Opinion
No. 16155/05.
10-07-2015
Robert IANNUCCI, Sonia Ewers, Clocktower Properties and Team Obsolete Promotions, Inc., Plaintiff v. KUCKER & BRUH, LLP, Saul Bruh and Andrew Bittens, Defendants.
George Sava, Esq., Port & Sava, Lynbrook, NY, Attorney for Plaintiffs. Mark K. Anesh, Esq., Phillip J. Furia, Esq., New York, NY, Attorney for Defendants.
George Sava, Esq., Port & Sava, Lynbrook, NY, Attorney for Plaintiffs.
Mark K. Anesh, Esq., Phillip J. Furia, Esq., New York, NY, Attorney for Defendants.
FRANCOIS A. RIVERA, J.
On May 24, 2005, plaintiff commenced the instant action by filing a summons with notice. Sometime thereafter plaintiff served a verified complaint dated September 9, 2005, upon the defendants. By verified answer dated April 13, 2006, the defendants joined issue. Defendants verified answer did not interpose any counterclaims.
The verified complaint asserts the following salient facts, among others. In September 2002, Team Obsolete Promotions, Inc., which is owned by Robert Iannucci and Sonia Ewers, contracted with The Garden City Company (hereinafter GCC) to purchase 325 Gold Street, Brooklyn, New York (hereinafter the subject property).
On November 20, 2002, the closing date of the sale, GCC executed an assignment of all its interest in past due rent and all claims against past or future tenants of the subject property to Robert Iannucci and Sonia Ewers. On that date, the subject property was zoned for commercial and not residential use and had three of its seven floors illegally occupied by individuals for residential purposes. On that date, GCC already had ongoing eviction proceedings pending against the illegal residents of the subject property.
Sometime prior to November 20, 2002, the plaintiffs hired the defendants, who had been working for GCC at an hourly rate, to continue their ongoing eviction litigation for the subject property. The defendants Saul Bruh and Andrew Bittens are lawyers and partners in the law firm of Kucker and Bruh, LLP.
The first cause of action is for legal malpractice. The claim is based on the alleged failure to take prompt action when the defendants learned that several tenants had abandoned the premises or had divided their leaseholds without the consent of the owners. In addition, when the defendants became aware that the City of New York was in the process of changing the zoning status of the building and failed to take swift action. Plaintiffs' claim that as a result of defendants' dilatory behavior they lost substantial rental income.
The second cause of action is for an accounting and a refund. This claim is based on defendants' alleged over-billing for the legal work it performed.
On July 10, 2007, the Appellate Division Second Department issued a decision and order in the matter of Iannucci v. Kucker & Bruh LLP, 42 AD3d 436 [2nd Dept 2007]. The Appellate Court found that the plaintiffs had failed to state a cause of action for negligent misrepresentation and fraud in their third and fourth cause of action because they arose from the same facts as the legal malpractice cause of action and did not allege distinct damages. Consequently, the third and fourth cause of action were dismissed.
The fifth cause of action is for a refund. This claim is based on defendants' alleged over-billing for the legal work it performed in drafting "Three Day Notices" for non-payment of rent in connection with the ongoing eviction proceedings against the illegal residents.
LAW AND APPLICATION
Movants' motion to dismiss the legal malpractice claim
A motion for summary judgment may be granted only when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ; see also, Napolitano v. Suffolk County Dept. of Public Works, 65 AD3d 676 [2nd Dept, 2009] ; and Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept 2005] ). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v. Bell, 222 A.D.2d 547 [2nd Dept., 1995] ). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ).
To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinarily 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 (Duque v. Perez, 95 AD3d 937 [2nd Dept 2012] ). To establish the element of causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence (see Duque v. Perez, 95 AD3d 937 [2nd Dept 2012], citing Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d 566, 566 [2nd Dept 2011] ).
On a motion for summary judgment in the legal malpractice context, the defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (Duque v. Perez, 95 AD3d 937 [2nd Dept 2012], citing Greene v. Sager, 78 AD3d 777, 779 [2nd Dept 2010] ). If the defendant makes such a prima facie showing, the burden then shifts to the plaintiff to raise an issue of fact necessitating a trial (Duque v. Perez, 95 AD3d 937 [2nd Dept 2012], citing Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d at 567 [2nd Dept 2011] ).
