian Mishael Pine, Esq., who retained The Weiner Law Group.
In New York, absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable for professional negligence to third parties who are not in privity with the attorney; however, where the relationship is so close as to touch the bounds of privity, an action for legal malpractice may be maintained. Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172 (1st Dept. 2004).
"In order for a relationship to approach 'near' privity's borders, for the purpose of maintaining a professional negligence claim, the professional must be aware that its services will be used for a specific purpose, the plaintiff must rely upon those services, and the professional must engage in some conduct evincing some understanding of the plaintiff's reliance." Allianz, 13 A.D.3d at 175.
Although New York's "near privity" exception is infrequently applied, sufficient "near privity" has been found under certain circumstances. See, e.g., Minsky v. Haber, 74 A.D.3d 763, 764 (2d Dept. 2010) (near privity exception applied where attorneys represented daughter's "personal interests" where she was deemed to be a "third-party beneficiary" of the attorney's prior representation of her father); Baer v. Broder, 86 A.D.2d 881, 882 (2d Dept. 1982) (near privity exception applied where widow, who, as executrix of her husband's estate, hired attorney to prosecute a wrongful death action, was permitted to maintain an action against the attorney, in her individual capacity, for malpractice even though she had no privity of contract with the attorney in her individual capacity, since the widow and the attorney had a "face-to-face" relationship in the underlying wrongful death action and the widow was the "real party in interest" in the wrongful death action); Good Old Days Tavern, Inc. v. Zwirn, 259 A.D.2d 300, 300 (1st Dept. 1999) (near privity exception applied where plaintiff, as president and sole shareholder of corporate client, was a foreseeable third-party beneficiary of the contract pursuant to which he retained the defendant/attorney to represent his corporation, which was tantamount to a relationship of contractual privity).
The precise question of whether an attorney who represents a guardian also represents the guardian's ward (under a "near privity" exception or otherwise) has not been answered in New York. Other states, however, have answered the question in the affirmative. Such states have recognized that an exception to the privity requirement for legal malpractice liability must exist when a guardian hires an attorney specifically the benefit their ward. For example, in Illinois, courts have recognized that an attorney-client relationship extended from the attorney to the ward where the attorney, although hired by the ward's guardian, was acting for the primary benefit or best interests of the ward. See Schwartz v. Cortelloni, 177 Ill.2d 166, 174-75 (1997) (stating that the key factor to be considered is whether the attorney acted at the direction of or on behalf of the client for the benefit of the ward). Similarly, in Florida, it has been held that the attorney for guardian owes a duty to the ward where the ward is the intended third-party beneficiary of the attorney's services. See Saadeh v. Connors, 166 So.3d 959 (Fla. Dist. Ct. App. 2015) (reinstating the ward's legal malpractice claim against the guardian's attorney and noting that the relationship between the guardian and the ward is such that the ward must be considered to be the primary or intended beneficiary and cannot be considered an "incidental" beneficiary). Further, Arizona courts have held that when an attorney undertakes to represent the guardian of an incompetent ward, the attorney assumes a relationship not only with the guardian but also with the ward as the intended beneficiary, whose interests overshadow those of the guardian and, thus, an attorney cannot escape liability for wrongful conduct on the ground of lack of privity. See In re Guardianship of Sleeth, 226 Ariz. 171 (Ct. App. 2010); see also Fickett v. Superior Court, 27 Ariz.App. 793 (1976).
Here, there is sufficient "near privity" between The Weiner Law Group and Mr. Curtis, notwithstanding the fact that his guardian, Mishael Pine, Esq., retained The Weiner Law Group. It is patently obvious that Ms. Pine retained The Weiner Law Group for Mr. Curtis' benefit, in that The Weiner Law Group was hired as replacement counsel to represent Mr. Curtis in two pending Supreme Court actions, in which Mr. Curtis was already a party. For purposes of meeting New York's "near privity" exception to the privity requirement for imposing legal malpractice liability, it doesn't get any nearer than that. Under these circumstances, it is indisputable that Defendants were aware that their services would be used for a specific purpose that benefitted the ward (i.e., both defending Mr. Curtis and prosecuting his claims in the pending litigations) and that the ward/Mr. Curtis would necessarily be relying on those services as the intended beneficiary. Accordingly, this Court concludes that the relationship between The Weiner Law Group and Mr. Curtis was so near privity that The Weiner Law Group cannot escape liability for legal malpractice on the ground of lack of direct contractual privity.
