Opinion
Index No. 152213/2020 Motion Seq. Nos. 007 008
07-19-2023
ALEXANDRA KASMIN Plaintiff, v. BONNIE P. JOSEPHS, Defendant
Unpublished Opinion
DECISION + ORDER ON MOTION
NANCY M. BANNON, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 294, 296, 298, 310, 311, 312, 313, 314, 315, 316, 317, 318,319,320,321,322,324,325,326 were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 008) 246, 247, 248, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261,262, 263, 264, 265, 266, 267, 268, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 290, 291, 295, 297, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 323, 327, 328, 329, 331,332,333, 334 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
In this action to recover for, inter alia, breach of contract and legal malpractice arising from the representation of plaintiff, Alexandra Kasmin, by defendant, Bonnie Josephs, in a matrimonial action, defendant moves, pursuant to CPLR 3212 and 3211(a)(7), for summary judgment dismissing the Amended Complaint (MOT SEQ 007). Plaintiff opposes the motion and cross-moves, pursuant to 22 NYCRR 130-1.1, for the imposition of sanctions against defendant. Plaintiff also separately moves, pursuant to CPLR 3212, for summary judgment on her ninth cause of action for forfeiture of legal fees (MOT SEQ 008). For the reasons that follow, defendant's motion is granted in part, and plaintiffs motions are denied.
BACKGROUND
Plaintiff brings this action to recover damages and other relief from defendant, her former divorce attorney (see Amended Complaint, NYSCEF Doc. No. 4). The following facts are gleaned from the submissions of the parties.
Plaintiff and nonparty Paul Kasmin were married on May 15, 1992, and have two children (see NYSCEF Doc. No. 225, p. 7). The couple owned an apartment in Manhattan (id.). Mr. Kasmin, an art dealer, also operated a Manhattan art gallery, and owned several life insurance policies (id.).
In September 2011, plaintiff retained defendant to represent her in a matrimonial action against Mr. Kasmin pursuant to a written Retainer Agreement (see Retainer Letter, NYSCEF Doc. No. 222). Defendant, in turn, engaged third parties, including Randy Blaustein, an attorney, and Eisner Amper, a valuation firm, to assist in the matrimonial action (see Amended Complaint, supra).
During the matrimonial action, plaintiff and Mr. Kasmin entered into a Parenting Agreement, dated July 5, 2012 (see Judgment, NYSCEF Doc. No. 223). They also entered into two Settlement Stipulations: the first, made on December 16, 2014, was so-ordered on November 5, 2015 (the "2014 Settlement") (see NYSCEF Doc. No. 225); and the second, executed on September 12, 2018, was so-ordered on September 14, 2018 (the "2018 Settlement") (see NYSCEF Doc. No. 228). On February 8, 2019, the court (Katz, J.) granted plaintiff a judgment dissolving the marriage, which incorporated by reference the Parenting Agreement and the two Settlement Stipulations (see NYSCEF Doc. No. 223, supra).
The 2014 Settlement, which was placed on the record in open court, resolved the matrimonial action in its entirety except for the issue of Paul Kasmin's obligation to pay counsel and expert fees incurred by plaintiff in the divorce. Pursuant to the 2014 Settlement, Mr. Kasmin was required, inter alia, to pay plaintiff $3,858,250 as an equitable distribution award; an additional equitable distribution of $270,000, to be paid in installments of $7,500 per month for thirty-six (36) months; and a sum of $17,500 per month in spousal maintenance, to be paid for nine and one half years, through July 31, 2024, "during the joint life of the parties" (see NYSCEF Doc. No. 225, pp. 24-25, 38, 42-43). Plaintiff was also granted sole ownership of the couple's Park Avenue apartment, as well as artwork valued at approximately $1.95 million (see NYSCEF Doc. No. 226, p. 7). Plaintiff, in her allocution, stated that she understood the terms of the settlement in their entirety, believed that the settlement was fair and reasonable, and was satisfied with the services of her attorney (id., pp. 63-64).