Plaintiff seeks to hold the defendants responsible for the rental income that it lost by the inability to lease the units that were illegally occupied by the individuals who were the subject of pending eviction proceeding. Plaintiff's claim is that the pace of the defendants prosecution of evicting the illegal occupants resulted in the loss of the rental value of the those spaces. Plaintiff does not allege that tenants seeking to rent the illegally occupied units were known or actually existed prior to the eviction of the units in question.
The movants do not dispute that they were hired to represent the interest of the plaintiff in evicting the illegal tenants of the subject property. Nor do they dispute that the legal representation was at an hourly rate pursuant to an oral agreement. The thrust of their motion is that plaintiff is unable to prove that their legal representation proximately caused the plaintiff any ascertainable damage.
Indeed, plaintiff's claim of the loss of rental income from potential future tenants is based on speculation. Conclusory allegations of damage based on speculation are insufficient to support a legal malpractice claim (see Siwiec v. Rawlins, 103 AD3d 703 [2nd Dept 2013] ; see also, Bua v. Purcell & Ingrao, P.C., 99 AD3d 843 [2nd Dept 2012] ).
The movants have made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (Duque v. Perez, 95 AD3d 937 [2nd Dept 2012] thus shifting the burden to the plaintiff to raise a triable issue of fact.
Plaintiff's voluminous opposition papers merely repeat and reassert the same conclusory and speculative claims of lost rental income purportedly due to the movants allegedly slow prosecution of eviction proceedings. Plaintiff's opposition papers do not raise a triable issue of fact. Accordingly, plaintiff's first cause of action for legal malpractice is dismissed.
Movants' motion to dismiss the claims for alleged over-billing
The movants also seek summary judgment in their favor dismissing the second and fifth cause of action based on plaintiff's claims for an accounting and for a refund of the amount the defendants' over-billed the plaintiff for their legal representation. Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6 ) (Gary Friedman, P.C. v. O'Neil, 115 AD3d 792 [2nd Dept 2014] ). An attorney's failure to provide the client with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege that the client received such notice and did not file a timely request for arbitration, requires dismissal of the attorney's complaint (Id. ).
In the case at bar the movants did not assert any counterclaims against the plaintiff for outstanding legal fees. Nor did they raise a defense sounding in an account stated or in plaintiff's voluntary payment. Nor did they allege compliance with the requirements of 22 NYCRR 137.6 and 1215.1 or demonstrate that the provisions were inapplicable to the instant matter. Plaintiff does not dispute that it hired the defendants to perform legal services for its benefit at an hourly rate pursuant to an oral agreement. Nor does plaintiff dispute that the defendants performed legal services, that the services performed were accepted when rendered, and that the defendants expected compensation for the reasonable value of those services. Although there was no written contract for those services, these undisputed facts support defendants right to compensation pursuant to quantum meruit (see Balestriere PLLC v. BanxCorp., 96 AD3d 497 [1st Dept 2012] ).
In evaluating what constitutes a reasonable attorney's fee, factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability, and reputation, the amount involved, the customary fee charged for such services, and the results obtained (see In re Sucheron, 95 AD3d 892 [2nd Dept 2012] ). In making an award of attorney's fees the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered (NYCTL 1998–1 Trust v. Oneg Shabbos, Inc. 37 AD3d 789 [2nd Dept 2007] ). The movant has not provided evidence of the aforementioned factors necessary for assessing the reasonableness of the fees it charged the plaintiff. Accordingly, it has failed to make a prima facie showing of entitlement to dismissal of the second and fifth cause of action asserted against it premised on its alleged over-billing for the legal services provided.
CONCLUSION
The movant's motion for an order pursuant to CPLR 3212 dismissing the complaint is granted as to the first cause of action for legal malpractice and denied as to the second and fifth cause of action for a refund of alleged over-billing.
The foregoing constitutes the decision and order of this Court.