Opinion
107328/06.
Decided September 9, 2008.
Morgan Bottehsazan, Great Neck, NY, For Plaintiff.
Foley Lardner LLP, New York, NY (Peter N. Wang), For Defendants.
In this action, plaintiff Hertzel Tal asserts claims against defendants Bernice K. Leber and Arent Fox LLP (Arent Fox) for legal malpractice, breach of fiduciary duty and breach of contract relating to defendants' prior representation of plaintiff in a case involving a dispute over an interest in commercial property.
Defendants now move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing plaintiff's claims against them, and for judgment on their counterclaim for certain unpaid legal fees.
As set forth below, defendants' motion for summary judgment and for judgment on their counterclaim is granted.
The following factual background is comprised of facts taken from defendants' Rule 19-A Statement and the affidavits of the parties. This action arises out of defendants' prior representation of plaintiff in a commercial dispute entitled Hertzel Tal v Albert Malekan et al. (Sup Ct, NY County, Index No. 605562/2000) regarding an interest he claimed to have in property located at 552 7th Avenue, New York, NY (Aff. of Peter N. Wang, ¶ 19; Statement, ¶¶ 1, 3). Prior to commencing the underlying action, plaintiff and defendants entered into a retainer agreement that set forth the terms of the engagement, and made no assurances as to any specific results or guarantees of success (Wang Aff., ¶ 20, Exh N; Statement, ¶ 2).
Plaintiff apparently does not contest the facts set forth in defendants' Rule 19-A Statement, as he has failed to submit either a response, or his own Rule 19-A Statement. Thus, for purposes of this motion, the facts set forth in defendants' Rule 19-A Statement are deemed to be true ( see Rules of the the Commercial Division of the Supreme Court, Section 202.70, Rule 19-a [c]).
In the underlying action, plaintiff argued that he was owed an interest in the disputed property by reason of a partnership he enjoyed with the defendants in the underlying action, which he believed extended to the purchase of the disputed property (Wang Aff., ¶ 29; Statement, ¶ 5). Plaintiff claimed that, in 1986, he and his cousin, Albert Malekan, formed a partnership to invest in New York real estate. At some point, his partnership with Malekan was expanded to include Abraham Talassazan. In 1994, the three individuals entered into a written agreement to lease a particular building located at 28-30 West 37th Street, and formed a corporation to hold the lease. Plaintiff claimed that, in 1996, he discovered an opportunity to purchase another property located at 552 7th Avenue. Plaintiff presented the opportunity to Malekan as a possible partnership acquisition, only to find out later that Malekan had purchased the building through a corporation that he and the defendants in the underlying action formed without Tal, called Emunah 26 Corp. Plaintiff believed, based on his prior arrangement with Malekan and Talassazan, that he was wrongfully excluded from Emunah 26 Corp., and that he was entitled to an interest in 552 7th Avenue (Wang Aff., ¶ 23; Statement, ¶ 6). Plaintiff claimed that he was wrongfully denied shares in the corporation that purchased the property, as well as a percentage of profits realized by the corporation (Wang Aff., ¶ 24; Statement, ¶ 7).
In March 1998, the parties entered into an agreement to arbitrate the dispute between plaintiff and Malekan regarding plaintiff's claimed interest in 552 7th Avenue (the March 1998 Agreement) (Wang Aff., ¶ 24, Exh O). On August 23, 1998, the arbitrators determined that plaintiff was "not entitled to any right in the disputed property," but awarded $226,000 to plaintiff. However, the parties failed to comply with the terms of the decision, and the panel ultimately cancelled its finding ( id., ¶ 26, Exhs Q and R).
