Opinion
654256/2015
05-17-2019
ADAM LEITMAN BAILEY, P.C., Plaintiff, v. Russell H. POLLACK, Defendant.
Plaintiff: Adam Leitman Bailey, P.C., One Battery Park Plaza, 18th Floor, New York, New York 10004, By: Colin E. Kaufman, Esq. and Adam M. Swanson, Esq. and John M. Desiderio, Esq. Defendant: Pryor Cashman LLP, 7 Times Square, New York, New York 10036, By: James S. O'Brien, Jr., Esq. and Marion R. Harris, Esq.
Plaintiff: Adam Leitman Bailey, P.C., One Battery Park Plaza, 18th Floor, New York, New York 10004, By: Colin E. Kaufman, Esq. and Adam M. Swanson, Esq. and John M. Desiderio, Esq.
Defendant: Pryor Cashman LLP, 7 Times Square, New York, New York 10036, By: James S. O'Brien, Jr., Esq. and Marion R. Harris, Esq.
Robert R. Reed, J.
In this action seeking to recover unpaid legal fees, plaintiff Adam Leitman Bailey, P.C. moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor on the complaint and against defendant Russell H. Pollack's counterclaims, and for an order, pursuant to CPLR 3211 (b), dismissing defendant's affirmative defenses. Defendant opposes the application.
BACKGROUND
Defendant is the owner of a townhouse located at 44 East 82nd Street, New York, New York (the Premises) (NY St Cts Elec Filing [NYSCEF] Doc No. 34, affidavit of John. M. Desiderio [Desiderio aff], exhibit A [complaint], ¶ 4). In 2014, nonparty 46 East 82nd Street LLC, whose principal is nonparty Penny Bradley (Bradley), purchased the adjacent townhouse at 46 East 82nd Street, and proceeded to renovate the property (id. , ¶ 6; NYSCEF Doc No. 56, affirmation of plaintiff's counsel, exhibit W [defendant tr] at 11). Defendant alleges that Bradley's renovation work caused damage to the interior and exterior of the Premises. In addition, defendant's tenants, to whom he had leased the townhouse for $ 384,000 in annual rent (NYSCEF Doc No. 56 at 22), vacated the Premises in mid-November 2014 before their two-year lease term expired "because of [the] noise and dust and dangerous conditions" (id. at 77). They surrendered possession to defendant on December 5, 2014 (id. at 24).
Defendant executed a retainer agreement with plaintiff on December 8, 2014, and paid $ 10,000 in advance (NYSCEF Doc No. 37, Desiderio aff, exhibit D [Retainer] at 1). The Retainer provides that plaintiff would render monthly invoices to defendant and that payment was due upon receipt (id. at 1). Importantly, the Retainer reads, in pertinent part, "[y]ou understand that, although ALBPC will use its best professional judgment in the prosecution or defense of this claim, ALBPC cannot and does not guarantee any particular outcome or result" (id. at 3). Attached to the Retainer is a two-page statement of client's rights as mandated by 22 NYCRR 1210.1. Plaintiff represented defendant in his dispute with Bradley from December 8, 2014 through July 2015, when defendant terminated plaintiff's services (NYSCEF Doc No. 32, Desiderio aff, ¶ 17). Although plaintiff has billed defendant $ 110,461.36 (NYSCEF Doc No. 34, ¶¶ 22 and 30), he has been paid only $ 26,783.20 (NYSCEF Doc No. 35, Desiderio aff, exhibit B [amended answer], ¶ 29).
Plaintiff commenced this action against defendant for breach of contract, an account stated, quantum meruit and unjust enrichment. Defendant interposed 13 affirmative defenses and two counterclaims for legal malpractice and breach of fiduciary duty in is amended answer. Plaintiff asserts five affirmative defenses in its response to the counterclaims.
THE CONTENTIONS
Plaintiff argues that it is entitled to summary judgment on the first cause of action for breach of contract and the second cause of action for an account stated. Submitted in support of the motion is an affidavit from Desiderio, a partner at plaintiff law firm who worked personally on defendant's matter. Desiderio described the actions plaintiff undertook on defendant's behalf, which included commencing a lawsuit titled Pollack v. 46 East 82nd Street LLC, et al. (Sup Ct, NY County, index No. 152227/2015) (the Bradley Litigation) against Bradley, among others, to recover for the damage caused to the Premises, filing an application by order to show cause for a temporary restraining order and a preliminary injunction, and engaging in settlement discussions with Bradley's counsel (NYSCEF Doc No. 32, ¶ 17). Desiderio avers that plaintiff has sent defendant invoices for its work and demanded payment (NYSCEF Doc No. 48, Desiderio aff, exhibit O at 1; NYSCEF Doc No. 49, Desiderio aff, exhibit P at 1), but defendant has not paid (NYSCEF Doc No. 32, ¶ 37).
