Opinion
Index No. CV-2154-19/SM
10-28-2021
LIEB AT LAW, P.C., Plaintiff, v. Susan LODATO and Gilla Rosswaag, Defendants
Upon the following papers numbered 1 to 40 read on this motion by plaintiff for summary judgment pursuant to CPLR 3212 and for dismissal of counterclaims by Notice of Motion/Order to Show Cause and supporting papers 1-3,16 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 17-9,34,35,36 ; Replying Affidavits and supporting papers 37,38,39,40 ; Filed papers; Other exhibits: 4-15,20-33 ; (and after hearing counsel in support of and opposed to the motion), it is
ORDERED that the motion by plaintiff for summary judgment pursuant to CPLR 3212, is denied, as there are material issues of fact which must be determined at a trial (see Alvarez v Prospect Hospital , 68 NY2d 320,324 [1986] ; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851,853 [1985] ; Zuckerman v City of New York , 49 NY2d 557,562 [1980] ); and it is further
ORDERED that the part of plaintiff's motion seeking to dismiss defendants’ first counterclaim (and sixth defense) alleging legal malpractice, as being time-barred by the three-year statute of limitations, is granted, except to the extent that the first counterclaim seeks to offset as a shield for equitable recoupment purposes, a sum equal to an award of legal fees to the plaintiff, and not to the extent that it seeks affirmative relief, which is time-barred. The counterclaim alleging legal malpractice relates to the plaintiff's performance under the same retainer agreement pursuant to which the plaintiff would recover and therefore this counterclaim falls within the permissive ambit of CPLR 203(d) ; and it is further
ORDERED that the part of plaintiff's motion seeking to dismiss defendants’ second counterclaim alleging breach of contract, is granted. The counterclaim of breach of contract is duplicative of the counterclaim alleging legal malpractice and does not allege distinct damages; and it is further
ORDERED that the part of plaintiff's motion seeking to dismiss defendants’ third counterclaim alleging breach of fiduciary duty owed to defendants, is granted. The counterclaim arises from the same facts as the legal malpractice counterclaim and does not allege separate and distinct damages from those caused by the alleged malpractice; and it is further
ORDERED that the issue raised by plaintiff in its reply papers, that defendants’ opposition papers were one day late and should not be considered by the Court, is denied. Plaintiff has failed to demonstrate the accrual of prejudice for the one day of tardiness, which under the circumstances appears to be inadvertent.
Plaintiff law firm seeks recovery for past due legal fees in the sum of $10,405.00, with statutory interest from 11/04/2016, allegedly earned pursuant to a signed written retainer agreement dated 11/05/2015 (hereinafter "retainer agreement"), which included legal representation "to perform due diligence regarding an anticipated appeal concerning a Surrogate Court matter under Index No. 382P2008/C and representation concerning said appeal should it ensue," and a signed supplemental retainer agreement dated 12/10/2015 (hereinafter "supplemental agreement" and collectively referred to as "retainer agreements"), which expanded "the scope of representation to include pending litigation under Index No. 611065/2015" in the Supreme Court, Suffolk County.
Payments were to be made by defendants (Susan Lodato, who is 81 years of age and Gilla Rosswaag, who is 87 years of age, as of 06/02/2021), pursuant to invoice, and a last payment was made on 05/05/2016 in the sum of $16,750.00, leaving an unpaid balance of $10,405.00. However, on September 15, 2016, defendants discharged plaintiff, purportedly for good cause, from any further legal representation in the case before the Supreme Court, Suffolk County, captioned as Nannette Stanya v Susan Lodato and Gilla Rosswaag , under Index No. 611065/2015 (Garguilo, J., hereinafter "Supreme Court action"), the matter referred to in the supplemental agreement. The discharge was claimed to be "due to poor legal advice, substandard services performed and lack of communication by plaintiff." Plaintiff law firm was substituted and replaced by The Law Offices of David P. Fallon, PLLC., with a duly executed Consent to Change Attorney form dated 09/15/2016 (also the attorney of record for the instant matter).
At the same time, plaintiff law firm asserted a retaining lien on its legal file, pursuant to Judiciary Law § 475 for defendants’ unpaid balance for legal fees of $10,405.00. Defendants incoming counsel responded with a suggestion to plaintiff law firm that it return its file without seeking additional legal fees and stated that defendants "dispute the bills sent and demand a refund of the monies previously paid."