Plaintiff claimed that he had also entered into a separate written agreement in June 1998, whereby he agreed to divide and settle all leases he held with Malekan and the other "partners" (the June 1998 Agreement). Plaintiff claimed that he entered into this agreement as a pre-condition to arbitrating the dispute over 552 7th Avenue, and that the agreement was to remain in escrow pending the completion of the arbitration. The June 1998 Agreement, however, makes no reference to 522 7th Avenue, and contains an integration clause which affirmatively states that "[t]his agreement constitutes the entire agreement between the parties and may not be modified or amended except by written agreement signed by the party to be charged" ( id., ¶ 25, Exh P).
Defendants assert that, given the facts presented to them by plaintiff, they explained to plaintiff what legal arguments could be advanced to support his claim, but explicitly warned him that there was "no promise of ultimate success" because of the "many legal hurdles," and that unless objective evidence of the partnership appeared, Tal was unlikely to prevail ( id., ¶ 27, Exh N, at 8).
Despite the warning, plaintiff decided to proceed with the lawsuit, and defendants then commenced the underlying action ( id., ¶¶ 28-29, Exh T). The defendants in the underlying action moved to dismiss the complaint, arguing that no partnership between the parties ever existed, and that the only way in which the parties ever conducted business was through a series of corporations ( id., ¶ 30, Exh U). In responding to the motion to dismiss, plaintiff urged defendants to focus the court's attention on the agreement he entered into with Malekan and Talassazan to lease 28-30 West 37th Street (the 1994 Agreement), which he believed evidenced a general partnership arrangement with the defendants in the underlying action ( id., ¶ 31, Exh V).
By order dated March 27, 2002, the Honorable Ira Gammerman granted the motion to dismiss ( id., ¶ 33; Statement, ¶ 8). Defendants appealed Justice Gammerman's decision to the Appellate Division, First Department, which, by decision dated May 22, 2003, affirmed Justice Gammerman's order ( Tal v. Malekan, 305 AD2d 281 [1st Dept.], lv. to app. den 100 NY2d 513).(Justice Gammerman and the Appellate Division both found that there was no evidence of plaintiff's interest in the disputed property, and that there was significant documentary evidence that tended to show that plaintiff had no right to an interest in the property (Wang Aff., ¶¶ 33-35, 39-40; Statement, ¶ 10).
Specifically, Justice Gammerman held that plaintiff failed "to establish any beneficial interest in Emunah by virtue of a partnership with the defendants" (Gammerman Decision, at 7 [Wang Aff., Exh X]). Justice Gammerman did not accept Tal's version of the events that the June 1998 Agreement was to be held in escrow, and held that its integration clause served as a complete bar to plaintiff's claim that a prior understanding between the parties existed ( id. at 10). Justice Gammerman further held that the 1994 Agreement did not support the existence of any partnership arrangement, noting that "[a]n agreement to acquire commercial space for the purpose of transferring to a third party at a profit to be divided among the transferors does not itself constitute a partnership" ( id. at 7).
In its decision (Wang Aff., Exh AA), the Appellate Division agreed with Justice Gammerman's ruling that no evidence existed to support plaintiff's belief that he had a cognizable interest in 552 7th Avenue based on the existence of a partnership. Just as Justice Gammerman had concluded, the Appellate Division also found that the 1994 Agreement severely undermined plaintiff's position, holding that "the purported 1994 agreement, far from confirming any preexisting, overarching partnership design, is concerned with the disposition of a single property, does not envision any other future ventures, and does not in any way acknowledge or revive any past partnership" (Appellate Division Decision, at 16).
Plaintiff then brought this action for legal malpractice, alleging various acts of negligence by defendants, and also bringing causes of action for breach of fiduciary duty and breach of contract. In response, defendants asserted a counterclaim for breach of contract seeking damages for unpaid legal fees and disbursements.
