Carter Ledyard & Milburn LLP v. Bical

Full title: CARTER LEDYARD & MILBURN LLP, Plaintiff, v. LILAAHAR BICAL, Defendant…

Court: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 37EFM

Date published: Mar 20, 2019

2019 N.Y. Slip Op. 30739 (N.Y. Sup. Ct. 2019)

Opinion

INDEX NO. 150470/2018 INDEX NO. 451850/2018

03-20-2019

CARTER LEDYARD & MILBURN LLP, Plaintiff, v. LILAAHAR BICAL, Defendant. LILAHAR ("SAMMY") BICAL, Plaintiff, v. G. MICHAEL BELLINGER, MELISSA ERWIN, DYLAN RUFFI, CARTER LEDYARD & MILBURN LLP, Defendants.

HON. ARTHUR F. ENGORON Justice

NYSCEF DOC. NO. 54 PRESENT: HON. ARTHUR F. ENGORON Justice MOTION DATE 12/20/2018 MOTION SEQ. NO. 002

DECISION AND ORDER

The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53 were read on this motion for SUMMARY JUDGMENT (AFTER JOINDER). Upon the foregoing documents, it is ordered that plaintiff's motion for summary judgment is granted.

Background

This consolidated action arises from the criminal trial and legal defense of Lilahar Bical ("Bical"). Bical was a franchised dealer for General Motors Corporation operating under the name of "Kristal Auto Mall." Bical and a co-defendant, Darmin Bachu ("Bachu"), were indicted by the United States District Court for the Eastern District of New York (hereafter "U.S. Attorney's Office") and charged with mail and wire fraud arising out of Bical's purchase of land in Brooklyn to build a new dealership complex. In November of 2016, Bical engaged Carter Ledyard & Milburn LLP ("CLM") to replace his then-current counsel. CLM alleges, and Bical concedes, that the FBI possessed wiretap recordings that were used by the FBI in its prosecution and plea deal negotiations with Bical. In October 2017, Bical entered a guilty plea pursuant to a negotiated plea agreement with the U.S. Attorney's Office. Bical had been charged as the alleged perpetrator of the scheme. Bachu had been charged with aiding and abetting the scheme. Bachu elected to take his case to trial, where he was acquitted. Bical then, unsuccessfully, sought to withdraw his guilty plea, citing ineffective assistance of counsel. On January 17, 2018, CLM brought an action against Bical for breach of contract to recover legal fees ("Action #1). On February 26, 2018, CLM amended its complaint in Action #1 to assert additional claims for account stated and quantum meruit, seeking damages totaling $258,394.67. On February 15, 2018, Bical filed a separate action against CLM in Kings County ("Action #2). Bical alleged causes of action for legal malpractice, excessive and unethical billing practices, fraud in the inducement, lack of consideration and unclean hands in violation of New York General Business Law Section 349 ("GBL § 349"). In April of 2018, CLM moved to consolidate the Brooklyn action with the instant one, which this Court granted on April 22, 2019. CLM now moves, pursuant to CPLR 3212, for summary judgment, asking this Court to grant judgment in its favor for the alleged legal fees due of $258,394.67, and dismissing Bical's claims against it in their entirety.

Discussion

"The proponent of 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). Only if the movant satisfies that burden must the opponent tender evidence in admissible form "sufficient to require a trial of material questions of fact on which [s]he rests [his or her] claim ... mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v City of New York, 49 NY2d 447, 562 (1980). Summary judgment is a drastic remedy, and a Court must deny it if the issue is "arguable" or "debatable."

CLM's claim for Account Stated

CLM is entitled to judgment in the amount of $258,394.67 in legal fees on a theory of account stated. "[W]here an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown." Shaw v Silver, 95 AD3d 416, 416 (1^st Dep't 2012). CLM has met its prima facie burden by providing evidence that it sent to Bical regular, detailed invoices for the legal services for which CLM now seeks to recover. The partial payments by Bical in the amount of over $450,000.00 over the life of CLM's representation of Bical further evidences CLM's entitlement to payment. Id. Bical's conclusory and untimely letter by his new attorney, dated December 13, 2007, that states "Mr. Bical disputes each and every invoice you have sent his way" is insufficient to raise a triable issue as to whether CLM's statements of account were in fact disputed. A&W Egg Co. v Tufo's Wholesale Dairy, Inc., 169 AD3d 616 (1^st Dep't 2019). For an objection to rebut sufficiently a prima facia entitlement to an account stated, it must raise a complaint to a specific amount or invoice. It is not enough, at the 11^th hour, and after having partially paid invoices for over a year, to state retroactively that you object to every invoice that was ever sent. Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 (1^st Dep't 2011).