As for the third cause of action for quantum meruit and the fourth cause of action for unjust enrichment, plaintiff argues that the court need not consider them because the Retainer constitutes a valid agreement. In the event the court concludes otherwise, plaintiff submits it is entitled to summary judgment on those causes of action because defendant has been unjustly enriched from plaintiff's services. Desiderio avers that the value of the services plaintiff rendered to defendant is reasonable given the size of the law firm, its expertise in real estate matters, and the attorneys' qualifications (NYSCEF Doc No. 32, ¶¶ 38-49).
Plaintiff also contends that the legal malpractice counterclaim should be dismissed. First, as the Bradley Litigation has not been resolved, defendant cannot demonstrate his success in the underlying dispute. Second, a legal malpractice claim cannot be predicated upon an alleged violation of a disciplinary rule. Third, plaintiff characterizes the termination of its services as a "difference of opinion on how to approach settlement negotiations, best protect the Pollack Townhouse and maximize settlement value" (NYSCEF Doc No. 32, ¶ 27), and posits that a disagreement over legal strategy cannot form the basis for a malpractice claim.
Desiderio explains how the relationship between plaintiff and defendant had deteriorated. In an email dated July 30, 2015, defendant claimed that plaintiff failed to consult with him about a settlement offer Bradley had made before plaintiff rejected it, that plaintiff's failure to respond to Bradley's request for a counteroffer caused the parties in the Bradley Litigation to move for dismissal of that action, and that plaintiff's failure to respond to numerous discovery demands has exposed him to the risk of sanctions or dismissal in the Bradley Litigation (NYSCEF Doc No. 32, ¶ 24). Desiderio rejects defendant's assertion that plaintiff "rendered poor judgment, poor advice, and poor quality work," especially when -- Desiderio avers -- it was defendant who had pushed for a more aggressive strategy (id. , ¶ 26). In a written response dated August 21, 2015, Desiderio observed that it was defendant who had expressed on several occasions that the " ‘first priority’ was ‘to freeze ... Bradley's activities’ " (id. , ¶ 26 [b] ). Desiderio, moreover, claims that defendant was less than receptive to Bradley's $ 50,000 settlement offer because defendant did not believe Bradley was acting in good faith (id. , ¶ 25 [vi] ). Desiderio avers that he and others at plaintiff law firm discussed the settlement offer and other issues in the Bradley Litigation with defendant on May 6, 2015, and that, at no time during that discussion, or in a subsequent discussion on May 14, 2015, did defendant propose that plaintiff make a counteroffer (id. , ¶ 25 [a] [ix-xi] ). Desiderio also refuted defendant's contention that a prolonged delay in responding to Bradley's offer had caused the defendants in the Bradley Litigation to move for dismissal because two of the movants had not made settlement offers (id. , ¶ 25 [b] [iii] ). As for the potential risk of sanctions or dismissal for failing to respond to the parties' discovery demands, Desiderio "told Pollack that parties do not generally respond to discovery demands prior to entry of a ‘PC Order’ ... [and that] [i]t would be extremely unusual, absent egregious circumstances for sanctions to be levied for not responding to discovery demands served prior to entry of PC Order" (id. , ¶ 25 [c] [iii] ).
Plaintiff argues that the second counterclaim for breach of fiduciary duty should be dismissed as duplicative of the first counterclaim for legal malpractice. Furthermore, plaintiff asserts, there is no merit to any of defendant's affirmative defenses.
