Opinion
INDEX NO. 152694/2018
03-06-2019
JULIA AN-JUNG, Plaintiff, v. ROWER LLC and ALYSSA ROWER Defendants.
NYSCEF DOC. NO. 32 PRESENT: HON. FRANCIS A. KAHN , III Justice MOTION DATE N/A MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 28, 29, 31 were read on this motion to/for Dismiss complaint under CPLR 3211[a][1] and [7].
This action arises out of an attorney-client relationship that existed between Plaintiff and Defendant Alyssa Rower, Esq. ("Rower") as well as her law firm Defendant Rower, LLC. Plaintiff retained the law firm of Aronson, Mayefsky & Sloan, LLP ("Aronson") in 2016 to represent her in a matrimonial proceeding. Rower was an associate at Aronson at that time and performed work on behalf of Plaintiff.
In January 2017, Rower left Aronson to form her own firm, Rower, LLC. Plaintiff was allegedly asked by Rower to retain her new firm and Plaintiff signed a retainer agreement with Rower, LLC soon thereafter. Rower, Rower, LLC and its employees continued to perform legal services for Plaintiff until December 2017 when another firm was substituted as counsel for Plaintiff. It is undisputed that during the attorney-client relationship the Defendants billed Plaintiff for services in the amount of $145,014.00.
In the complaint, the facts alleged focus nearly exclusively on Defendants' billing practices during the period of representation. The allegations made include: the total amount billed, the rates charged by each employee, the justification or lack thereof for the rates charged by each employee and the amounts billed for particular services. The Plaintiff asserts five causes of action against Defendants as follows: [1] breach of contract and the implied covenant of good faith and fair dealing, [2] unjust enrichment, [3] breach of fiduciary duty, [4] fraud, and [5] negligence. Plaintiff seeks as compensatory damages "at least" $93,920.00 on each cause of action along with interest and attorney's fees.
The Defendants moved, pre-answer, to dismiss the entire complaint pursuant to CPLR 3211[a][1] and [7].
On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211[a][7], the allegations contained in the complaint must be presumed to be true and liberally construed (Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]; Schulman v Chase Manhattan Bank, 268 AD2d 174 [2d Dept 2000]). In determining such a motion "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
In certain situations, however, the presumption falls away when bare legal conclusions and factual claims contained in the complaint are flatly contradicted by evidence submitted by the defendant (Kantrowitz & Goldhamer, P.C. v Geller, 265 AD2d 529 [2d Dept 1999]; Meyer v Guinta, 262 AD2d 463 [2d Dept 1999]). When the defendant offers such evidence, the court "must determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Kantrowitz & Goldhamer, P.C. v Geller, supra).
A motion to dismiss pursuant to CPLR §3211[a][1] may only be granted where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Jaslow v Jaslow, 279 AD2d 611 [2d Dept 2001]; Brunot v Brunot, 266 AD2d 421 [2d Dept 1999]).
Defendants' argument that the causes of action for [1] breach of contract, [2] unjust enrichment, [3] breach of fiduciary duty and [4] fraud must all be dismissed as duplicative of the Plaintiffs' claim of negligence fails. Defendants' attempt to characterize the complaint as one principally stating and/or alleging an action for professional negligence is misplaced. Plaintiff does not seek damages for an unacceptable outcome in her litigation nor does she claim Defendants provided her with faulty legal counsel. That is the essence of a legal malpractice claim (see Davis v Klein, 88 NY2d 1008 [1996]; Hand v. Silberman, 15 AD3d 167 [2d Dept 2005]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561 [2d Dept 2003]).
A fair overall reading of the complaint reveals that Plaintiff's grievance against Defendant is overbilling, not professional negligence. Although Plaintiff's negligence cause of action alleges a breach of the standard of care, it does not turn "on the quality or content of the legal advice that defendants rendered to plaintiffs, let alone a finding that the defendants failed to meet professional standards in rendering legal advice" to Plaintiff (see Johnson v Rose, Misc3d___, 2014 NY Misc. LEXIS 4052014 [Sup Ct, NY County 2011]). As such, Plaintiff's first four causes of action are not duplicative of her negligence claims (see Postiglione v Castro, 119 AD3d 920, 922 [2d Dept 2014]; Cherry Hill Mkt. Corp. v Cozen O'Connor P.C., 118 AD3d 514, 515 [1st Dept 2014]).
