Opinion
14877-06.
Decided November 17, 2009.
In this action to recover fees for legal services allegedly rendered by the plaintiff, the defendant moves for summary judgment dismissing the complaint.
The defendant originally moved to dismiss the plaintiff's complaint pursuant to CPLR 3211 (a) (1), (3), (5) and (7). In addition, defendant also sought dismissal pursuant to the first and second affirmative defenses contained in his answer. Although not properly noticed, to the extent that the motion sought dismissal based on the affirmative defenses, in effect, it sought (albeit, improperly) summary judgment. By interlocutory order dated August 27, 2009, the court denied the branches of defendant's motion to dismiss pursuant to CPLR 3211 (a) (1), (3) and (5). Furthermore, considering the allegations and arguments raised in connection with the defendant's request for relief under CPLR 3211(a)(7), and their similarity to the allegations and arguments raised in support of the improperly noticed request for summary judgment, the court elected to treat the remaining branches of defendant's motion as seeking summary judgment (CPLR 3211 (c)). The court also provided the parties with the opportunity to submit supplemental papers, which have been referenced and considered herein.
Upon consideration of the parties' original submissions, together with all supplemental submissions properly before the Court, the remaining branches of defendant's motion to dismiss are denied. In this regard, the defendant failed to establish, as a matter of law, that the services rendered by the plaintiff were done in violation of Judiciary Law § 478. The following discussion is relevant to this analysis.
Initially, it is noted that the parties dispute the nature and existence of the alleged oral agreement upon which plaintiff's action is grounded ( see Affidavit in Support of Motion to Dismiss the Complaint, [annexed to the Notice of Motion] at p. 3, ¶ 5; Affidavit in Opposition to Defendant's Motion to Dismiss at p. 2, ¶ 5). Such dispute alone would require denial of the defendant's motion. However, even assuming that the existence of the alleged oral agreement was not in dispute, for the reasons set forth herein the motion must be denied.
Defendant contends that plaintiff seeks compensation for services which constitute the unauthorized practice of law, in violation of Judiciary Law § 478. It is axiomatic that a contract to provide legal services rendered in violation of Judiciary Law § 478 is unenforceable as a matter of public policy ( El Gemayel v Seaman 72 NY2d 701, 705). As the transaction itself would be illegal, recovery in quantum meruit would also be impermissible ( Spivak v Sachs, 16 NY2d 163, 168).
It is uncontroverted that plaintiff is a citizen of Israel, who is "admitted to practice law in Israel" (Defendant's Affidavit in Support at p. 7, ¶ 25), and that plaintiff has never been licensed to practice law in New York. It is not contended that plaintiff ever represented to the defendant that he was authorized to practice law in this state. Rather, the defendant alleges that the parties were close friends before the instant dispute arose, that they had known each other for approximately thirty years and that he was aware of plaintiff's admission to practice law in Israel, and also that plaintiff failed the New York State Bar exam (Defendant's Affidavit in Support at p. 7 ¶¶ 22-25).
In response, plaintiff avers that the legal services he rendered involved "an international law transaction" (Plaintiff's Memorandum of Law a p 2), and that "the majority of work performed by * * * [him] took place in his Israeli offices" (Affirmation in Opposition at p. 4, ¶ 16). Plaintiff, moreover, vehemently denies that the transactions at issue involved the practice of law in New York (Affidavit in Opposition to Defendant's Motion to Dismiss at pp 1, 2).
In El Gemayel, which involved a breach of contract action arising from the failure to pay for legal services rendered by an attorney admitted to practice in a foreign jurisdiction, but not in New York, the Court held:
Judiciary Law § 478 provides: "It shall be unlawful for any person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner * * * without having first been duly and regularly licenced and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." Its purpose is to protect the public in this State from "the dangers of legal representation and advice given by persons not trained, examined and licenced for such work, whether they be laymen or lawyers from other jurisdictions" ( Spivak v Sachs, 16 NY2d, at 168 supra [construing former Penal Law § 270, the predecessor of Judiciary Law § 478]). As a matter of public policy, a contract to provide services in violation of the statute is unenforceable in our State courts ( Spivak v Sachs, 16 NY2d, at 168, supra; see also, McConnell v Commonwealth Pictures Corp., 7 NY2d 465). Moreover, violation of Judiciary Law § 478 is a misdemeanor (Judiciary Law § 485) and its provisions also may be enforced in civil actions by the Attorney-General or a bar association formed in accordance with the laws of this State (Judiciary Law § 476-a).