Defendant, in opposition, argues that plaintiff is not entitled to summary judgment. With respect to the breach of contract cause of action, defendant asserts, plaintiff failed to substantially perform two specific provisions in the Retainer, namely, the obligation to keep him "reasonably informed" and the obligation to respect his objectives (NYSCEF Doc No. 59, defendant's memorandum of law at 16) -- as required under New York's Statement of Client's Rights ( 22 NYCRR 1210.1 ) annexed to the Retainer. Defendant offers numerous email exchanges with the lawyers at plaintiff law firm to show that plaintiff neglected to apprise him of developments in the Bradley Litigation and failed to consider his primary objective of repairing three walls damaged by the renovation work so that the Premises could be re-let. Instead of opening a dialogue regarding an offer Bradley's contractor had made to repair one of the damaged walls, plaintiff chose to focus on securing an access agreement with an exorbitant monthly fee. With respect to the account stated cause of action, defendant contends that he objected to plaintiff's invoices within a reasonable time. In the July 5, 2015 email in which he terminated plaintiff's services, defendant wrote that he had received the "statements for past work and am reviewing" (NYSCEF Doc No. 104, affirmation of defendant's counsel, exhibit 42 at 1). Defendant further expanded on this "rejection" on July 30, 2015, when he informed plaintiff that he believed it had "already been significantly overpaid" and that he would "resist further payment until the end" (NYSCEF Doc No. 109, affirmation of plaintiff's counsel, exhibit 47 at 1). Defendant submits that the quasi-contract claims should be dismissed because a valid contract, i.e. the Retainer, exists. Lastly, defendant alleges that plaintiff failed to meet its burden on the affirmative defenses.
As for the counterclaims, defendant argues that a violation of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) can serve as basis for a legal malpractice claim, and submits that he has established each element necessary to maintain such a claim. Contrary to plaintiff's position, defendant alleges that expert testimony is unnecessary to establish malpractice. In any event, defendant has exchanged an affidavit from Roy Simon (Simon), a former professor of legal ethics at Hofstra University School of Law. Simon identifies four instances where plaintiff breached the standard of care expected of legal professionals: (1) pursuing injunctive relief without adequate legal analysis or facts; (2) failing to consult and furnish defendant with a copy of the proposed license agreement; (3) failing to discuss Bradley's request for a counteroffer with defendant before repeating the initial demand; and (4) failing to consult with defendant before withdrawing the application for a preliminary injunction (NYSCEF Doc No. 60, Simon aff, ¶¶ 16-19).
DISCUSSION
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ), and by the pleadings and other proof such as affidavits, depositions and written admissions (see CPLR 3212 ). The "facts must be viewed in the light most favorable to the non-moving party" ( Vega v. Restani Constr. Corp ., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted] ). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (id. , citing Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 [1986] ). The "[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers " ( Vega , 18 NY3d at 503 [internal quotation marks and citation omitted, emphasis in original] ).
The court turns to the merits of the counterclaims first, as a determination on the viability of the legal malpractice counterclaim affects a determination on plaintiff's causes of action for its unpaid fees (see Emery Celli Brinckerhoff & Abady, LLP v. Rose , 111 AD3d 453, 454 [1st Dept 2013], lv denied 23 NY3d 904 [2014] ; Tabner v. Drake , 9 AD3d 606, 611 [3d Dept 2004] [stating that "[a] nonfrivolous claim of legal malpractice is, by nature, ‘inextricably intertwined’ with a claim for fees for the same representation claimed to have been deficient"] [citation omitted] ).
A. First Counterclaim for Legal Malpractice
To prevail on a cause of action for legal malpractice, a plaintiff must plead and prove "the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages" ( Leder v. Spiegel , 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v. Rowland , 552 US 1257 [2008] [internal quotation marks and citations omitted] ). "An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if ‘but for’ the attorney's negligence ‘the plaintiff would have succeeded on the merits of the underlying action’ " ( Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 NY3d 40, 50 [2015], rearg denied 27 NY3d 957 [2016], quoting AmBase Corp. v. Davis Polk & Wardwell , 8 NY3d 428, 434 [2007] ). Thus, a plaintiff must meet the "case within a case" requirement to avoid dismissal (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc ., 10 AD3d 267, 272 [1st Dept 2004] [internal quotation marks and citations omitted] ).
Defendant grounds the malpractice counterclaim upon a purported violation of rule 1.4 (a) (1) (iii) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), which provides that a lawyer shall promptly inform a client of "material developments in the matter including settlement or plea offers." Specifically, he complains of plaintiff's failure to apprise him of Bradley's demand for a counteroffer and plaintiff's voluntary withdrawal of the motion for a preliminary injunction (NYSCEF Doc No. 35, ¶ 32). Defendant concedes that a violation of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) does not, without more, support a malpractice claim (see Cohen v. Kachroo , 115 AD3d 512, 513 [1st Dept 2014] [citations omitted] ). Nevertheless, he maintains that plaintiff's actions have proximately caused substantial damages.