However, while Mr. Curtis' legal malpractice cause of action does not fail for lack of privity, it does fail for other reasons, as discussed below.
Plaintiff Fails to State a Cause of Action for Legal Malpractice
A. Plaintiff's recovery for legal malpractice is barred by res judicata and/or collateral estoppel.
As summarized in the case of Chisholm-Ryder Co. v. Sommer & Sommer:
It is familiar law that the doctrine of res judicata or claim preclusion forecloses a party from relitigating a cause of action which was the subject matter of a former lawsuit or from raising issues or defenses that might have been litigated in the first suit (see Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). The related doctrine of collateral estoppel precludes a party from relitigating issues which were previously determined even though the prior suit involved a separate cause of action or a different **72 adversary. By definition, collateral estoppel, or issue preclusion, does not bar the litigation of issues which were not previously raised. It will, however, foreclose issues which were necessarily decided in the first action, litigated or not (Statter v. Statter, 2 N.Y.2d 668, 672, 163 N.Y.S.2d 13, 143 N.E.2d 10 (in an action for separation, the validity of the marriage was "necessarily determined" and barred a subsequent action for annulment).Chisholm-Ryder Co. v. Sommer & Sommer, 78 A.D.2d 143, 144 (4d Dept. 1980).
Specifically, a judicial determination fixing the value of a professional's services necessarily decides there was no legal malpractice, even if the client did not raise any issue of malpractice in the prior proceeding. See Sharp v. Chittur, No. 155098/13, 2014 WL 2042295, at *1 (Sup. Ct. 2014); See also Breslin Realty Dev. Corp. v. Shaw, 72 A.D.3d 258, 264 (2d Dept. 2010) (holding that a prior determination awarding fees bars a subsequent claim sounding in legal malpractice pursuant to both the doctrine of res judicata and the doctrine of collateral estoppel).
By Decision and Order dated August 22, 2022, this Court granted Defendant Weiner Law Group's application for attorney's fees incurred on Mr. Curtis' behalf during pendency of his guardianship (from the period August 1, 2018 through the termination of the guardianship on January 17, 2019) over the objection of Mr. Curtis, who, with counsel, submitted opposition to the motion. Similar to the allegations of legal malpractice made in the instant Verified Complaint, Mr. Curtis's opposition to The Weiner Law Group's fee application contained allegations of fee churning, questionable billing practices and strategic choices. However, this Court's determination of the propriety and reasonableness of The Weiner Law Group's fees bars Mr. Curtis' subsequent claim of legal malpractice concerning those fees pursuant to the doctrines of res judicata and collateral estoppel.
Neither Mr. Curtis' court-appointed attorney for the guardianship proceedings (Todd A. Kelson, Esq.) nor his appointed guardian (Mishael Pine, Esq.) ever objected to any application for fees made by Defendant Weiner Law Group. To the contrary, they endorsed them. The Weiner Law Group's final application for attorney's fees accrued during the guardianship was filed after Mr. Curtis' guardianship was terminated. Mr. Curtis hired new attorneys, Corbally, Gartland and Rappleyea, LLP, to represent him in opposing The Weiner Law Group's final application for fees.
B. Plaintiff failed to sufficiently allege the causation element of legal malpractice.
To state a cause of action for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 812-13 (2d Dept. 2013). In reference to the proximate cause element, and to avoid dismissal for failure to state a cause of action, the Plaintiff must allege specific factual allegations demonstrating that "but for" the defendant's alleged negligence there would have been a more favorable outcome in the underlying action. Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083 (2d Dept. 2005). Speculation concerning different or better outcomes is not sufficient to sustain a cause of action for legal malpractice. See AmBase Corp. v. Davis Polk & Wardwell, 30 A.D.3d 171, 172, (1st Dept. 2006), aff'd, 8 N.Y.3d 428 (2007) (legal malpractice claim was properly dismissed as speculative). Further, it is well settled that an attorney's decision to pursue one of several reasonable courses of action does not constitute malpractice even where the attorney's selection of one of several reasonable courses of action, when viewed in hindsight, appears to be an error in judgment. Urias v. Daniel P. Buttafuoco & Associates, PLLC, No. 11-7186, 2012 WL 5903249 (Sup. Ct. 2012). While a client may be dissatisfied with the attorney's work or strategic choices, the client's mere dissatisfaction cannot support a malpractice claim as a matter of law. See Magnacoustics, Inc. v. Ostrolenk, Faber, Gerb & Soffen, 303 A.D.2d 561, 562 (2d Dept. 2003); Siracusa v. Sager, 105 A.D.3d 937, 938-39 (2d Dept. 2013).