It is settled that the "law" contemplated by Judiciary Law
§ 478 includes foreign as well as New York law ( Matter of New York County Lawyers Assn. [Roel], 3 NY2d 224). In Roel, we held that former Penal Law § 270, the predecessor of Judiciary Law § 478, prohibited the activities of a Mexican attorney who admittedly practiced foreign law in his New York office by advising members of the public on Mexican law ( Matter of New York county Lawyers Assn. [Roel], 3 NY2d, at 230, supra). The practice of Lebanese law likewise falls within the purview of the statute. The issue, however, is whether plaintiff's activities in New York appropriately can be considered the practice' of Lebanese law.
The "practice" of law reserved to duly licensed New York
attorneys includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer ( Spivak v Sachs, 16 NY2d, at 166, supra; People v Alfani, 227 NY 334). Additionally, such advice or services must be rendered to particular clients ( Matter of New York county Lawyers Assn. v Dacey, 21 NY2d 694, revg on dissenting opn below 28 AD2d 161 [publishing a book on "How to Avoid Probate" does not constitute the unlawful practice' of law]) and services rendered to a single client can constitute the practice of law ( Spivak v Sachs, 16 NY2d 163, supra).
Spivak held that a California attorney engaged in the unlawful practice of law by assisting an acquaintance in New York with her divorce. In so doing, the California attorney became substantially involved in the client's New York affairs
— spending 14 days in New York attending meetings, reviewing drafts of a separation agreement, discussing the client's financial and custody problems recommending a change in New York counsel and, based on his knowledge of New York and California law, rendering his opinion as to the proper jurisdiction for the divorce action and related marital and custody issues ( id., at 167). While holding that these activities plainly constituted the "practice" of law, we also recognized that the statute (then Penal Law § 270) should not be construed to prohibit customary and innocuous practices." We noted that: "recognizing the numerous multi-State transactions and relationships of modern times, we cannot penalize every instance in which an attorney from another State comes into our State for conferences or negotiations relating to a New York client and a transaction somehow tied to New York" ( Spivak v Sachs, 16 NY2d, at 168, supra [citations omitted]).
Here, unlike Spivak, plaintiff's contacts with New York were, as supreme Court found, incidental and innocuous. Although plaintiff engaged in substantial litigation in Lebanon, where he was licensed, and even arguably provided legal services while in Washington D.C., and Massachusetts, his contact with New York consisted entirely of phone calls to defendant and her daughter Mary in New York in which they discussed the progress of the legal proceedings in Lebanon. There was but a single visit to Phoenix, New York, after the successful completion of his legal services. We conclude that, in the circumstances of this case, phone calls to New York by plaintiff, an attorney licenced in a foreign jurisdiction, to advise client of the progress of legal proceeding in that foreign jurisdiction, did not, without more, constitute the "practice" of law in this State in violation of Judiciary Law § 478. ( Accord, Gonzalez y Barredo v Schenck, 287 F Supp 505, 525, revd on other grounds 428 F2d 971.) To adopt a per se rule such as advanced by defendant would impair the ability of New York residents to obtain legal advice in foreign jurisdictions on matters relating to those jurisdictions since the foreign attorneys would be unable to recover for their services unless they were licensed both in New York as well as in the foreign jurisdiction.
Applying these principles to the instant motion, it was incumbent upon defendant to demonstrate not only that plaintiff engaged in the practice of law, but that he did so from a New York location.
As to whether the plaintiff engaged in the practice of law, it is noted that the complaint, which is verified by counsel, is replete with allegations to the effect that plaintiff contracted with "defendants" (sic), a New York resident and a "New York Company," to provide "legal services" at an agreed-upon rate. It is also repeatedly alleged in the pleading that plaintiff did, in fact, provide "legal services", and that plaintiff's claim arises from the failure to pay "legal fees" for the "legal services" rendered. In particular, the complaint states that "the defendants and plaintiff entered into an oral agreement" for "legal services" to be billed at a rate of $75.00 per hour, and that "plaintiff represented the defendants in these various and sundry matters including but not limited to representation in the sale of Alfa Medical Company, mediation of disputes between two owners of Alfa Medical Company, advising the legality of product placement under the FDA, reviewing contracts, and immigration matters, for nine months and plaintiff has yet to be paid" (Exhibit "A" to the Notice of Motion at ¶ 5).