Because the parties could not agree on plaintiffs claim for counsel fees, the court referred the matter to a Special Referee to hear and report with recommendations (see NYSCEF Doc. No. 226, p. 8). The Referee declined to recommend an award of counsel fees to plaintiff, stating that" [t]he principal reason for this recommendation is that I find that Plaintiff received sufficient money [more than $7 million in the 2014 Settlement] to pay for reasonable legal representation under the circumstances" (id., pp. 9, 15). Plaintiff moved to disaffirm the Referee's report, which motion was denied.
Following the 2014 Settlement there was no further litigation concerning spousal maintenance. However, Mr. Kasmin defaulted in paying the agreed-upon equitable distribution, resulting in motion practice to enforce the terms of the settlement. When those motions were denied, defendant prepared and perfected four consolidated appeals on plaintiffs behalf, which also challenged the denial of plaintiffs motion to disaffirm the Referee's report denying her application for attorneys' fees.
The 2018 Settlement resolved the enforcement issue, as well as the matter of the outstanding attorneys' fees to be paid by Mr. Kasmin. Under the 2018 Settlement, there was a further equitable distribution award consisting of Mr. Kasmin's assignment to plaintiff of two life insurance policies worth $4,997,367.64, which had been held in a Marital Trust (see NYSCEF Doc. No. 228, ¶ 21). The life insurance policies were assigned to plaintiff "in consideration of Plaintiff s consent to withdraw her pending appeals ... in which she seeks, inter alia, awards against [Mr. Kasmin] for her counsel fees and expert fees" (id., ¶ 23). However, the settlement stipulation expressly stated that, "Plaintiff and Defendant shall each pay his or her own counsel and expert fees incurred to date[,]" it being understood that "Plaintiffs obligation to pay her outstanding counsel fees and expert fees may be paid from the Plaintiffs receipt of. . . the insurance policies being assigned to [her]" pursuant to the settlement (id., ¶ 31).
The 2018 Settlement appointed defendant as both parties' escrow agent to distribute the monies paid by Mr. Kasmin (id., ¶¶ 9, 12). In that role, defendant distributed the escrowed funds received from Mr. Kasmin according to a written distribution schedule, which outlined the amounts to be distributed to plaintiff, as well as to defendant, Blaustein, and the Eisner Amper expert for payment of counsel fees and expert fees. However, the parties dispute the meaning and import of the distribution schedule with respect to the total amount of fees to be paid to defendant out of the escrowed funds. The distribution schedule, which is a typewritten document with handwritten corrections and notations, and which is signed by both plaintiff and defendant, appears to call for defendant to receive a total payment of $850,000, consisting of an initial payment of $600,000 followed by an additional $250,000 payment. However, plaintiff maintains that, in December 2017, through a series of emails or oral exchanges, the parties contracted for defendant to accept a discounted sum of $600,000 as full and final payment for her legal fees. Plaintiff further maintains that the distribution schedule for the escrowed funds contains separate signature lines for each portion of the payments to be made and that, consistent with the parties' discounted fee agreement, she only signed off on the initial $600,000 payment to defendant but refused to agree to the further $250,000 distribution.
Defendant denies that there was any agreement for her to accept a discounted fee and distributed the escrowed funds accordingly, continuing to make payments to herself beyond the initial $600,000 sum until, in early 2020, plaintiff challenged her entitlement to any further distribution of funds. Defendant further maintains that the legal fees paid to her out of the escrowed funds were only a portion of the total fees owed to her by plaintiff, and that approximately $ 1 million in unpaid fees remain outstanding.
Paul Kasmin died in March 2020. In May 2020, defendant commenced an action against plaintiff in Dutchess County to collect the unpaid fees she claims are owed to her. To secure her interest in the payment of these alleged unpaid fees, defendant filed a charging lien against plaintiffs Park Avenue apartment and a restraining notice and charging lien against the proceeds of the life insurance policies assigned to plaintiff in the 2018 Settlement. Pursuant to a stipulation executed between defendant and AXA Equitable Life Insurance Company ("AXA"), $1.5 million in life insurance proceeds were placed in escrow to satisfy defendant's charging lien pending resolution of the Dutchess County fee action, and the balance of the proceeds were released to plaintiff.