Here, Mr. Curtis failed to allege facts demonstrating that "but for" Defendants' negligence, there would have been a more favorable outcome in the litigations. Instead, Mr. Curtis' allegations amounted to dissatisfaction and speculation that different strategic choices could have created different results. Accordingly, the Verified Complaint fails to state a cause of action for legal malpractice.
Plaintiff Fails to State a Cause of Action for Breach of Fiduciary Duty
In the attorney liability context, a breach of fiduciary duty claims is governed by the same standard as a legal malpractice claim. See Knox v. Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d 70, 75-76 (1st Dept. 2018). Thus, in order to recover damages against an attorney arising out of the breach of the attorney's fiduciary duty, the plaintiff must establish the "but for" proximate cause element of legal malpractice (i.e., but for the attorney's conduct, the client would not have sustained any damages). Knox, 168 A.D.3d at 76; see also Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 (1st Dept. 2004).
As discussed supra, Mr. Curtis failed to allege the "but for" proximate cause element of either legal malpractice or breach of fiduciary duty. Therefore, Mr. Curtis' cause of action for breach of fiduciary duty must be dismissed.
Furthermore, breach of fiduciary duty claims must be dismissed as duplicative where they arise out of the same facts and seek the same damages as a legal malpractice claim. Courtney v. McDonald, 176 A.D.3d 645, 645-646 (1st Dept. 2019); Kvetnaya v. Tylo, 49 A.D.3d 608, 609 (2d Dept. 2008). Similarly, claims for breach of fiduciary duty that are based on the same allegations as claims for breach of contract must be dismissed as duplicative. See, e.g., Ullmann-Schneider v. Lacher & Lovell-Taylor, P.C., 121 A.D.3d 415, 416 (1st Dept. 2014); Chowaiki & Co. Fine Art v. Lacher, 115 A.D.3d 600, 600 (1st Dept. 2014) (holding that the motion court properly dismissed plaintiffs' claim for breach of fiduciary duty as duplicative of the breach of contract claim, since the claims are premised upon the same facts and seek the same damages). Stated another way, a breach of fiduciary duty claim is duplicative of a breach of contract claim where the claimant fails to allege any duty apart from or independent from the duties associated with the contract. See Mosaic Caribe, Ltd. v. AllSettled Grp., Inc., 117 A.D.3d 421, 423 (1st 2014).
Since Mr. Curtis' breach of fiduciary duty cause of action is premised upon the same facts and seeks the same damages as his causes of action for legal malpractice and breach of contract, Mr. Curtis' breach of fiduciary duty cause of action is duplicative and must be dismissed.
Plaintiff Fails to State a Cause of Action for Breach of Contract
Generally, breach of contract claims must be dismissed as duplicative where they arise out of the same facts and seek the same damages as a legal malpractice claim. Courtney v. McDonald, 176 A.D.3d 645, 645-46 (1st Dept. 2019); Kvetnaya v. Tylo, 49 A.D.3d 608, 609 (2d Dept. 2008). Therefore, unless a plaintiff alleges that an attorney defendant breached a promise to achieve a specific result, a claim for breach of contract is insufficient and duplicative of claim for legal malpractice. Alphas v. Smith, 147 A.D.3d 557, 558 (1st Dept. 2017); Magnacoustics, Inc. v. Ostrolenk, Faber, Gerb & Soffen, 303 A.D.2d 561, 562 (2d Dept. 2003).
Here, Mr. Curtis' breach of contract claim arises out of the same facts and seeks the same damages as his legal malpractice/breach of fiduciary duty claim. Mr. Curtis failed to allege that the Defendants breached any promise to achieve a specific result. Accordingly, Mr. Curtis' cause of action for breach of contract is duplicative and must be dismissed.
Plaintiff Fails to State a Cause of Action for Unjust Enrichment
Where there is an express contract governing a particular subject matter, no recovery can be had on a theory of implied or quasi contract arising out of the same subject matter. Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 388 (1987). Accordingly, where an unjust enrichment claim is premised on the same facts as a breach of contract claim and seeks the same damages, the unjust enrichment claim is duplicative and must be dismissed as a matter of law. See, e.g., Helguson v. Alphaperformance USA, LLC, No. 654581/2020, 2021 WL 3423064, at *5 (Sup. Ct. 2021); Benham v. eCommission Sols., LLC, 118 A.D.3d 605, 607 (1st Dept. 2014); see also Lewis Brisbois Bisgaard & Smith LLP v. Fishman, No. 655198/2017, 2019 WL 854599, at *4 (Sup. Ct., 2019) ("Where a breach of contract, breach of fiduciary duties, and unjust enrichment claims arise from the same facts and allege similar damages as a legal malpractice action, they must be dismissed").