The Supreme Court matter was ultimately settled on 12/06/2016, by "So Ordered" Stipulation (Garguilo, J.), which, inter alia , withdrew the motion and cross-motion for summary judgment, and by Stipulation of Settlement of the same date (Garguilo, J.), which settled the lawsuit with defendants’ agreement to purchase Stanya's 1/3 interest in the real property pursuant to a delineated price and schedule of payments.
On 10/04/2016 plaintiff served defendants with a Right to Arbitrate Fee Dispute Notice, pursuant to Part 137 of the Rules of the Chief Administrator, Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York and the Standards and Guidelines as of 10/03/2001, as amended 01/31/2014, which offer for binding arbitration was not utilized by defendants within the 30 days allowed under the arbitrationrules.
THE INSTANT LAWSUIT :
In excess of three years later, plaintiff commenced the instant lawsuit in District Court dated 11/25/2019, against defendants Lodato and Rosswaag (collectively "defendants"), for actions alleging breach of contract, unjust enrichment, quantum meruit, and an account stated, demanding judgment in the sum of $10,405.00 for its unpaid invoices for legal services rendered, together with statutory interest from 11/04/2016.
After a consent adjournment, defendants filed a Verified Answer dated 03/13/2020, which denied the allegations, and alleged a first counterclaim for legal malpractice, noting although plaintiff waited over 3 years before filing the instant claims to allow expiration of the 3 year statute of limitations, defendants are seeking to offset as a shield for equitable recoupment purposes, a sum equal to any damages asserted by plaintiff for legal fees, pursuant to CPLR 203(d) ; a second counterclaim for breach of contract to perform legal services under the retainer agreements; and a third counterclaim for breach of fiduciary duty owed to defendants by plaintiff. Defendants demand damages for the full refund of the legal fees paid to plaintiff (disgorgement of legal fees), as well as dismissal of plaintiff's complaint.
MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF :
Plaintiff now moves for summary judgment in its favor, for unpaid attorney fees in the sum of $10,405.00, together with statutory interest from 11/04/2016, and also seeks to dismiss defendants counterclaims. In support of the motion, Dennis C. Valet, Esq.("Valet") asserts in his affirmation that defendants "made multiple payments pursuant to the retainer agreement," and "readily admit that they did not pay the invoice presented by plaintiff [for the unpaid sum of $10,405.00]." Valet asserts that "plaintiff was diligent in their representation of defendants, offering competent legal advice and representation." Valet also asserts that the factual allegations of defendants do not amount to a discharge for cause, but consist of dissatisfaction with reasonable strategic choices made by plaintiff regarding litigation. He contends that plaintiff made certain strategic decisions which were "made only to rebut the allegations in the underlying action," and "defendants cannot show how the arguments actually harmed them in the action, making only conclusory statements that they were forced to settle" (which is "something they wanted to do all along"). Valet also contends the settlement demand obtained by plaintiff after the filing of those particular arguments, was more favorable than the settlement amount ultimately agreed upon by defendants "and their present counsel" after indicating his "displeasure with plaintiff's legal strategy."
Valet further contends that the counterclaim asserted by defendants for legal malpractice is barred by the 3 year statute of limitations, and that 2 of the 3 counterclaims should be dismissed as being duplicative of the legal malpractice claim, as not alleging facts or damages which are unique and distinct from the claim for legal malpractice. However, Valet acknowledges that CPLR 203[d] does permit an equitable recoupment for an untimely statute of limitations counterclaim, to the extent that the counterclaim arose out of the same transaction, but it may only be used as a shield and not for affirmative relief. Defendants oppose the relief sought by plaintiff, asserting there are material issues of fact which preclude the granting of summary judgment to plaintiff, and dismissal of defendants’ counterclaims, which require a trial. In support, defendants assert that plaintiff's invoices contained double billing, billing for poor quality of work, billing for work showing a lack of communication with defendants, and other instances showing plaintiff's failures to perform legal services competently.