As to the sufficiency of the Plaintiff's negligence claim, based upon the nature of a professional malpractice claim as analyzed above and that the gravamen of the complaint concerns excessive billing, the fifth cause of action fails to state a claim of either negligence or legal malpractice (see, Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]).
As to Plaintiff's fourth cause of action, "[t]o properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance" (Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185, 1188-1189 ; see also Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553 [2009]).
While incontrovertible proof of fraud is not required at the pleading stage, CPLR 3016[b] mandates particularity such that elementary facts from which misconduct may be inferred must be stated (see Eurycleia Partners, LP v Seward & Kissel, LLP, supra). Allegations of fraud should be dismissed as insufficient where the claim is unsupported by specific and detailed allegations of fact in the pleadings (see Callas v Eisenberg, 192 A.D.2d 349 [1st Dept 1993]; see also Ben-Zvi v Kronish Lieb Weiner & Hellman LLP, 278 AD2d 167 [1st Dept 2000])
Defendants are correct that Plaintiff's complaint fails to identify what misrepresentations were calculatedly made by each Defendant to induce the Plaintiff to pay excessive legal fees. In fact, Defendants' overbilling and misconduct is alleged by Plaintiff to have been "gross", "blatant" and accomplished "flagrantly". The only supposed misrepresentations attributed to the Defendants in the complaint were the bills Plaintiff received from Defendants and Plaintiff does not contend the bills contained overtly false or deceptive information. Instead, Plaintiff describes that it is "impossible to determine" from the bills the particular task[s] performed and the amount of time that each of Defendants' billers spent on tasks. Absent, however, are any facts that Defendants' "omission of this information was made to induce the plaintiff's reliance on the veracity of the invoices and the value of the legal services performed." (Sobel v Ansanelli, 98 AD3d 1020, 1024 [2d Dept 2012]). In addition, the fraud claim is deficient as it is duplicative of and seeks the same damages as the breach of contract cause of action (see Chowaiki & Co. Fine Art Ltd. v Lacher, supra; Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]). As such, the fraud claim fails as a matter of law to state a claim.
Concerning the viability of Plaintiff's cause of action alleging unjust enrichment, Defendants argue it fails to state a claim since a valid and enforceable contract, to wit the retainer, exists between the parties (see generally American Media, Inc. v Bainbridge & Knight Labs., LLC, 135 AD3d 477 [1st Dept 2016]; Allenby, LLC v Credit Suisse, AG, 134 AD3d 577 [1st Dept 2015]). An exception to this rule exists and a plaintiff may proceed past the pleading stage upon a theory of quantum meruit where it appears "there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue" (Joseph Sternberg, Inc. v. Walber 36th St. Assocs., 187 AD2d 225 [1st Dept 1993]; see also Commissioner of the Dept. of Social Servs. of the City of N.Y. v New York-Presbyterian Hosp., 164 AD3d 93 [1st Dept 2018]; Parkcash v Utilisave Corp., 295 AD2d 330 [2d Dept 2002]).
Here, the existence of the parties' retainer agreement, which was annexed to the complaint, is undisputed. As to its applicability, the retainer defines the parties' rights and responsibilities as to fees, disbursements, rates and billing practices. In opposition, the only arguments made by Plaintiff were that the Defendants admittedly breached and/or did not perform in accordance with the terms of the retainer. As such the unjust enrichment cause of action fails.
The Defendants' argument that all Plaintiff's claims are barred on the basis that Plaintiff ratified the bills or acknowledged the existence of an account stated in the complaint is without merit. Ratification is an affirmative defense and an account stated is a cause of action both of which must be pleaded and proved by the Defendants. Moreover, ratification requires that a person fail to act promptly to object to the bills in a reasonable time (see Allen v Riese Org., Inc., 106 AD3d 514 [1st Dept 2013]). As Plaintiff complained to the Defendants via letter approximately two months after termination of the attorney-client relationship and commenced this action approximately six weeks later, the Defendants have failed to justify dismissal, as a matter of law, on these theories. In any event, the allegations regarding the Defendants' un-objected to bills are insufficient to establish a defense as a matter of law to the Plaintiff's cause of action for breach of fiduciary duty which was not challenged in this motion (see Sobel v Ansanelli, supra at 1023).
Based on the foregoing, the motion is granted only to the extent that Plaintiff's second, fourth and fifth causes of action, alleging unjust enrichment, fraud and negligence are dismissed. 3/6/2019
DATE
/s/ _________
FRANCIS A. KAHN, III, J.S.C.