At the outset, plaintiff argues that defendant is precluded from offering a belated expert report in the absence of a CPLR 3101 (d) exchange, and that an expert affidavit is necessary to prove legal malpractice. Ordinarily, an expert opining on whether a party is liable for legal malpractice is not required (see Boye v. Rubin & Bailin, LLP , 152 AD3d 1, 9 [1st Dept 2017], citing Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass , 301 AD2d 63, 69 [1st Dept 2002] ). Indeed, "the opinion offered by ... [a] legal malpractice expert is improper since it is the function of the court to determine whether ... [a] performance constituted malpractice" ( Dimond v. Salvan , 78 AD3d 407, 408 [1st Dept 2010] ). That said, "[a] lawyer seeking summary judgment dismissing a legal malpractice claim cannot satisfy its prima facie burden without providing an expert opinion that any or all of the foregoing elements were not met, so long as the subject matter is not within the ken of an ordinary person" ( Cosmetics Plus Group, Ltd. v. Traub , 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013], citing Suppiah v. Kalish , 76 AD3d 829, 832 [1st Dept 2010], appeal withdrawn 16 NY3d 796 [2011] ; Tran Han Ho v. Brackley , 69 AD3d 533, [1st Dept 2010], lv denied 15 NY3d 707 [2010], rearg denied 15 NY3d 950 [2010] [concluding that an expert affidavit was necessary where the claims raised issues of professional standards and causation] ). Thus, an expert opinion may be helpful in establishing whether an attorney is negligent, which is the first element of a malpractice claim (see Schadoff v. Russ , 278 AD2d 222, 223 [2d Dept 2000] [finding that the plaintiff failed to tender an expert opinion on whether the defendants breached the standard of professional care] ).
Here, plaintiff does not suggest that the alleged negligence, which defendant characterizes as a lack of communication on substantive issues, is outside the ken of an ordinary person such that an expert opinion is necessary (see Wo Yee Hing Realty Corp. v. Stern , 99 AD3d 58, 63 [1st Dept 2012] [concluding that an expert affidavit is not required when the legal malpractice claim turns on discrete factual questions, not "byzantine" issues involving immigration law] ). Plaintiff also ignores the plain language in CPLR 3212 (b), which states, in part:
"Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit"
( CPLR 3215 [b], as amended by L 2015, ch 529, § 1] ). Also, the failure to exchange a CPLR 3101 (d) notice does not result in the automatic preclusion of an expert opinion "without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion" ( Haynes v. City of New York , 145 AD3d 603, 606 [1st Dept 2016] [internal quotation marks and citations omitted] ), especially when the statute "does not require a party to retain an expert at any particular time" ( LaMasa v. Bachman , 56 AD3d 340, 341 [1st Dept 2008] ). Hence, Simon's affidavit may be considered even though defendant failed to previously disclose his expert. Moreover, plaintiff has not demonstrated that the late production of an expert affidavit has caused it harm or prejudice.
Although Simon opines that plaintiff breached the applicable standard of care, which is defined as "the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" ( AmBase Corp. , 8 NY3d at 434 [citation omitted] ), defendant's chief complaint concerns the strategy plaintiff employed in attempting to resolve the dispute with Bradley. It is settled that "[a]ttorneys may select among reasonable courses of action in prosecuting their clients' cases without thereby committing malpractice" ( Dweck Law Firm v. Mann , 283 AD2d 292, 293 [1st Dept 2001] ). "[A] client's disagreement with its attorney's strategy does not support a malpractice claim, even if the strategy has flaws" ( Brookwood Cos., Inc. v. Alston & Bird, LLP, 146 AD3d 662, 667 [1st Dept 2017] ). Thus, a legal malpractice claim cannot rest upon "retrospective complaints about the outcome of ... strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable" ( Brenner v. Reiss Eisenpress, LLP , 155 AD3d 437, 438 [1st Dept 2017] [citations omitted]; see generally Rosner y Paley , 65 NY2d 736, 738 [1985] [finding that an attorney's error in judgment in selecting from several reasonable, alternative courses of action does not constitute malpractice] ). The documentary and testimonial evidence establishes that defendant largely objected to the manner by which plaintiff attempted to secure a resolution. Such complaints cannot form the basis for legal malpractice.