It is well established that in order to prevail in a legal malpractice case, the plaintiff carries a heavy burden ( Lindenman v Kreitzer , 7 AD3d 30 [1st Dept 2004]). In order to make out a prima facie case of legal malpractice, the plaintiff must prove (1) that the attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community; (2) that the negligence on the part of the attorney was the proximate cause of the loss sustained; and (3) actual damages ( Prudential Ins. Co. of America v Dewey Ballantine, Bushby, Palmer Wood, 170 AD2d 108 [1st Dept 1991], affd 80 NY2d 377; accord McCoy v Feinman, 99 NY2d 295). "[T]o establish the elements of proximate cause and actual damages, where the injury is the value of the claim lost, the client must meet the case within a case' requirement, demonstrating that but for' the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages" ( Weil, Gotshal Manges, LLP v Fashion Boutique of Short Hills, Inc. , 10 AD3d 267 , 272 [1st Dept 2004] [citations omitted]; accord Aquino v Kuczinski, Vila Associates, P.C. , 39 AD3d 216 [1st Dept 2007]). Finally, "actual and ascertainable" damages must be shown mere speculation will not suffice ( Zarin v Reid Priest, 184 AD2d 385, 387-388 [1st Dept 1992] [holding that "(t)he damages claimed in a legal malpractice action must be actual and ascertainable' resulting from the proximate cause of the attorney's negligence (citation omitted)"]).
To succeed on a motion for summary judgment in a legal malpractice action, the movant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of his prima facie case ( Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572 [2d Dept], lv denied 93 NY2d 809). The former client must plead specific factual allegations to defeat a motion for summary judgment. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient' to overcome a prima facie showing of entitlement to summary judgment" ( Avina v Verburg , 47 AD3d 1188 [3d Dept 2008] [citation omitted]).
As demonstrated below, no genuine issue of material fact exists with respect to plaintiff's inability to sustain his burden of proof on several of the elements of a prima facie case for legal malpractice. Plaintiff has not submitted any admissible evidence, not presented to the court in the underlying action, which would demonstrate that he has a cognizable interest in 552 7th Avenue. Rather, plaintiff relies on the same documents that were determined to be fatal to his claim in the underlying action. Without this threshold showing, plaintiff cannot carry his ultimate burden of proving that "but for" the alleged acts of negligence, he would have prevailed in the underlying action.
Moreover, plaintiff has not alleged actual damages, nor can he demonstrate that defendants were the proximate cause of any alleged damages. Indeed, to the extent that plaintiff attempts to demonstrate a disputed issue of material fact, he has done so by improperly repeating, almost verbatim, the allegations of the complaint and the amended bill of particulars. This is clearly insufficient. "The burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars verified or unverified.' Some evidentiary facts are required to be put forward" ( S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 343 [citation omitted]).
In addition, most of plaintiff's allegations amount to nothing more than objections to various strategy decisions undertaken by defendants. Such allegations are not sufficient to state a claim for malpractice ( Rubinberg v Walker, 252 AD2d 466, 467 [1st Dept 1998] [holding that "(a)ttorneys are not liable in negligence for errors of judgment or the exercise of appropriate judgment that leads to an unsuccessful result; where it is clear that the attorney exercised his or her judgment reasonably as to how to proceed, summary judgment should be granted dismissing the action (internal citations omitted)"]).
Legal Malpractice Cause of Action
1. Proximate Cause
In support of his first cause of action for legal malpractice, plaintiff has set forth a series of alleged acts on the part of defendants, all of which are either unsubstantiated, or of no legal significance.
Although not mentioned in his pleadings, plaintiff has continually argued that defendants intentionally lost the underlying action because an Arent Fox attorney, was "bribed" by one of the defendants in the underlying action. However, plaintiff admits that he has no evidence to support this accusation (Tal Dep., at 22, 27-28 [Wang Aff, Exh I]). While plaintiff later suggested that he had knowledge of the existence of a witness who would substantiate his claim, he has flatly refused to disclose the identity of this person ( id. at 237-239; 251-253; 257-258). Thus, plaintiff has failed to submit any admissible evidence to support this claim of a bribe which led defendants to intentionally lose the underlying action. Because plaintiff cannot support his claim, he cannot sufficiently demonstrate that it was a proximate cause of any alleged damages ( see Town of North Hempstead v Winston Strawn, LLP , 28 AD3d 746 , 749 [2d Dept], lv denied 7 NY3d 715 ["conclusory allegations based on speculation were not sufficient to sustain a cause of action for malpractice (citations omitted)"]; Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [1st Dept 2001] ["Unsupported factual allegations, conclusory legal argument or allegations contradicted by documentation, do not suffice" to prevail in an action for legal malpractice (citation omitted)]).