Here, guardian Mishael Pine, Esq. retained Defendant Weiner Law Group to represent Mr. Curtis in two pending litigations. Mr. Curtis' unjust enrichment claim concerns the same subject matter and seeks the same damages as his breach of contract claim and breach of fiduciary duty/legal malpractice claims. As a result, Mr. Curtis' unjust enrichment cause of action is duplicative and must be dismissed.
Plaintiff Fails to State a Cause of Action for an Accounting
The elements of an equitable accounting are (1) a fiduciary or confidential relationship, (2) money or property entrusted to the defendant imposing the burden of an accounting, (3) the absence of a legal remedy and (4) in some cases, a demand and a refusal. Metro. Bank & Tr. Co. v. Lopez, 189 A.D.3d 443, 446 (1st Dept. 2020). Related to the third element, an equitable accounting claim cannot coexist with a breach of contract claim covering the same subject matter and, thus, must be dismissed. CBI Cap. LLC v. Mullen, No. 19 CIV. 5219 (AT), 2020 WL 4016018, at *7 (S.D.NY 2020), appeal dismissed (2021); see, e.g., Physicians Mut. Ins. Co. v. Greystone Servicing Corp., No. 07 CIV. 10490 (NRB), 2009 WL 855648, at *11 (S.D.NY 2009) (noting that although the relief sought by the accounting claim was different from the monetary damages sought by the other claims, the accounting claim still arose from the same operative facts as plaintiff's breach of contract claim and, thus, must be dismissed; also citing New York law that existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter); see also, Regan v. Conway, No. 07CV3207ADSARL, 2009 WL 10708790, at *9 (E.D.NY 2009) (dismissing equitable accounting claims where parties sought money damages in breach of contract and conversions claims, noting that by having legal claims available to them they would be entitled to legal damages, i.e., the recovery of money, and/or discovery to obtain all the information they sought).
Here, the accounting cause action arose from the same operative facts as each of the other causes of action did. Furthermore, there was an express contract governing the legal services provided. As a result, Mr. Curtis' cause of action for an equitable accounting must be dismissed.
Additionally, Mr. Curtis' request for relief exceeds the bounds of an equitable accounting as it relates to the "Brooklyn Property," which was the subject real estate in the Phillip litigation. The Defendants were not owners, partners, trustees, escrowees, etc., in the Brooklyn Property, nor were they receivers tasked with owning it or operating it for a period of time; instead, the Defendants were merely attorneys tasked with protecting the Plaintiffs' rights in the Brooklyn Property via the Phillip litigation. Thus, the Brooklyn Property, itself, was not entrusted to the Defendants for purposes of satisfying the second element of an equitable accounting.
Further, Mr. Curtis cannot satisfy the fourth element of a common law accounting (a prior demand and refusal), even if he had alleged that element, due to the presence of Defendant Weiner Law Group's common law retaining lien. The fiduciary relationship between the parties here was an attorney-client relationship. An attorney's rendition of services and expenditure of disbursements on behalf of a client entitles that attorney to a common law retaining lien on any of the client's books, papers, money and securities which have come to the attorney's possession in the course of employment. Steves v. Serlin, 125 A.D.2d 780, 781 (3d Dept. 1986); People v. Keeffe, 50 N.Y.2d 149, 156 (1980). The retaining lien attaches to all documents and records in the attorney's possession, even those records provided by the client and not considered to be attorney work product. Dayan v. Dayan, 58 Misc.3d 957, 964 (Sup. Ct. 2017). The retaining lien remains in force until the client's account is paid in full, irrespective of the outcome of the litigation involved. Steves, 125 A.D.2d at 781. As stated above, this Court has previously determined that the Mr. Curtis owed Defendant Weiner Law Group the outstanding amount of $89,312.43. Until that sum is paid to Defendant Weiner Law Group, the retaining lien remains in force and Plaintiff is not entitled to the return of his file or records upon his demand.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendant's motion to dismiss is granted, and that Verified Complaint verified on December 18, 2019 and dated December 19, 2019 is dismissed in its entirety.