The entire action, therefore, including each transaction separately listed in the complaint "for a fourth cause of action," involves a claim for unpaid "legal fees" for "legal services" rendered to a particular client or clients. This conclusion is supported by reference to the invoice sent to the defendant by the plaintiff, which begins: "Re: Legal Fees for the period of 9 months commencing February 2003 ending November 2003, working for you and Alfa" (Defendant's Affidavit in Support at p 16, ¶ 79; Exhibit "X" to the Notice of Motion). Thus, the fact that the plaintiff engaged in the practice of law is not in dispute.
With respect to the location where the alleged legal services were rendered, defendant asserts that he provided plaintiff with "room and board at my home in Great Neck [New York] while [plaintiff] attended to matters" during 2003, but then adds: "[h]owever, on this motion, I do not ask this court to accept my facts as true" (Defendant's Affidavit in Support at p 3, ¶ 5). This averment, casts serious doubt upon the probative value of the supporting affidavit, which, in any event, is deficient because it fails to particularize the dates and duration of plaintiff's presence in New York during the nine-month period at issue or to substantially tie such dates to the performance of particular legal services. As defendant claims to have provided plaintiff with "room and board" at his home during this period, it was necessary, on a summary judgment motion, for defendant to be specific as to the dates and duration of plaintiff's visits, particularly as defendant's submissions indicate that a significant portion of the legal services may have been performed by the plaintiff from his office in Israel.
Defendant's submissions reference an electronic communication he received from the plaintiff, which he claims "confirms [plaintiff's] intent to reside in my home during February 2003" (Defendant's Affidavit in Support at p 10, ¶ 41). He adds, in conclusory fashion, that sometime subsequent to June 11, 2003, "[plaintiff] from Israel, and while in New York, proceeded, on my behalf to act as my lawyer" (Defendant's Affidavit in Support at p 12, ¶¶ 53, 54), and states that "by" November 4, 2003, plaintiff wrote to an attorney from the defendant's home (Defendant's Affidavit in Support at p 13, ¶ 64). Defendant concludes that: "[w]ithout doubt, [plaintiff] was practicing New York law from New York" (Defendant's Affidavit in Support at p 13, ¶ 16), and that "[t]hrough November, 2003 until December 11, 2003, [plaintiff] remained resident in my Great Neck home" (Defendant's Affidavit in Support at p 15, ¶ 74). Defendant's only specific reference regarding legal work performed in New York is contained in an entry in an invoice sent to him by plaintiff, wherein plaintiff bills $1,350 dollars for "[m]eeting with attorney Saadia Shairo Esq. [i]n his office in Brooklyn, NY" (Defendant's Affidavit in Support at p 17, ¶ 84). Such reference, even without the defendant's problematic averment (discussed in text), is not sufficient to establish, in an otherwise unparticularized motion, that all services for which compensation is sought were rendered in New York. In this regard, it is noted that defendant's motion is addressed to the complaint as a whole, and is not aimed at any of the particular, itemized transactions set forth therein. Finally, the court notes that defendant submits a letter he alleges was sent by plaintiff to an attorney employed by the defendant, wherein plaintiff allegedly wrote: "Three out of the four months that the [Defendant and his wife] claim that I stayed with them were in direct connection with their own legal case" (Defendant's Affidavit in Support at p 17, ¶ 87; Exhibit "Z" to the Notice of Motion), whatever that means.
Given the deficiency in defendant's submissions regarding the location from which plaintiff performed the services at issue (even without defendant's averment that "on this motion, I do not ask this Court to accept my facts as true"), defendant has failed to demonstrate entitlement to judgment, as a matter of law, dismissing the complaint.
The court also rejects defendant's contention that "the defense of Statute of Frauds' is now before the Court on this recast motion for summary judgment" (Supplemental Affirmation in Support of Summary Judgment at p. 20). The conversion of defendant's CPLR 3211 (a) (7) motion into one for summary judgment, pursuant to CPLR 3211 (c), did not place such defense in issue. In this regard, the court notes that it denied the branch of defendant's motion to dismiss pursuant to CPLR 3211(a)(5) in its Interlocutory Order dated August 27, 2009. That order also indicated that the defendant failed to properly notice a request for dismissal based upon the "Eighth Affirmative Defense" in his answer ( see CPLR 2214 [a]). The court's Interlocutory Order, moreover, only permitted the defendant an opportunity "to serve and file reply papers", which cannot serve as a vehicle for raising requested relief or grounds not properly noticed in the original motion.
For the foregoing reasons, the remaining branches of defendant's motion to dismiss are, in all respects, denied.
This constitutes the decision and order of the court.