As examples of these deficiencies, defendants assert they were billed on 03/02/16 for $160.00 for legal research "regarding ability of co-defendants’ presence during depositions," stating any competent attorney "should know that all parties can attend EBT's." Also, defendants assert they were billed on 07/27/16 in the sum of $640.00 for legal research "regarding how the absence of a lis pendens will affect a potential purchaser selling property without a notice of pendency," stating any competent attorney should "simply call your title company to inquire as to the effect of pending litigation on a sale if you are unsure ... with a five-minute phone call." And "any competent attorney would know that the title company will make your client sign an affidavit of title in which the selling client must attest that no litigation is pending related to the property-there was no need to research any law on that issue."
Defendants continue with examples, asserting they were billed on 07/27/16 for $1,480.00 for research "concerning estate ability to transfer rights of a lawsuit and determination of standing," then billed on 07/28/16 and 08/02/16 for an additional sum of $1,560.00 on the same issue, stating "it is basic horn book law that an estate can transfer an asset to the beneficiaries named in a will or to the heirs at law, if no will exists ... that is what estates do." Defendants also assert they were charged on 04/19/16 and 05/05/16 (for $140.00 and $306.00, respectively), "for meetings between attorneys in plaintiff's firm." And defendants claim they were billed on 07/11/16 for their attorneys to reject a cross motion as untimely, instead of simply providing more time to respond.
Defendants claim that plaintiff's billing rate is "not justifiable," and their "quality of work was poor at best and their billing evidenced the same." As an example, defendants take issue with plaintiff's billing for trying to invalidate defendants’ right of first refusal, which defendants had exercised on March 9, 2015, instead, asserting that "defendants wanted to enforce (emphasis added) the right of first refusal as their affidavits state." Also, defendants contend that plaintiff submitted on a prior motion for summary judgment made by plaintiff, "affidavits which opposed a prior motion instead of preparing new affidavits."
Defendants also contend they fired plaintiff law firm "for cause," thereby vitiating any entitlement to compensation (see Callaghan v Callaghan , 48 AD3d 500, 501 [2nd Dept 2008] ).
In their reply papers, plaintiff first rejects defendants opposition papers, as being one date late, and urges the Court to disregard them and not consider their contents in the pending motion. Plaintiff points to the fact that it noticed the motion to be returnable on June 8, 2021, which is still confirmed on the e-court systems page on-line. This would make any opposition papers returnable within 7 days, or by June 1, 2021. However, the affirmation of David P. Fallon, Esq., and the affidavits of Susan Lodato and Gilla Rosswaag, were all dated June 2, 2021, incontrovertibly showing their submission was one day late.
Plaintiff's reply papers then assert that defendants have not shown that defendants fired plaintiff for cause, claiming plaintiff pursued a reasonable legal strategy for the litigation; that defendants were not harmed by the arguments made by plaintiff on behalf of defendants, as the settlement demand procured by plaintiff was more favorable to defendants than the settlement amount ultimately agreed upon by defendants; the billing was reasonable, and plaintiff points to its pursual of legal research concerning the issue of co-defendants’ presence during depositions, as Stanya had taken "a particularly adversarial approach" to this issue and plaintiff wished to be in a position to rebut this issue with the latest statutory and case law; and plaintiff further defends its use of legal research on 07/20/16 concerning whether a "bona fide purchaser for value has constructive notice of a lawsuit despite the lack of a filed lis pendens ," because defendant requested it, and claims the billing reflects this ("... advised client in response to their inquiry ..."). Plaintiff also defends its further use of legal research concerning the estate's ability to transfer rights of a lawsuit and determination of standing, asserting this was performed to oppose the motion of the underlying plaintiff (Stanya), who "had issues of standing due to the action being brought in the name of the individual beneficiary as opposed to the estate, who had the rights to the claim." In its defense, plaintiff asserts "sometimes detailed research is required to find novel, nuanced, and winning legal arguments."
Plaintiff also contends that an essential element for malpractice is actual damages suffered, which plaintiff asserts defendants have failed to demonstrate. Plaintiff argues that defendants stated that they "were able to settle the Stanya action by paying to her the amount demanded, so that defendants received Stanya's 1/3 interest in the real property, which is what defendants wanted all along. " Plaintiff rhetorically questions, if defendants settled for what they wanted all along, how were they damaged?
Finally, plaintiff contends that its fees were reasonable, and suggests that their measurement against the opinion of defendants’ counsel, David P. Fallon, Esq., red-flags application of the advocate-witness rule, which states, inter alia , that an attorney's testimony, where he has inserted himself as a fact witness, should be disregarded on an issue being alleged as a material issue of fact (see Fuller v Collins , 114 AD3d 827 [2nd Dept 2014] ; see also Baram v Baram , 154 AD3d 912 [2nd Dept 2017] ; see also Rule 3.7 of the Rules of Professional Conduct [22 NYCRR 1200.00]).
