Summary
rejecting malpractice claims as barred by collateral estoppel where "the issues on which [the plaintiff] claim[ed] malpractice were litigated and decided" in a habeas proceeding
Summary of this case from Rose v. Robert A. Soloway & Rothman, Schneider, Soloway & Stern LLPOpinion
14 Civ. 7082 (PAE)
09-30-2015
LUIS FELIPE MORENO-GODOY, Plaintiff, v. GALLET DREYER & BERKEY, LLP, ROGER L. STAVIS, ESQ., and STEVEN R. KARTAGENER, ESQ., Defendants.
OPINION & ORDER
:
This case involves a lawsuit by a convicted defendant, principally asserting that his appellate counsel misapplied $100,000 of a retainer fee.
On August 4, 2014, plaintiff Luis Felipe Moreno-Godoy ("Godoy"), proceeding pro se, filed a civil complaint, Dkt. 1 (the "Complaint" or "Compl."), bringing claims against both the counsel that represented him, and a lawyer who attempted unsuccessfully to represent him, in his criminal appeals. His core claim is that he paid a $100,000 retainer to Steven R. Kartagener, Esq., (the "Kartagener retainer") to join his existing appellate team, but that, when Kartagener determined that he could not represent Godoy, Kartagener did not return the retainer. Rather, Godoy alleges that, without his consent, Kartagener paid the $100,000 to another of Godoy's appellate attorneys, Roger L. Stavis, Esq., of the law firm Gallet Dreyer & Berkey, LLP ("GDB"), which kept the money despite Godoy's repeated written demands for its return. Godoy brings three claims against each defendant, alleging breach of contract, breach of fiduciary duty, and malpractice.
And this alleged lapse by Kartagener on which Godoy bases this malpractice claim wholly duplicates his contract claim. In both claims, he alleges that there was a contract for the provision of services, that Godoy paid for those services, and that Kartagener did not return Godoy's money while not providing the services for which Godoy contracted. The Court therefore dismisses the malpractice claim. Cf. Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d 380, 380 (1st Dep't 2002) (dismissing claims for breach of contract as "merely redundant pleadings" of the malpractice claims because they were "based upon defendants' purported failure to exercise due care and to abide by professional standards").
CONCLUSION
For the foregoing reasons, the Court denies Godoy's motion for default judgment against Kartagener; grants defendants' motions to dismiss Godoy's claims for breach of fiduciary duty and malpractice; but denies defendants' motions to dismiss Godoy's claims for breach of contract. The Clerk of Court is directed to close the motions pending at docket 11, 40, 41, and 43. An order will follow shortly as to next steps in this case.
Embedded in Godoy's papers are 'motions' for discovery of certain materials. See Dkt. 1-6, at 24-26; Compl. at 29; Godoy Opp. Br. 1, 9-10; Godoy Kartagener Opp. Br. 4-6. Those motions, for the time being, are denied, without prejudice to Godoy's right to pursue such discovery once the period for discovery begins. --------
SO ORDERED.
/s/_________
Paul A. Engelmayer
United States District Judge
Dated: September 30, 2015
New York, New York