Likewise, defendant has not shown that plaintiff's tactics were unreasonable. Rather, the record is replete with instances where defendant urged plaintiff to devise a strategy to bring Bradley to heel, no matter the outcome. For instance, the day after he executed the Retainer, defendant wrote that "[t]he overall objective is to freeze Bradley until we have a clear agreement on the points outlined in the penultimate bullet above" (NYSCEF Doc No. 63, affirmation of defendant's counsel, exhibit 1 at 4). The penultimate bullet point referred to defendant's damages, which included but was not limited to the physical damage to the Premises and the loss of rental income (id. at 3). On February 27, 2015, defendant wrote:
Plaintiff objects to the consideration of the more than 50 emails defendant has submitted, arguing that the parties had stipulated to the "authenticity" of several of them, but not their "admissibility" (NYSCEF Doc No. 56 at 81), in the absence of an affidavit from defendant. While hearsay evidence is generally inadmissible, the court will consider defendant's emails because they are not the only evidence submitted in opposition (see O'Halloran v. City of New York , 78 AD3d 536, 537 [1st Dept 2010] ).
"More generally, how do we provoke some sort of reaction from Bradley? Starting last October, she and her counsel say they want to cooperate, but then go ahead and do whatever they please without advance notice or authorization. It seems pretty clear that Bradley's strategy is to pursue her construction as she pleases and then simply walk away at the end, without paying for anything and leaving us to decide if we want to sue for $ 200K+. So far, except for a couple of letters and a complaint to DOB ... we have been quite passive. You guys are supposedly tough, hard-nosed litigators. Is there anything we can do to get Bradley's attention and force a reaction? Thus far, we are losing all the battles and the war. I would like to change that. Any thoughts?"
(NYSCEF Doc No. 73, affirmation of defendant's counsel, exhibit 11 at 1). Only after receiving defendant's February 27, 2015 email did plaintiff suggest initiating litigation instead of working to secure a stop work order from the New York City Department of Buildings, as plaintiff had initially pursued. Furthermore, defendant favored litigation, writing on March 3, 2015:
"At this point, I would also favor bringing a lawsuit against all of Bradley, her company, the architect and the contractor, alleging trespass, intentional damage to our property and conspiracy to do the same and seeking injunctive relief and damages (including punitive damages) against all of them ... the object is not really to win the case but to get Bradley's attention and cause her maximum trouble until she acts in a civilized manner"
(NYSCEF Doc No. 77, affirmation of defendant's counsel, exhibit 15 at 1). And while defendant claimed that Bradley's initial offer was inadequate, testifying that he "would have held out for more than this or tried, at least" (NYSCEF Doc No. 56 at 111), he admitted telling plaintiff that he wished to pursue "punitive damages for Bradley's wanton, deliberate and continued violation of our rights" (id. at 113-114).
Lastly, in addition to negligence, a party pursuing a legal malpractice claim must prove that such negligence proximately caused his damages (see Russo , 301 AD2d at 67 [stating that "[a] failure to establish proximate cause requires dismissal regardless of whether negligence is established"] ). Defendant identifies two events as the source of his damages: (1) plaintiff's response to Bradley's counteroffer in which plaintiff merely repeated its initial demand; and (2) plaintiff's ill-advised application for injunctive relief (NYSCEF Doc No. 59, defendant's memorandum of law at 25). Plaintiff has demonstrated that defendant has not, and cannot, establish that either episode proximately caused his damages.
Defendant has not argued that he will ultimately prevail in the Bradley Litigation, which is ongoing.
Regarding the first event, defendant posits that he "would have resolved" his dispute with Bradley in May 2015 had plaintiff discussed the proposal Bradley's contractor had raised about repairing two of the three damaged walls (NYSCEF Doc No. 115, affirmation of defendant's counsel, exhibit 53 at 1). However, "speculation on future events are insufficient to establish that the defendant lawyer's malpractice, if any, was a proximate cause of any such loss" ( Brooks v. Lewin , 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [citations omitted] ). Apart from supposition and conjecture, defendant has not presented any admissible evidence that but for plaintiff's failure to pursue the contractor's proposal, he has sustained damages, or that Bradley would have consented to a compromise with respect to a repair of the third wall. In any event, even if such an arrangement was reached, it would have resolved only one aspect of the dispute with Bradley because defendant still wished to pursue monetary damages. Moreover, defendant has not established that he would have agreed to accept Bradley's settlement offer at any time, or that but for plaintiff's negligence, he would have or has negotiated a more favorable monetary settlement (see Gallet, Dreyer & Berkey, LLP v. Basile , 141 AD3d 405, 406 [1st Dept 2016] ).