Defendant released her charging lien against plaintiff's apartment upon execution of the stipulation with AXA.
Plaintiff commenced this action by filing of a Summons and Complaint in February 2020. She thereafter filed an Amended Complaint in June 2020. Plaintiff alleges fifteen causes of action, numbered here as in the Amended Complaint, for: (1) breach of contract; (2) promissory estoppel; (3) legal malpractice; (4) violation of Judiciary Law § 487; (5) breach of fiduciary duty; (6) conversion; (7) slander of title; (8) declaratory judgment; (9) forfeiture of legal fees; (10) abuse of process; (11) violation of UCC 9-625 ; (12) wrongful restraining notice; (13) prima facie tort; (14) tortious interference with contract; and (15) an accounting (see Amended Complaint, supra).
Plaintiff claims that defendant, in litigating the matrimonial action, filed multiple frivolous motions, defied discovery orders, and engaged in dilatory tactics, all as part of a strategy to generate excessive legal fees. Plaintiff also claims that defendant retained third parties to perform unnecessary work in the matrimonial action and encouraged those third parties to seek additional fees from plaintiff to which they were not entitled. Plaintiff further claims that defendant was negligent in memorializing and explaining the terms of her settlement with Mr. Kasmin. Plaintiff insists that the parties to the matrimonial action intended that plaintiff would receive the monthly spousal support payments of $17,500 through July 31, 2024, regardless of Mr. Kasmin's intervening death, but that defendant agreed to erroneous language in the 2014 Settlement, causing Mr. Kasmin's estate to stop making those payments after his death.
Plaintiff also claims that, in December 2017, defendant agreed to reduce her fees and accept $600,000 as payment for her services in the matrimonial action. Plaintiff contends that the parties memorialized this fee reduction agreement in a series of emails and asserts that she relied upon this fee reduction in consenting to the terms of the 2018 Settlement. She further claims that defendant breached this agreement by seeking payment of fees in excess of the allegedly agreed-upon $600,000 sum.
Plaintiff similarly maintains that from October 2019 to May 2020, defendant, as escrow agent, misappropriated funds from the escrow account set up pursuant to the 2018 Settlement to pay herself legal fees in excess of the $600,000 sum the parties agreed upon. And she further claims that the charging liens fded by defendant against her home and insurance policies were improper and meant to harass her into paying additional fees.
Defendant now moves, pursuant to CPLR 3212 and 3211(a)(7), for summary judgment dismissing the Amended Complaint. Plaintiff opposes the motion and cross-moves for sanctions. Plaintiff also separately moves for summary judgment pursuant to CPLR 3212 on her ninth cause of action for forfeiture of legal fees. Defendant opposes both of plaintiffs motions.
LEGAL STANDARD
When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR 3211(a)(7), the court's role is "to determine whether [the] pleadings state a cause of action." 511 W. 232nd Owners Corp, v Jennifer Realty Co., 98 N.Y.2d 144, 151-52 (2002). To determine whether a claim adequately states a cause of action, the court must "liberally construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable inference," and determine only whether the facts, as alleged, fit within any cognizable legal theory. Id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 (2013); Simkin v Blank, 19 N.Y.3d 46 (2012); Hurrell-Harring v State of New York, 15 N.Y.3d 8 (2010); Leon v Martinez, 84 N.Y.2d 83 (1994). "The motion must be denied if from the pleading's four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 W. 232nd Owners Corp, v Jennifer Realty Co., supra, at 152 (internal quotation marks omitted); see Leon v Martinez, supra; Guggenheimer v Ginzburg, 43 N.Y.2d 268 (1977). A motion pursuant to CPLR 3211(a)(7) may be made at any time. See CPLR 3211(e).