UNDERLYING BASIS FOR LEGAL FEE LAWSUIT :
In further support of its summary judgment motion, plaintiff acknowledges the history of Nannette Stanya v Susan Lodato and Gilla Rosswaag , in the Supreme Court, Suffolk County, under Index No. 611065/2015 (Garguilo, J., hereinafter "Supreme Court action"), as being the underlying basis for the instant claims of unpaid legal fees. The action was brought by Nannette Stanya ("Stanya"), the surviving daughter and sole beneficiary of defendants’ deceased partner, Anthony Accetta ("Accetta" died testate on 11/04/2007), and sought contractual specific performance of a Stipulation dated 02/05/2013 made in a separate action in the Surrogate's Court, Suffolk County, under File No. 382P2008/A/B/C, of that part which required the parties (Stanya, Lodato and Rosswaag) to market for sale until August 31, 2013 , real property located at 256 East Montauk Highway, Hampton Bays, NY 11946 ("premises," also known as "Skippers on the Bay," and the partnership rentals identified as "Skippers Motel and Cottages"), owned by each of them in 1/3 undivided interests (Stanya having received her undivided 1/3 share of the premises by deed dated 05/10/2008, which was recorded on 06/02/2008, through Letters Testamentary dated 03/13/2008 issued to Vincent LaVerda ["Executor"), under which Stipulation defendants Lodato and Rosswaag retained "a right of first refusal to any price considered acceptable to all parties."
Plaintiff contends that on 05/04/2014 , over eight months after expiration of the part of the Stipulation that required Stanya, Lodato and Rosswaag to market "for a listing price of $1,999,999 until 8/31/2013, and with a floor price of $1,600,000," Stanya presented defendants Lodato and Rosswaag with an all-cash deal in a proposed contract of sale for the sum of $1,700,000 from a non-party purchaser, Joseph Mure, Jr., which was rejected by both defendants pursuant to their right of first refusal under the Stipulation dated 02/05/2013, by Notice dated 03/09/2015 , and in compliance with the Order of the Surrogate Court dated 02/26/2015 , which had ordered, inter alia , that notice of intention to exercise the right of first refusal be given within 10 days of the Order.
During this time frame another attorney, Leo P. Davis, Esq. was hired by the parties to oversee the successful discharge and satisfaction of the three mortgages encumbering the real property, thereby making it impediment free, and facilitating it for an all-cash sale.
In their Notice dated 03/09/2015, defendants Lodato and Rosswaag also proposed that they buy out Stanya's 1/3 share for the net sum of $538,333.33 pursuant to the terms of the Stipulation dated 02/05/2013, and pursuant to the price and terms offered by the proposed non-party buyer, Joseph Mure, Jr., with a proposed closing date of 04/09/2015, which offer was rejected by Stanya.
Plaintiff further asserts that though defendants had exercised their right of first refusal dated 03/09/2015, no remuneration or other benefit had accrued to Stanya over the period of time from acquiring her 1/3 share by deed dated 05/10/2008 in the real property, or from her 1/3 interest as partner in the partnership with defendants in the rental business identified as "Skippers Motel and Cottages," though defendants resided at the premises rent free, collected rental revenue, provided their family members and friends with use of the premises at no cost, and continued to refuse to sell the real property.
By Order dated 07/17/2015, the Surrogate Court vacated its prior Order dated 02/26/2015, and dismissed plaintiff Stanya's petition based upon a lack of jurisdiction, asserting its jurisdiction did not extend to matters involving controversies between living persons. The Court criticized respondents Lodato and Rosswaag, for entering into a "So Ordered" Stipulation in the Surrogate's Court, only to later argue the Surrogate's Court lacked subject matter jurisdiction over the "So Ordered" Stipulation because the disputed issue before the court involved living persons, when petitioners (Stanya, and Vincent LaVerda, as Executor) attempted to comply with the terms of the Stipulation of 02/26/2015.