Incidentally, while defendant testified that the $ 60,000 monthly license fee was "palpably unreasonable" (NYSCEF Doc No. 56 at 41), $ 40,000 of that monthly fee plaintiff had proposed represented the approximate amount of defendant's lost monthly rental income (NYSCEF Doc No. 85, affirmation of defendant's counsel, exhibit 23 at 17).
As to the second event, defendant maintains that plaintiff should not have pursued an injunction without first conducting an adequate investigation into the facts. Preliminarily, defendant's contention that plaintiff failed to advise him that it would withdraw the application for injunctive relief is unfounded. Two weeks after plaintiff received Bradley's settlement offer, defendant's architects received Bradley's revised architectural plans, and advised plaintiff and defendant that the renovation work would no longer directly impact the Premises (NYSCEF Doc No. 98, affirmation of defendant's counsel, exhibit 36 at 3). As a result, the change obviated the need for a license agreement as Bradley's counsel had warned previously (NYSCEF Doc No. 87 at 2). Plaintiff indicated it was unlikely that an injunction would issue (NYSCEF Doc No. 96, affirmation of defendant's counsel, exhibit 34 at 1), and further advised defendant that it would "weaken us to argue the preliminary injunction and lose" (NYSCEF Doc No. 90, affirmation of defendant's counsel, exhibit 28 at 1; NYSCEF Doc No. 95, affirmation of defendant's counsel, exhibit 33 at 1). Here, defendant ignores the effect of Bradley's changes to her plans, which could not have been reasonably anticipated when plaintiff commenced the Bradley Litigation in March 2015 because Bradley only exchanged the revised plans in May. Thus, defendant cannot establish that but for plaintiff's actions, he would have prevailed on the preliminary injunction motion. Consequently, the part of plaintiff's motion for summary judgment dismissing the first counterclaim for legal malpractice is granted.
B. Second Counterclaim for Breach of Fiduciary Duty
"To state a claim for breach of fiduciary duty, a plaintiff must allege the existence of a fiduciary relationship, misconduct by the other party, and damages directly caused by that party's misconduct" ( Castellotti v. Free , 138 AD3d 198, 209 [1st Dept 2016] ). "[A] fiduciary relationship arises between two persons when one of them is under a duty to act or give advice for the benefit of another upon matters within the scope of the relation" ( Oddo Asset Mgt. v. Barclays Bank PLC , 19 NY3d 584, 593-594 [2012], rearg denied 19 NY3d 1065 [2012] [internal quotation marks and citation omitted] ). The existence of a duty is essential and may not be imposed unilaterally (see Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue , 45 AD3d 33, 36-37 [1st Dept 2008], affd 11 NY3d 15 [2008] ). Whether a fiduciary relationship exists involves a fact-specific inquiry (see EBC I, Inc. v. Goldman Sachs & Co ., 5 NY3d 11, 19 [2005] ). A claim for breach of fiduciary duty also requires "the violation of some duty due to an individual, which duty is a thing different from a mere contractual obligation" (see Batas v. Prudential Ins. Co. of Am ., 281 AD2d 260, 264 [1st Dept 2001] [internal quotation marks and citation omitted] ).
A breach of fiduciary duty claim is duplicative of a legal malpractice claim when both are based upon the same facts and seek the same damages (see Barrett v. Goldstein, 161 AD3d 472, 473 [1st Dept 2018] ; accord Cohen , 115 AD3d at 513 ). As applied herein, plaintiff has established that the fiduciary duty counterclaim is grounded upon the same facts as the legal malpractice counterclaim. Defendant has neither attempted to distinguish the two counterclaims nor addressed why the second counterclaim should not be dismissed. Thus, that part of plaintiff's motion for summary judgment dismissing the second counterclaim is granted.
C. First Cause of Action for Breach of Contract
A plaintiff must prove the existence of a contract, plaintiff's performance, defendant's breach, and damages (see Harris v. Seward Park Hous. Corp ., 79 AD3d 425, 426 [1st Dept 2010] ). Absent evidence showing that an enforceable agreement had been reached, a breach of contract claim shall be dismissed (see Aksman v. Xiongwei Ju , 21 AD3d 260, 261-262 (1st Dept 2005), lv denied 5 NY3d 715 [2005] ).
Plaintiff has demonstrated its entitlement to summary judgment on the issue of defendant's liability on this cause of action. The Retainer provides that plaintiff shall represent defendant in the " 44 and 46 East 82nd Street Townhouse Dispute " (NYSCEF Doc. No. 37 at 1), and the documentary and testimonial evidence establishes plaintiff's performance, defendant's breach, and plaintiff's damages.