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any triable issues of fact. See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). In opposition, the nonmoving party must demonstrate by admissible evidence the existence of a triable issue of fact. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v City of New York, 49 N.Y.2d 557 (1980). However, if the initial burden is not met by the movant, summary judgment must be denied regardless of the sufficiency of the opposing papers. See Winegrad v New York Univ. Med. Ctr., supra; Giaquinto v Town of Hempstead, 106 A.D.3d 1049 (2d Dept. 2013); O'Halloran v City of New York, 78 A.D.3d 536 (1st Dept. 2010). In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. See Branham v Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931 (2007). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment. Zuckerman v City of New York, supra.
DISCUSSION
A. Breach of Contract
Defendant contends plaintiffs breach of contract claim ignores the existence of the written Retainer Agreement executed by the parties. Defendant further asserts that any discussion of reduced legal fees occurred in the context of the then-ongoing divorce action and pertained solely to the portion of defendant's total fees that Paul Kasmin would pay to plaintiff as part of a contemplated settlement, but was never meant to forgive plaintiffs obligation to pay the remainder of defendant's fees. Defendant also argues that the legal services she rendered to plaintiff during the matrimonial action did not end on December 6, 2017, but continued through 2019, such that any purported discussion of a reduced fee in December 2017 was at most an offer that no longer remained in effect.
A binding contract requires "a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms." Stonehill Cap. Mgmt., LLC v Bank of the W, 28 N.Y.3d 439, 448 (2016) (internal citations and quotation marks omitted). Here, the parties' submissions include, among other things, a series of emails exchanged in December 2017 outlining a proposed fee reduction schedule for defendant's services. In an email sent by defendant to plaintiff and plaintiffs financial advisor, James Manfredonia, on December 3, 2017, defendant sets forth a "tentative" fee schedule incorporating a "proposed reduction" that includes payment to defendant in the amount of $600,000 (see NYSCEF Doc. No. 269). This was followed by another email from defendant to plaintiff and Manfredonia on December 6, 2017, in which defendant states that she has "agreed to allow [plaintiff] a reduction to $600,000 from the $1,000,000" in total fees invoiced to that point, "plus 50,000 (for the appeal); plus the $25,000 loan [referring to a loan taken by defendant 'because of cash flow problems . . . directly related to the missing Kasmin fee funds']" (see NYSCEF Doc. No. 270). Manfredonia responded the same day, writing "[g]ot it -thank you" (id.), which plaintiff points to as evidence of acceptance.
Viewing the evidence in the light most favorable to plaintiff, the parties' submissions suffice to raise a triable issue of fact as to whether defendant agreed to accept a reduced payment of $600,000 from plaintiff for services rendered through December 2017. Consequently, the branch of defendant's motion that seeks summary judgment dismissing the first cause of action for breach contract is denied.
B. Promissory Estoppel
The second cause of action for promissory estoppel must be dismissed. The claim is premised on plaintiffs contention that, in agreeing to the terms of the 2018 Settlement, she reasonably relied on the alleged fee reduction agreement with defendant. As such, the claim is barred by the alleged existence of the fee reduction agreement. See ID Beauty S.A.S. v Coty Inc. Headquarters, 164 A.D.3d 1186, 1186 (1st Dept. 2018) (promissory estoppel claim is barred by the alleged existence of a contract); Susman v Commerzbank Capital Mkts. Corp., 95 A.D.3d 589, 590 (1st Dept. 2012) (same).
C. Legal Malpractice
The third cause of action, for legal malpractice, must also be dismissed. A claim for legal malpractice requires proof that defendant failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community; that such negligence was the proximate cause of the actual damages sustained by plaintiff; and that, but for defendant's negligence, plaintiff would have been successful in the underlying action. Cummings v Donovan, 36 A.D.3d 648 (2d Dept. 2007).