CLM's claims for Breach of Contract and Quantum Meruit

As this Court has determined CLM is entitled to summary judgment on its claim for an account stated, it need not reach a determination on CLM's claims for alternative relief.

Bical's Claims

As noted above, Bical has asserted the following claims against CLM: legal malpractice (1^st cause of action); excessive and unethical billing practices (2^nd cause of action); fraud in the inducement (3^rd cause of action); lack of consideration and unclean hands (4^th cause of action); and legal malpractice by breach of fiduciary duty (5^th cause of action). Bical's claim for legal malpractice is barred by his undisturbed guilty plea. Yong Wong Park v Wolff & Samson, P.C. 56 AD3d 351, 352 (1^st Dep't 2008). Accordingly, his 1^st cause of action is dismissed. Although not determinative as to this issue, it is also notable that Bical does not assert that he was innocent of the underlying crime, merely that it was a "victimless crime" and that his representation was manifestly negligent because his co-defendant was acquitted. Bical Affidavit, ¶¶ 8-9. Further, as Bical's claims for fraud in the inducement and breach of fiduciary duty are premised on the same facts as his claim for legal malpractice, his 3^rd and 5^th causes of action must also be dismissed. Id. at 352 (holding that plaintiff's claim for breach of fiduciary duty must be dismissed when it is duplicative of the claims asserted in the legal malpractice claim); Chowaiki & Co. Fine Art v Lacher, 115 AD3d 600, 600 (1^st Dep't 2014) (finding that plaintiff's claim for fiduciary duty must be dismissed when the claims are premised upon the same facts, and seek identical damages, return of the alleged excessive fees claimed). Bical's 2^nd cause of action asserts that CLM billed excessively by "double billing" and by "block billing," a practice in which lawyers aggregate multiple smaller tasks into a single "block" entry for which a single time value is assigned. Bical makes all of these allegations solely upon "information and belief."

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleadings states a cause of action, not whether the proponent of the pleadings has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory... If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one.

Thaw v N. Shore Univ Hosp., 129 AD3d 937, 938 (1^st Dep't 2015). CLM has moved to dismiss Bical's 2^nd cause of action, relying on its retainer agreements and the invoices that Bical received, and partially paid, without specific objections, as discussed supra. Thus, the burden shifts to Bical to demonstrate why he has a cause of action. Bical's opposition to the instant motion fails to establish adequately this claim. Bical's opposition addresses this issue solely by directing the Court to the conclusory allegations from his complaint. It does not endeavor to demonstrate with any particularity why, despite the signed retainer agreement and received invoices, CLM's billing was unethical or excessive, and Bical fails to identify any alleged double billing in the invoices provided. Moreover, "block billing" does not render an invoiced amount per se unreasonable. J. Remora Maintenance LLC v Efromovich, 103 AD3d 501, 503 (1^st Dept' 2013). As Bical's opposition has failed to rebut sufficiently CLM's entitlement to summary judgment, Bical's 2^nd cause of action is dismissed. Bical's 4^th cause of action asserts, in a conclusory fashion, that "[d]uring the entirety of Defendants [sic] representation of Plaintiff, Defendants violated General Business Law Section 349 in their complete lack of consideration and/or unclean hands." Bical Complaint, ¶ 51. GBL § 349 empowers the Attorney General to bring an action to enjoin "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." In 1980, the Legislature added § 349(h), giving private citizens a right of action for deceptive trade practices. A § 349(h) plaintiff must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 25 (1995). Private transactions not of a recurring nature or without ramifications for the public at large do not fall within the ambit of the statute. See Genesco Entm't v Koch, 593 F Supp 743 (SDNY 1984). As Bical's allegations do not fall within the ambit of protection afforded under GBL § 349, Bical's 4^th cause of action must also be dismissed.

Conclusion

For the reasons set forth herein, CLM's motion for summary judgment is granted in its entirety, and the clerk is hereby ordered to enter judgment against Bical and in favor of CLM in the amount of $258,394.67. 3/20/2019

DATE

/s/ _________

ARTHUR F. ENGORON, J.S.C.