Plaintiff also claims that both the 1994 Agreement and the March 1998 Agreement somehow evidence his right to an interest in 552 7th Avenue, and that by either not submitting these documents earlier, or not relying on them more heavily in the underlying action, defendants caused plaintiff to lose the underlying action. However, plaintiff fails to sufficiently allege how these documents in any way support his claim to an interest in 552 7th Avenue, and thus cannot demonstrate that he would have prevailed in the underlying action but for the alleged negligence.
On its face, the 1994 Agreement does not refer to, evidence, or set up a partnership that covered the purchase of 552 7th Avenue. To the contrary, the agreement contemplates only that the parties agreed to acquire a lease on a different commercial property to be held by a corporation set up by the parties, and there is no mention of any pre-existing or future partnership arrangement among the parties to this agreement. Indeed, both Justice Gammerman and the Appellate Division held that this document in no way supported plaintiff's claim to an interest in the disputed property ( see Gammerman Decision, at 7 ["An agreement to acquire commercial space for the purpose of transferring to a third party at a profit to be divided among the transferors does not itself constitute a partnership"]; Appellate Division Decision, at 16 ["even if a partnership sufficiently broad in scope to encompass the complained-of Emunah 26 transactions had existed, its continued vitality would not have been consistent with the terms of the (1994 Agreement)," and thus, the 1994 Agreement "on its face negates plaintiff's claim"]).Plaintiff also argues that defendants' failure to submit an executed version of the 1994 Agreement constitutes legal malpractice. I reject this argument, as plaintiff sets forth no plausible explanation as to how the 1994 Agreement, signed or unsigned, supports his right to an interest in 552 7th Avenue.
Accordingly, plaintiff's bare legal conclusion that this agreement supports his claim, without any supporting admissible evidence, is not sufficient to raise a triable issue of fact in response to the summary judgment motion ( see North Fork Bank v ABC Merchant Services, Inc. , 49 AD3d 701 , 701 [2d Dept 2008] [holding that "conclusory and unsubstantiated assertions that were inconsistent with the unrefuted documentary evidence failed to raise a triable issue of fact"]).
Likewise, the March 1998 Agreement fails to support plaintiff's claim of malpractice. According to the March 1998 Agreement, "in 1997 a dispute arose between Malekan and Tal when a so-called building (552 Seventh Avenue) was purchased by Malekan and Abraham Talassazan which Tal claim that he has [ sic] interest in the Building." It further provides that "Malekan and Tal shall submit their dispute concerning this Building for resolution and decision by a panel." Plaintiff alleges that the March 1998 Agreement is evidence of his interest in 552 7th Avenue. Plaintiff further contends that defendants' failure to submit this agreement earlier in the underlying action was negligent, and resulted in him losing the underlying action. However, plaintiff sets forth nothing more than a bare conclusion that the March 1998 Agreement, as an agreement to arbitrate, is evidence of his interest in 552 7th Avenue. An acknowledgment that a dispute exists among parties to be settled through arbitration in no way evidences the validity of either party's claim. As such, the March 1998 Agreement cannot be read to support plaintiff's claim to 552 7th Avenue.