Plaintiff outlines a litany of defendant's alleged acts and omissions that she contends fell far below the level of skill and knowledge reasonably expected from an ordinary member of the legal community. Plaintiff claims, in essence, that defendant engaged in frivolous motion practice and delay tactics to generate sizable legal fees; improperly retained third parties to perform unnecessary and harmful services; failed to secure continued spousal maintenance payments to her from Paul Kasmin's estate; failed to advise plaintiff to obtain an appropriate financial instrument to protect her right to spousal maintenance; failed to protect plaintiffs assets from depletion by legal fees incurred in the matrimonial action; and improperly waived plaintiffs right to recover certain fees. Plaintiff asserts that, but for these alleged acts and omissions, she would have recovered more from Mr. Kasmin than she did in the underlying matrimonial action.
Notably, plaintiff relies on substantially the same allegations of misconduct in support of her motion for summary judgment on her ninth cause of action seeking forfeiture of fees already paid to defendant.
To be sure, a legal malpractice claim is viable, despite settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel. Bernstein v Oppenheim & Co., 160 A.D.2d 428, 430 (1st Dept. 1990). Here, however, the evidence demonstrates that plaintiff knowingly and voluntarily settled the matrimonial action after lengthy negotiations. In particular, during her allocution in connection with the 2014 Settlement, which resolved the underlying litigation with respect to spousal maintenance, plaintiff acknowledged that "the terms of the stipulation had been discussed and negotiated over a period of time"; she understood the terms of the settlement in their entirety; she believed the settlement was "fair and reasonable"; and she was satisfied with the services of her attorney. This evidence clearly contradicts plaintiffs claim. See Katebi v Fink, 51 A.D.3d 424, 425 (1st Dept. 2008) (affirming dismissal of legal malpractice claim based on plaintiffs allocution testimony that she knowingly and willingly entered into the settlement of the underlying matrimonial action and was satisfied with her attorney's services).
Moreover, plaintiffs contention that defendant was negligent in memorializing the terms of the 2014 Settlement by failing to secure the continuation of spousal maintenance payments in the event of Mr. Kasmin's death lacks evidentiary support. The termination of spousal maintenance payments upon the death of either of the divorcing parties is provided for in New York's Domestic Relations Law ("DRL") § 236 ("an award of maintenance shall terminate upon the death of either party"). Plaintiff proffers no evidence demonstrating an agreement to depart from the requirements of DRL § 236, that such a departure was ever contemplated, or that Mr. Kasmin would have agreed to such a departure had it been proposed. To the contrary, the evidence shows that, consistent with DRL § 236, Mr. Kasmin's attorney, in stipulating to the terms of the 2014 Settlement in open court, expressly stated that the payment of spousal maintenance would continue "during the joint life of the parties."
Insofar as plaintiffs claim is premised on defendant's alleged excessive billing and related conduct, such actions, standing alone, do not state a claim for legal malpractice. See Chowaiki & Co. Fine Art v Lacher, 115 A.D.3d 600, 601 (1st Dept. 2014).
The fourth cause of action for violation of Judiciary Law § 487 is also dismissed. Relief under this statute "is not lightly given" (Chowaiki & Co. Fine Art, supra), and requires a showing of "egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys" that caused damages (Savitt v Greenberg Traurig, LLP, 126 A.D.3d 506, 507 [1st Dept. 2015]). "Allegations regarding an act of deceit or intent to deceive must be stated with particularity," and "the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient." Facebook, Inc, v DLA Piper LLP (US), 134 A.D.3d 610, 615 (1st Dept. 2015) (internal citation omitted).
Plaintiff fails to allege that defendant acted "with intent to deceive the court or any party" (Judiciary Law § 487[ 1 ]), and her allegation that defendant "willfully engaged in self-serving dilatory tactics . . . designed to impede timely resolution of [the] matrimonial action with a view to [defendant's] own gain," is a bare legal conclusion that "is not entitled to the presumption of truth normally afforded the allegations of a complaint" (Fleyshman v Suckle & Schlesinger, PLLC, 91 A.D.3d 591, 593 [2d Dept. 2012]). Nor does plaintiff proffer evidence to bear out her claim. The only evidence plaintiff cites are portions of various decisions from the underlying matrimonial action admonishing defendant for filing excessive, repetitive, and unmeritorious motions. None of these decisions, though, found that defendant willfully engaged in such conduct with a view to her own gain. Nor does plaintiff point to any other evidence in the record that tends to show such willful conduct.