Defendant, in opposition, argues that plaintiff is not entitled to summary judgment because it failed to substantially perform under the terms of the Retainer. He relies, in part, upon the statement of client's rights attached to the Retainer, which every attorney with an office in this state must post (see 22 NYCRR 1210.1 ). At issue herein are 22 NYCRR 1210.1 (6), which partially states that a client is "entitled to be kept reasonably informed as to the status of your matter," and 22 NYCRR 1210.1 (7), which partially states that a client is "entitled to have your legitimate objectives respected by your attorney."
"Under New York law, a party's performance under a contract is excused where the other party has substantially failed to perform its side of the bargain or, synonymously, where that party has committed a material breach" ( Merrill Lynch & Co. v. Allegheny Energy, Inc ., 500 F3d 171, 186 [2d Cir 2007], citing Hadden v. Consolidated Edison Co. of NY , 34 NY2d 88, 97 n 9 [1974] ; see also Grace v. Nappa , 46 NY2d 560, 567 [1979], rearg denied 47 NY2d 952 [1979] ). The purported breach must be "so substantial that it defeats the object of the parties making the contract" ( Catlyn & Derzee, Inc. v. Amedore Land Developers, LLC , 132 AD3d 1202, 1206-1207 [3d Dept 2015] [internal quotation marks and citations omitted] ). Therefore, where an alleged breach is based on "technical or unimportant omissions or defects in the performance" ( Porter v. Traders' Ins. Co ., 164 NY 504, 509 [1900] ), is of "trivial or inappreciable importance" ( Jacob & Youngs, Inc. v. Kent , 230 NY 239, 245 [1921], rearg denied 230 NY 656 [1921] ), or where the "failure to comply fully with the terms of the contract was ‘inadvertent or unintentional’ " ( Botco Devs. v. Mikealice Mgt. Corp. , 291 AD2d 871, 871 [4th Dept 2002] [internal quotation marks and citations omitted] ), a party that substantially performs shall not be precluded from recovery. In determining whether a party has substantially performed, the court must look at "the ratio of the performance already rendered to that unperformed, the quantitative character of the default, the degree to which the purpose behind the contract has been frustrated, the willfulness of the default, and the extent to which the aggrieved party has already received the substantial benefit of the promised performance" ( Hadden , 34 NY2d at 96 [citations omitted] ).
"A determination whether there has been substantial performance is to be answered, ‘if the inferences are certain, by the judges of the law’ " ( Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. , 86 NY2d 685, 695-696 [1995], quoting Jacob & Youngs, Inc. , 230 NY at 239 ). Here, defendant has raised a triable issue of fact that precludes granting summary judgment. While Desiderio avers that defendant never directed plaintiff to make a counteroffer, defendant testified that he was never told of Bradley's request for a counteroffer (NYSCEF Doc No. 56 at 48). Additionally, defendant complained that plaintiff merely repeated the initial offer without consulting him. Moreover, defendant had conveyed to plaintiff that one of his objectives was the repair of the three walls damaged by Bradley's renovation work (id. at 64-67). When Bradley's contractor proposed repairs for two of the three walls, plaintiff agreed that this avenue should be explored (id. at 66). Nevertheless, plaintiff failed to raise this issue when it conveyed defendant's counteroffer to Bradley's counsel. These issues bear directly on plaintiff's contractual obligations under the Retainer to keep defendant reasonably informed and to respect his objectives, and whether plaintiff substantially performed. Consequently, the motion insofar as it seeks summary judgment on the first cause of action for breach of contract is denied.
D. Second Cause of Action for an Account Stated
"An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other" ( Shea & Gould v. Burr , 194 AD2d 369, 370 [1st Dept 1993] [internal quotation marks and citation omitted] ). The cause of action "exists where a party to a contract receives bills or invoices and does not protest within a reasonable time" ( Russo v. Heller , 80 AD3d 531, 532 (1st Dept 2011] [internal quotation marks and citation omitted] ), or where partial payment has been made (see Morrison Cohen Singer & Weinstein, LLP v. Waters , 13 AD3d 51, 52 [1st Dept 2004] ). "In the context of an account stated pertaining to legal fees, a firm does ‘not have to establish the reasonableness of its fee’ " ( Lapidus & Assoc., LLP v. Elizabeth St., Inc ., 92 AD3d 405, 405 [1st Dept 2012] [internal quotation marks and citation omitted] ).