Moreover, given the fact that plaintiff has failed to establish how either the 1994 Agreement or the March 1998 Agreement possibly supports his claim to an interest in 552 7th Avenue, it is immaterial when these documents were submitted to the court, or the weight they were given in the underlying action. A plaintiff's inability to show that he would have prevailed in the underlying action is a complete bar to any recovery in a legal malpractice action ( Schwartz v Olshan Grundman Frome Rosenzweig, 302 AD2d 193, 198 [1st Dept 2003] ["(t)he failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent (citations omitted)"]).
In addition to these agreements, plaintiff also appears to claim a right to an interest in 552 7th Avenue on the basis of an alleged oral agreement between the parties concerning the property. However, plaintiff's own testimony in this action undermines any basis for this claim. During his deposition, plaintiff testified that this alleged oral agreement regarding 552 7th Avenue consisted of an agreement between the parties to acquire the property in the same manner the parties conducted business pursuant to the 1994 Agreement. The 1994 Agreement contemplates the acquisition of a commercial leasehold to be assigned to a corporation. However, executory agreements for the conveyance of real property to corporations do not establish the existence of a partnership, and, in any event, must be reduced to writing ( see General Obligations Law § 5-703; Gammerman Decision, at 7 ["(a)n agreement to acquire commercial space for the purpose of transferring to a third party at a profit to be divided among the transferors does not itself constitute a partnership, and any such agreement would be unenforceable under the Statute of Frauds"]). Therefore, to the extent that plaintiff's alleged oral agreement entailed a plan to obtain a lease on 552 7th Avenue to be held by a corporation formed by the parties, as plaintiff has testified, such an agreement must be in writing. Since the agreement was admittedly not in writing, any such oral agreement is legally unrecognizable, and fatal to plaintiff's claim to an interest in 552 7th Avenue.
In response to the summary judgment motion, plaintiff sets forth a new argument, not previously presented in the complaint, the bill of particulars, or at his deposition, with respect to the 1994 Agreement. For the first time, plaintiff argues that defendants' failure to submit in the underlying action a December 9, 1998 "statement" of Nasser Nazarian and Nejatollah Shavolian, which suggests that the June 1998 agreement was to be held in escrow pending completion of the arbitration between plaintiff and Malekan regarding 552 7th Avenue, was an act of malpractice. I reject this argument. Despite claiming that this was a crucial document that should have been submitted to the court, plaintiff admits that defendants submitted an affidavit of Nejatollah Shavolian dated March 23, 2001 (Aff. of Morgan Bottehsazan, Exh W) in opposition to the motion to dismiss the underlying action "that in essence repeated and reiterated identical facts as set forth in the handwritten statement of Nazarian and Shavolian" ( id., ¶ 38). Plaintiff therefore has no basis to now claim that defendants omitted any non-cumulative evidence in opposition to the motion to dismiss.
Accordingly, because plaintiff has failed to set forth any admissible evidence that he has possessed a valid claim to an interest in 552 7th Avenue, plaintiff has completely failed to carry his burden of proving that he would have prevailed in the underlying action but for the conduct of defendants.
2. Actual Damages
It is well established that an attorney is not liable for damages resulting from alleged malpractice when the damages are remote or speculative ( Dweck Law Firm, LLP v Mann, 283 AD2d at 294 [plaintiff's "claim of damages remains speculative and unascertainable . . . warranting dismissal"]; Giambrone v Bank of NY, 253 AD2d 786, 787 [2d Dept 1998] ["Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice. Any damages alleged by the plaintiff must be actual and ascertainable' (citation omitted)"]). Furthermore, where the claim of damages is measured by what the former client would have collected on a lost cause of action, the client bears the burden of proving that amount ( McKenna v Forsyth Forsyth, 280 AD2d 79 [4th Dept 2001]). Plaintiff's claim does not even come close to satisfying this standard. None of the damages sought by plaintiff herein are "actual and ascertainable," nor can he prove the amount of damages with any level of certainty. In his complaint, bill of particulars and his own sworn testimony, plaintiff concedes that he has no basis for determining the measure of his alleged damages. At times, plaintiff has claimed damages in excess of $5 million (amended bill of particulars), $5 million (complaint), $8 million (deposition), and perhaps as much as $500 million (deposition), while continually maintaining that he has no knowledge of the value of his lost claim, but, at the same time, reserving the right to introduce expert testimony on the issue ( see Bill of Particulars, ¶ 17 [Wang Aff., Exh E], and seeking an extension of time to name an expert witness ( see Wang Reply Aff., Exh B]). Plaintiff, however, has failed to make any expert disclosure to date.