To the contrary, the evidence presented tends to show that defendant zealously-perhaps over-zealously-represented plaintiffs interests in the underlying litigation. Plaintiff testified at her deposition that she was pleased with the settlement obtained for her by defendant, had praised defendant's efforts on her behalf, and had referred some of her friends to defendant. Plaintiff further testified that she reviewed, and did not dispute, defendant's invoices throughout the underlying litigation; that defendant kept her apprised of the litigation, explained the strategy followed, and informed her of all motions filed on her behalf. Plaintiff further testified that she believed her ex-husband had attempted to conceal certain assets during discovery in the underlying litigation, that she wanted defendant to uncover those assets, and that defendant's efforts in that regard were necessary and not a waste of time. Plaintiff likewise conceded that the various motions made by defendant on her behalf were necessary and generally meritorious, notwithstanding that they were ultimately denied, including the motions and appeals filed to enforce the 2014 Settlement, which plaintiff believed to be "correct." And, in stark contrast to the allegation that defendant's aim was to squeeze plaintiff for excessive fees, plaintiff testified that it was defendant who, unprompted, initiated the proposal to discount her fees.
E. Breach of Fiduciary Duty
To succeed on a claim for breach of fiduciary duty, plaintiff must establish the existence of a fiduciary relationship, misconduct by defendant, and damages caused by defendant's misconduct. See Rut v Young Adult Inst., Inc., 74 A.D.3d 776, 777 (2d Dept. 2010). A claim for breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b). See Palmetto Partners, L.P, v AJW Qualified Partners, LLC, 83 A.D.3d 804, 808 (2d Dept. 2011).
Plaintiff essentially alleges that defendant, as attorney and escrow agent, breached a fiduciary duty to her by misappropriating escrow funds; encouraging Blaustein and Eisner Amper to seek fees that were fully paid; repeatedly filing wrongful liens and serving a wrongful garnishment notice; over-billing; causing third parties to over-bill; failing to protect plaintiffs right to receive spousal maintenance; and refusing to resign as escrow agent. In addition to being duplicative of the claims for legal malpractice and breach of contract (see Fin. Servs. Vehicle Tr. v Saad, 72 A.D.3d 1019, 1020 [2d Dept. 2010]), the claim for breach of fiduciary duty lacks the specificity required by CPLR 3016(b). Further, the pleading fails to detail the injury to plaintiff caused by defendant's alleged conduct (see Rut v Young Adult Inst., Inc., supra). Thus, the claim for breach of fiduciary duty is dismissed.
F. Conversion
Plaintiffs claim for conversion is dismissed as duplicative of the claim for breach of contract. Plaintiff alleges she has a right of possession over the funds to be distributed to her as equitable distribution under the settlement agreements in the matrimonial action; that defendant had a duty to properly distribute these funds; defendant exercised unauthorized dominion over these funds; and that defendant paid herself at least $150,000 out of these funds. These allegations essentially mirror the allegations underlying the claim for breach of contract, which similarly assert that defendant, having already received the entirety of her reduced fee, breached the alleged fee reduction agreement by improperly paying herself the same $150,000 out of the escrow funds. See Richbell Info. Servs., Inc, v Juniper Partners, L.P., 309 A.D.2d 288, 306 (1stDept. 2003).
G. Slander of Title
The claim for slander of title is also dismissed. A claim for slander of title requires proof of a communication falsely casting doubt on the validity of plaintiffs title, reasonably calculated to cause harm, and resulting in special damages. See Brown v Bethlehem Terrace Assoc., 136 A.D.2d 222, 224 (3d Dept. 1988). Plaintiff claims defendant fded wrongful liens on her apartment and the life insurance policies she was assigned pursuant to the 2018 Settlement, without court approval and in excess of the amount plaintiff purportedly owed to defendant for outstanding legal fees. However, plaintiffs claim is conclusively refuted by the stipulation, dated June 30, 2020, that defendant executed with AXA stating that defendant filed a charging lien with AXA for attorney's fees reportedly owed by plaintiff (see Stipulation, NYSCEF Doc. No. 242).