Thereafter, on 11/23/2015, Stanya commenced her action in the Supreme Court, Suffolk County, by filing the summons and complaint dated 10/16/2015, under Index No. 611065/2015, which sought specific performance of the Stipulation of the Surrogate's Court, Suffolk County, dated 02/05/2013, claiming a binding Agreement to market and sell the real property contained in the Stipulation by 8/31/2013, with a right of first refusal reserved by defendants Lodato and Rosswaag therein, though after its exercise by defendants, they refused to consummate the purchase of Stanya's interest; sought damages for breach of contract of the said Stipulation; and sought judgment ordering an Accounting of the partnership assets of "Skippers on the Bay."
Defendants filed their Verified Answer dated 12/24/2015, which denied the allegations and asserted its affirmative defenses.
Thereafter, by assignment and bequest of partnership interest dated 07/06/2016, the Executor bequeathed the 1/3 partnership interest in the Skipper's Motel and Cottages Limited Partnership (as well as all claims and choses in action), and 1/3 interest in the existing Partnership known as Skippers Motel and Cottages, owned by the Estate, to Stanya.
Ultimately, the Supreme Court matter was withdrawn on 12/06/2016, by "So Ordered" Stipulation (Garguilo, J.), which, inter alia , withdrew the motion and cross-motion for summary judgment, and by Stipulation of Settlement of the same date (Garguilo, J.), which settled the lawsuit with defendants Lodato and Rosswaag agreeing to purchase Stanya's 1/3 interest in the real property at an acceptable price and schedule of payments.
APPLICABLE LAW :
A client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (see Campagnola v Mulholland, Minion & Roe , 76 NY2d 38, 43 [1990] ; Doviak v Finkelstein & Partners, LLP. , 90 AD3d 696 [2nd Dept 2011] ). But, "an attorney who is discharged for cause, however, is not entitled to compensation or a lien" (see Callaghan v Callaghan , 48 AD3d 500, 501 [2nd Dept 2008] ).
To establish a claim to recover damages for legal malpractice, "a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (see Noone v Stieglitz , 59 AD3d 505, 506-507 [2nd Dept 2009], citing Rudolf v Shane, Dachs, Stanisci, Corker & Sauer , 8 NY3d 438, 442 [2007] ; see also Burbige v Siben and Ferber , 152 AD3d 641, 642 [2nd Dept 2017] ).
Pursuant to the attorney judgment rule, "selection of one among several reasonable courses of action does not constitute malpractice" (see Rosner v Paley , 65 NY2d 736, 738 [1985] ; Leon Petroleum, LLC. v Carl S. Levine & Associates, P.C. , 122 AD3d 686 [2nd Dept 2014] ). "To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence" ( Id. at 687 ; Ackerman v Kesselman , 100 AD3d 577, 579 [2nd Dept 2012] ). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (see Leon Petroleum, LLC. v Carl S. Levine & Associates, P.C., supra at 687, citing Rudolf v Shane, Dachs, Stanisci, Corker & Sauer, supra at 442; see also Blanco v Polanco , 116 AD3d 892, 894 [2nd Dept 2014] ).
"Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice" (see Locovello v Weingrad & Weingrad , 4 AD3d 208, 208 [1st Dept 2004] ; see also Rosner v Paley, supra at 738).
However, a client's dissatisfaction with reasonable strategic choices regarding litigation does not "as a matter of law, constitute cause for the discharge of an attorney" (see Doviak v Finkelstein & Partners, LLP. , 90 AD3d 696 [2nd Dept 2011] ; Callaghan v Callaghan, supra at 500). In general, "a hearing is required to determine whether a client has cause for discharging an attorney" (see Doviak v Finkelstein & Partners, LLP. , 90 AD3d 696 [2nd Dept 2011] ).
A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital , 68 NY2d 320, 324 [1986] ; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ). The burden then shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Id.; see also CPLR 3212[b] ).A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts and the affidavit shall recite all the material facts and show there is no defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212[b] ). A conclusory affidavit or an affidavit by an individual who lacks personal knowledge of the facts does not satisfy the proponent's prima facie burden (see JMD Holding Corp. v Congress Financial Corp. , 4 NY3d 373 [2005] ).