Because plaintiff has failed to submit any evidence to prove that his damages are actual and ascertainable, he is unable to carry his burden in this legal malpractice action, and his claim must be dismissed as a matter of law ( see e.g Postel v Jaffe Segal, 237 AD2d 127, 127 [1st Dept 1997] ["Vacatur of plaintiffs' default was properly denied because, having failed to set forth the names of the experts who would have testified and the substance of their testimony, plaintiffs' claim of damages remains speculative"]; Zarin v Reid Priest, 184 AD2d at 388 ["Here, the damages claimed by plaintiffs are too speculative and incapable of being proven with any reasonable certainty' (citation omitted)"]).
Accordingly, plaintiff's first cause of action for legal malpractice must be dismissed.
Breach of Fiduciary Duty and Breach of Contract Claims
Plaintiff's claims for breach of fiduciary duty (second cause of action) and breach of contract (third cause of action) are duplicative of his claim for malpractice and, as such, must also be dismissed.
A claim for breach of fiduciary duty that "merely tracks the allegations of [a] malpractice claim and does not allege any independent intentional tort" is duplicative, and must be dismissed as a matter of law ( CVC Capital Corp. v Weil, Gotshal, Manges, 192 AD2d 324, 325 [1st Dept 1993]). In his amended bill of particulars, plaintiff concedes that he has no sustainable claim for breach of fiduciary duty by stating that "Defendants breached their fiduciary duty based upon the facts and circumstances described in Nos. 7 8 above" (Amended Bill of Particulars, ¶ 21 [Wang Aff., Exh G]). "Nos. 7 8 above" refer to plaintiff's recitations of the alleged acts of negligence supporting the malpractice claim. Because the allegations supporting plaintiff's claims for breach of fiduciary duty mirror those for his claim for malpractice, he has not alleged an independent tort, and this claim must be dismissed as duplicative.
Likewise, where a breach of contract claim "[does] not rest upon a promise of a particular or assured result, and only claim[s] a breach of general professional standards," it is properly "viewed as a redundant pleading of a malpractice claim'" ( Senise v Mackasek, 227 AD2d 184, 185 [1st Dept 1996] [citations omitted]). Plaintiff has not set forth any allegations that defendant made any promises or assurances regarding the underlying action, nor is there any evidence of any such promises in the retainer agreement ( see Wang Aff., Exh N). In fact, plaintiff was warned before the complaint was even drafted that his claim presented difficult issues of fact and law, and that success was in no way guaranteed ( see id.). As such, plaintiff's claim for breach of contract must be dismissed as duplicative of his legal malpractice claim.
Defendants' Counterclaim for Breach of Contract
Defendants are also entitled to summary judgment on their counterclaim for breach of contract seeking damages for unpaid legal fees and disbursements. According to defendants, throughout the course of their representation of plaintiff, there were numerous billing disputes. Defendants claim that, to date, Arent Fox has not been paid in full ( id., ¶ 43). As of April 26, 2002, plaintiff acknowledged that he was indebted to Arent Fox in the amount of $41,052 ( id., ¶ 45). Defendants contend that, in the hope of recouping some amount of these unpaid fees, the firm entered into a payment plan with plaintiff ( id., Exh Y), whereby he agreed to pay the firm according to a specified payment plan. If plaintiff abided by the terms of the plan, the firm agreed to discount his outstanding debt to $4,000, and Arent Fox agreed to pursue the appeal to the Appellate Division for a flat fee of $10,000 (the Appeal Agreement) ( id.).