"A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client's cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client." Chadbourne & Parke, LLP v AB Recur Finans, 18 A.D.3d 222, 223 (1st Dept. 2005) (internal citations omitted). "Under Judiciary Law § 475, a charging lien automatically comes into existence, without notice or filing, upon commencement of the action, and is measured by the reasonable value of the attorney's services in the action." Resnick v Resnick, 24 A.D.3d 238, 239 (1st Dept. 2005). In a matrimonial action, "[a] charging lien is . . . available to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client." Moody v Sorokina, 50 A.D.3d 1522, 1523 (4th Dept. 2008) (internal quotation marks omitted).
Here, defendant acquired a valid charging lien based on the new funds created during the divorce litigation by plaintiffs acquisition of sole ownership of the marital residence (2014 Settlement) and the assignment to plaintiff of the insurance policies on Mr. Kasmin's life (2018 Settlement). Defendant was within her rights to file this lien once a dispute arose concerning plaintiffs (non)payment of the balance of the legal fees that defendant claims are owed to her. Accordingly, the claim for slander of title must fail.
H. Violation of UCC 9-625 &Wrongful Restraining Notice
The claims for violation of UCC 9-625 and wrongful restraining notice, based on the allegation that defendant asserted invalid and illegal liens and UCC-1 financing statements, is likewise dismissed as duplicative of the claim for slander of title.
I. Declaratory Judgment
The claim for a declaratory judgment is also dismissed. "A cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract." Apple Rees., Inc, v Capitol Rees., Inc., 137 A.D.2d 50, 54 (1st Dept. 1988); see 204 Columbia Heights, LLC v. Manheim, 148 A.D.3d 59, 71 (1st Dept. 2017) (dismissing declaratory judgment claim as unnecessarily redundant of breach of contract claim).
Plaintiff seeks a declaration that defendant has been paid in full; that the purported liens on plaintiffs New York City residence and insurance policies are invalid and unenforceable; and that the restraining notice served on the insurer is invalid and without force or effect. This claim is dismissed as duplicative of plaintiffs breach of contract claim.
J. Forfeiture of Legal Fees
In seeking summary judgment on the claim for forfeiture of legal fees, plaintiff insists that defendant is not entitled to legal fees because she was terminated for cause based on multiple instances of alleged misconduct. The claim is predicated on the same allegations as the claims for legal malpractice, breach of contract, and breach of fiduciary duty, namely that defendant engaged in multiple instances of misconduct while representing plaintiff in the matrimonial action and thereafter in her administration of the escrow account for the settlement funds received from Mr. Kasmin. However, while plaintiff points to a number of court orders critical of defendant's conduct during the matrimonial action, the submissions do not reveal any actual finding of malpractice. The conclusory assertion that defendant was terminated for cause is insufficient. Moreover, plaintiffs claim is deficient insofar as it is premised on alleged misconduct that post-dates the settlement of the matrimonial action, because "[a] lawyer forfeits his entire fee due to misconduct only where the misconduct relates to the representation for which the fees are sought." Decolator, Cohen & DiPrisco, LLP v Lysaght, Lysaght & Kramer, P.C., 304 A.D.2d 86, 91 (1st Dept. 2003). As such, plaintiff fails to establish entitlement to judgment as a matter of law on her claim for forfeiture of legal fees (see Mecca v Shang, 258 A.D.2d 569, 570 [2d Dept. 1999]), and her motion for summary judgment on said claim is therefore denied. Further, the claim for forfeiture of legal fees is dismissed as duplicative of the legal malpractice, breach of contract, and breach of fiduciary duty claims. See id. (holding that plaintiffs "cause of action for disgorgement of legal fees must also be dismissed since it [] is predicated upon the same factual allegations as the malpractice claim, and seeks damages which may be recovered on that cause of action").