COURT'S FINDINGS :
Here, the Court finds that there are material issues of fact which preclude the granting of plaintiff's motion for summary judgment and require a trial (see Alvarez v Prospect Hospital , supra ; Winegrad v New York Univ. Med. Ctr. , supra ; Zuckerman v City of New York, supra ). There are issues of fact created by plaintiff's claim it was pursuing reasonable strategic choices on behalf of defendants to rebut allegations in the underlying litigation, and which did not constitute grounds for discharge for cause, which claim is denied by defendants (see Doviak v Finkelstein & Partners, LLP. , supra ; Noone v Stieglitz , supra) .
There are issues of fact created by plaintiff's claim of diligent representation of defendants, which claim is denied by defendants. There are issues of fact created by plaintiff's claim of competent legal advice and representation, which claims are denied by defendants. There are issues of fact created by plaintiff's claim that defendants cannot show they were harmed by plaintiff's decisions, which defendants deny. There are issues of fact created by plaintiff's claim that defendants were not forced to settle, which claim is denied by defendants. There are issues of fact of whether the settlement demands submitted by plaintiff after filing of arguments, were more favorable than the settlement amount ultimately agreed upon by defendants with their substituted counsel. There are issues of fact as to whether plaintiff asserted frivolous defenses and claims to benefit plaintiff, to the detriment of defendants. There are issues of fact as to whether certain defenses and claims asserted by plaintiff were communicated to defendants, before they were asserted by plaintiff, and whether they were defenses and claims defendants did not want asserted, as being contradictory to the goals sought in the litigation by defendants. There are issues of fact of whether certain defenses and claims asserted by plaintiff, contradicted prior positions asserted by defendants. There are issues of fact as to whether plaintiff filed a motion for summary judgment in the Stanya litigation in the Supreme Court, which took the position that the first right of refusal claimed by defendants, was invalid, which was contrary to the goals sought by defendants for the purchase of Stanya's 1/3 ownership in the real property, and whether the motion was supported with updated affidavits from defendants or were older affidavits used by plaintiff without their knowledge, and whether defendants approved the motion's submission.
The Court further finds that the part of plaintiff's motion seeking to dismiss defendants’ first counterclaim (and sixth defense) alleging legal malpractice, as being time-barred by the three-year statute of limitations (see CPLR 214[6] ; Stewart v Berger , 137 AD3d 1103 [2nd Dept 2016] ), is granted, except to the extent that the first counterclaim seeks to offset as a shield for equitable recoupment purposes, a sum equal to an award of legal fees to the plaintiff, and not to the extent that it seeks affirmative relief, which is time-barred (see CPLR 203[d] ; Balanoff v Doscher , 140 AD3d 995 2nd Dept 2016]); Carlson v Zimmerman , 63 AD3d 772 [2nd Dept 2009]. "The defendants’ counterclaim alleging legal malpractice relates to the plaintiff's performance under the same retainer agreement pursuant to which the plaintiff would recover and therefore this counterclaim falls within the permissive ambit of CPLR 203[d]" (see Balanoff v Doscher, supra at 996]).
The Court also finds that the part of plaintiff's motion seeking to dismiss defendants’ second counterclaim alleging breach of contract, is granted. The counterclaim of breach of contract is duplicative of the first counterclaim alleging legal malpractice (see Cummings v Donovan , 36 AD3d 648 [2nd Dept 2007] ); Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]. "This counterclaim is based on the same factual allegations that underlie the malpractice counterclaim and does not allege distinct damages" (see Balanoff v Doscher, supra at 997).
The Court also determines that the part of plaintiff's motion seeking to dismiss defendants’ third counterclaim alleging breach of fiduciary duty owed to defendants, is granted. The counterclaim arises from the same facts as the legal malpractice counterclaim and does not allege distinct damages (see Mecca v Shang , 258 AD2d 569 [2nd Dept 1999] ). It is "duplicative of the counterclaim alleging legal malpractice, as it involves the same underlying facts and does not allege damages separate and distinct from those caused by the alleged malpractice" (see Balanoff v Doscher, supra at 997).
Finally, the Court finds that the issue raised by plaintiff in its reply papers, that defendants’ opposition papers were one day late and should not be considered by the Court, is denied. Plaintiff has failed to demonstrate the accrual of prejudice for the one day of tardiness, which under the circumstances appear to be inadvertent (see generally Matter of Gasby v New York City Housing Authority/Walt Whitman Houses , 142 AD3d 1018 [2nd Dept 2016] ; CPLR 2001 ]).
The foregoing constitutes the decision and order of this Court.