According to defendants, plaintiff failed to abide by the terms of the Appeal Agreement. He was often delinquent with his payments, and, on multiple occasions, paid less than the full amount that was due. Thus, defendants contend, plaintiff was not entitled to the benefit of the $4,000 reduction. Additionally, plaintiff never paid the flat fee of $10,000 for the appeal. Arent Fox contends that it is therefore still owed $11,552 plus interest, which represents the outstanding $14,000 outstanding balance, minus the $2,448 credited to plaintiff on his account ( id; ¶ 46; see Exh EE).
In an attempt to avoid addressing defendants' counterclaim on the merits, plaintiff asserts that Part 137 of the Rules of the Chief Administrator of the Courts establishes a mandatory arbitration requirement for fee disputes, which bars defendants' counterclaim. However, a review of this statute reveals that plaintiff's argument is without merit. According to section 137.1 (a), "This Part shall apply where representation has commenced on or after January 1, 2002 (emphasis added)". It is undisputed that defendants' representation of plaintiff commenced on January 5, 2000, pursuant to the parties' retainer agreement ( see Wang Aff., Exh N).
With regard to the merits of the counterclaim, defendants have submitted ample evidence to support their counterclaim for unpaid fees and disbursements resulting from plaintiff's breach of the Appeal Agreement. Plaintiff does not dispute that he and defendants entered into a contract whereby he was to repay a portion of his debt owed to defendants, and pay a fee of $10,000 for defendants to pursue an appeal to the Appellate Division on his behalf. Plaintiff also does not dispute that defendants performed under the contract by perfecting plaintiff's appeal while, at the same time, he failed to abide by his obligations as set forth in that agreement. Plaintiff's conclusory allegation that he did not breach the contact, and that he repaid all debts owed, is undermined by his lack of evidence, and his own statement in the Reply to Counterclaims whereby he admitted that there were unpaid fees ( see Wang Aff., Exh C). Plaintiff also fails to dispute the amount of unpaid legal fees owed to defendants.
To establish a right to recover for breach of contract, a party must prove (1) the existence of a contract; (2) performance of the contract by the injured party; (3) breach by the other party; and (4) damages ( Noise In Attic Prods., Inc. v London Records , 10 AD3d 303 [1st Dept 2004]; accord J L Am. Enters., Ltd. v DSA Direct, LLC, 10 Misc 3d 1076[A], 2006 NY Slip Op 50101[U] [Sup Ct, NY County 2006]). In support of their motion for summary judgment on their counterclaim, defendants have made a prima facie showing of breach of contract, as well as the amount of unpaid legal fees owed. In response to the summary judgment motion, plaintiff offers only conclusory denials, and has produced no evidence to refute that showing. Defendants are thus entitled to summary judgment on their counterclaim for breach of contract in the amount of $11,552.00 ( see Baby Togs, Inc. v IMI Sys., Inc., 205 AD2d 335 [1st Dept 1994], lv dismissed 84 NY2d 1026; Benjamin Elec. Eng'g. Works, Inc. v Rampart Constr. Assocs., Inc., 173 AD2d 370 [1st Dept], lv dismissed 78 NY2d 1006)
I have considered the remaining claims, and I find them to be without merit.
Accordingly, it is
ORDERED that defendants' motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed with costs and disbursements to defendants Bernice K. Leber and Arent Fox PLLC as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendants' motion for summary judgment on their counterclaim is granted, and the Clerk of the Court is directed to enter judgment in favor of defendants Bernice K. Leber and Arent Fox PLLC and against plaintiff Hertzel Tal in the amount of $11,552, together with interest as prayed for allowable by law until the date of entry of judgment, as calculated by the Clerk, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.