K. Abuse of Process
The claim for abuse of process is also dismissed. A claim for abuse of process requires, inter alia, proof of an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective. See Curiano v Suozzi, 63 N.Y.2d 113, 116 (1984). Plaintiff claims that defendant's use of process, including the filing of liens, UCC financing statements, and a garnishment notice, was abusive because it was allegedly undertaken solely as a means of harassment. However, the evidence demonstrates that these actions were all undertaken as part of defendant's attempt to collect the unpaid legal fees she believes are owed to her-a legitimate economic justification-and there is no evidence of any other, collateral objective. See Roberts v Pollack, 92 A.D.2d 440, 444-45 (1st Dept. 1983).
L. Prima Facie Tort
The claim for prima facie tort is also dismissed. A claim for prima facie tort requires proof of intentional infliction of harm; causing special damages; without excuse or justification; by an act or series of acts that would otherwise be lawful. See Curiano v Suozzi, supra at 117. Plaintiff asserts that defendant intentionally harmed her by using invalid, unlawful, and excessive liens, UCC financing statements, and a garnishing notice. However, as just discussed, defendant sufficiently establishes that she filed these instruments for the justifiable purpose of securing payment for legal services in the underlying matrimonial action, and not because of any malice or "disinterested malevolence." See Plummer v Bender, 233 A.D.2d 204, 205 (1st Dept. 1996).
M. Tortious Interference with Contract
The claim for tortious interference with contract is similarly dismissed. A claim for tortious interference with contract requires proof of the existence of a valid contract between plaintiff and a third party; defendant's knowledge of that contract; defendant's intentional procuring of a breach thereof; and damages. See Foster v Churchill, 87 N.Y.2d 744, 749-50 (1996). Plaintiff alleges defendant interfered with her contractual relationships with AXA, Blaustein, and Eisner Amper. However, defendant has demonstrated that there has been no breach of any contract with these parties, let alone one intentionally procured by defendant. Moreover, plaintiff does not raise any triable issues of fact to rebut evidence that the conduct constituting the alleged interference had economic justification. See White Plains Coat & Apron Co. v Cintas Corp,, 8 N.Y.3d 422, 426 (2007) (economic justification is a defense to a tortious interference claim); Torrenzano Group, LLC v Bumham, 26 A.D.3d 242, 243 (1st Dept. 2006).
N. Accounting
The claim for an accounting is also dismissed. The parties' submissions demonstrate that defendant provided plaintiff all bank statements referable to the escrow account during pre-trial discovery. Plaintiff does not dispute this or offer any argument in opposition to the dismissal of this claim. The claim for an accounting is therefore dismissed as moot.
O. Sanctions
Plaintiffs cross-motion for sanctions pursuant to 22 NYCRR 130.1-1 is denied for failure to demonstrate frivolous conduct sufficient to support such relief. Frivolous conduct includes conduct that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law, is undertaken primarily to harass or maliciously injure another, or asserts material factual statements that are false. See 22 NYCRR 130-1.1(c). While the court previously found that the defendant engaged in frivolous conduct by improperly moving to reargue the denial of a prior re-argument motion and directed the defendant to pay the plaintiffs attorney's fees for that motion (MOT SEQ 005), the plaintiff has not established by her instant cross-motion that any further sanctions would be appropriate. Indeed, all but one of her causes of action against the defendant have been dismissed herein and the plaintiffs own motion for partial summary judgment on her cause of action for forfeiture of legal fees has been denied.
CONCLUSION
According, it is
ORDERED that defendant's motion for summary judgment (MOT SEQ 007) is granted to the extent that the second through fifteenth causes of action are dismissed, and the motion is otherwise denied; and it is further
ORDERED that plaintiffs cross-motion for sanctions is denied; and it is further
ORDERED that plaintiffs motion for partial summary judgment (MOT SEQ 008) is denied. This constitutes the Decision and Order of the court.