Plaintiff has demonstrated that defendant retained the invoices rendered between December 15, 2014 and June 15, 2015 without objection and made partial payments on them (NYSCEF Doc No. 47, Desiderio aff, exhibit N at 23; NYSCEF Doc No. 48 at 5). Thus, a balance did not begin to accrue until the March 15, 2015 invoice.
Defendant's assertion that he was reviewing the invoices is too general to defeat the claim (see Schulte Roth & Zabel, LLP v. Kassover , 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 [2011] ), and he was unable to articulate a specific objection as to any of the invoices at his deposition. Furthermore, defendant failed to object to a specific amount or invoice until he terminated plaintiff's services, and plaintiff elected to pursue litigation (see Mintz & Gold LLP v. Daibes , 125 AD3d 488, 489 [1st Dept 2015] ). As for the invoice dated July 15, 2015, defendant promptly raised an objection within five days of receipt (NYSCEF Doc No. 113, affirmation of defendant's counsel, exhibit 51 at 1). Thus, plaintiff is entitled to summary judgment on liability only as to those invoices rendered prior to July 15, 2015.
E. The Third Cause of Action for Quantum Meruit and the Fourth Cause of Action for Unjust Enrichment
In view of the foregoing, the court need not reach the merits of the quasi-contract claims (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co. , 70 NY2d 382, 388 [1987] ). Furthermore, as defendant does not refute the existence of a valid contract governing this dispute, the court, upon searching the record (see CPLR 3212 [b] ; Princes Point LLC v. Muss Dev. L.L.C ., 30 NY3d 127, 134 [2017] ), grants summary judgment to defendant dismissing the third and fourth causes of action.
F. Defendant's Affirmative Defenses
A party's affirmative defense may be dismissed "where such evidence shows that the defense is ‘without merit as a matter of law’ " ( Calpo-Rivera v. Siroka , 144 AD3d 568, 568 [1st Dept 2016] ). In this instance, plaintiff has demonstrated the lack of merit to the affirmative defenses. The first, second, third, fifth, sixth, ninth, tenth, eleventh, twelfth, and thirteenth affirmative defenses pertain to the merits of the counterclaims, but as discussed supra , neither of the counterclaims is viable. Regarding the fourth and seventh affirmative defenses, the facts as alleged in the complaint plainly plead claims for breach of contract and for an account stated, and plaintiff may -- at least initially -- plead unjust enrichment and quantum meruit as an alternative to a breach of contract claim (see Hochman v. LaRea , 14 AD3d 653, 654-655 [2d Dept 2005] ). The documentary evidence does not compel a different result with regards to the eighth affirmative defense. Thus, plaintiff is entitled to dismissal of defendant's affirmative defenses.
Accordingly, it is
ORDERED that the motion of plaintiff Adam Leitman Bailey, P.C. for summary judgment (motion sequence no. 002) is granted to the extent of granting partial summary judgment in favor of plaintiff and against defendant Russell H. Pollack on the second cause of action but only as to four unpaid invoices rendered prior to July 15, 2015, and granting plaintiff summary judgment dismissing defendant's counterclaims and affirmative defenses, and the balance of the motion is otherwise denied; and it is further
ORDERED that the Clerk shall enter judgment in favor of plaintiff against defendant in the following amounts:
a) seven thousand one hundred nineteen dollars and fifty cents ($ 7,119.50) with nine percent (9%) interest from June 15, 2015;
b) thirty-four thousand eighty-one dollars and twenty-six cents ($ 34,081.26) with nine percent (9%) interest from May 15, 2015;
c) fifty thousand two hundred ninety-seven dollars and eighty-seven cents ($ 50,297.87) with nine percent (9%) interest from April 15, 2015;
d) seventeen thousand two hundred seventy dollars and eighty-one cents ($ 17,270.81) with nine percent (9%) interest from of March 15, 2015;
until the date of this decision on this motion, with interest thereafter at the statutory rate, together with costs and disbursements as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further
ORDERED that the second cause of action insofar as it relates to the invoices that predate July 15, 2015 is severed, and the first cause of action and so much of the second cause of action insofar as it relates to the unpaid invoice dated July 15, 2015 shall continue; and it is further
ORDERED that upon searching the record, summary judgment is granted to defendant on the third cause of action and fourth cause of action against him, and the third cause of action and fourth cause of action are dismissed against him.