Opinion
No. 2022-22415
11-18-2022
Thane Rosenbaum, Plaintiff v. Roslyn Myers, Defendant
For Plaintiff Benjamin Alle Esq. Yankwitt LLP. For Defendant Jethro Eisenstein Esq. Profeta & Eisenstein.
For Plaintiff Benjamin Alle Esq. Yankwitt LLP.
For Defendant Jethro Eisenstein Esq. Profeta & Eisenstein.
LUCY BILLINGS, J.S.C.
I. BACKGROUND
The parties lived together from approximately 2007 to 2019. Before then, defendant was married to nonparty William Kaczmarek. Defendant and Kaczmarek litigated a divorce action between 2002 and 2006, when their divorce was finalized. According to the complaint in this action, during the divorce action, "Plaintiff provided advice to Defendant, appeared on Defendant's behalf in the divorce proceeding, assisted in negotiating the settlement, and helped obtain the favorable resolution of the proceeding." V. Compl., NYSCEF Doc. 1, ¶ 14. Plaintiff also helped defendant deal with the acquisition and development of residential property at 202 Lenox Avenue, New York County, an asset at issue in the divorce action. Id. ¶¶ 14-15. Defendant did not pay plaintiff for his legal services, but she later signed a document titled "Acknowledgment of Debt" dated February 7, 2005, which, on its face, acknowledges a debt defendant owed to plaintiff for legal advice and services he previously provided equal to 25% of the net profit from the potential future sale of the Lenox Avenue property. Aff. of Benjamin Allee Ex. 1, NYSCEF Doc. 85. The document describes the debt as owed for plaintiff's "extensive representation and advice in all legal proceedings and negotiations with various parties, the City of New York, and the financing and development of the property." Id. This advice and representation dated back to at least June 7, 2004, when plaintiff alleges that he advised defendant to consider obtaining the Lenox Avenue property in her divorce settlement and dealt with the City of New York and Astoria Bank to help her acquire the property, obtain a mortgage, and develop the property. The only legal proceedings were in the divorce action. In February 2016 defendant sold the property and did not pay plaintiff.
After the parties' romantic relationship ended in 2019, plaintiff sued on a single breach of contract claim to enforce the Acknowledgment of Debt. Defendant counterclaimed for plaintiff's legal malpractice in his representation of her during her divorce action and for intentional infliction of emotional distress, alleging domestic violence and physical and verbal abuse between January 13 and February 12, 2019.
Plaintiff now moves for summary judgment on his breach of contract claim and summary judgment dismissing defendant's counterclaims. C.P.L.R. § 3212(b). Defendant separately moves for summary judgment dismissing plaintiff's breach of contract claim. Id.
II. SUMMARY JUDGMENT
To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence, eliminating all material factual issues. Id.; Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d 173, 179 (2020); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014). If the moving party fails to make this evidentiary showing, the court must deny the motion. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Dorador v. Trump Palace Condo., 190 A.D.3d 479, 481 (1st Dep't 2021). Only if the moving party meets this initial burden, does the burden shift to the non-moving party to rebut that prima facie showing by producing admissible evidence sufficient to require a trial of material factual issues. Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d at 179; De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008). In evaluating the evidence for purposes of a summary judgment motion, the court construes the evidence in the light most favorable to the non-moving party. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d at 475; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503.
III. BREACH OF A CONTRACT
To establish breach of a contract, plaintiff must demonstrate a contract that plaintiff performed and that defendant breached and damages from defendant's breach. Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc., 195 A.D.3d 436, 436 (1st Dep't 2021). For a contract, plaintiff points to the Acknowledgment of Debt, which describes plaintiff's consideration as prior legal services. Allee Aff. Ex. 1. It is undisputed that plaintiff provided legal services to defendant and that defendant has not paid to plaintiff her consideration: 25% of the net profit from the sale of the property described in the Acknowledgment of Debt. Therefore plaintiff has made a prima facie showing of defendant's breach of that contract, shifting the burden to defendant to demonstrate the absence of at least one of the elements of the breach of contract claim.
Defendant challenges the validity and enforceability of the Acknowledgment of Debt. She raises several issues about the Acknowledgment of Debt, including that plaintiff dictated it to her and it was the product of duress, but most importantly that it is unenforceable because it lacks any consideration to be exchanged by plaintiff. The consideration contemplated is past performance, which is ordinarily not valid consideration for a contract. Lebedev v. Blavatnik, 193 A.D.3d 175, 183 (1st Dep't 2021); Korff v. Corbett, 155 A.D.3d 405, 408 (1st Dep't 2017). Plaintiff contends that the Acknowledgment of Debt qualifies as a contract under New York General Obligations Law § 5-1105, which provides that a contract is enforceable, even for past consideration, if in a signed writing, and the past consideration would be valid were it prospective consideration. Matter of Bullard, 206 A.D.3d 489, 490 (1st Dep't 2022); Lexington Owner LLC v. Kaplowitz, 149 A.D.3d 590, 591 (1st Dep't 2017). As set forth above, the Acknowledgment of Debt describes the consideration as "extensive representation and advice in all legal proceedings and negotiations with various parties, the City of New York, and the financing and development of the property." Allee Aff. Ex. 1. Plaintiff further describes this representation and advice for which the debt was owed as, at least in part, "assistance he rendered on her behalf in the divorce proceeding." V. Compl. ¶ 18.
If this consideration, legal representation and counsel in defendant's divorce action, were prospective consideration for a promised 25% of the net profits from the sale of the Lenox Avenue property, that consideration would be unenforceable. It is undisputed that plaintiff did not abide by the rules governing attorneys' representation of clients in matrimonial actions, which require a written retainer agreement. 22 N.Y.C.R.R. § 1400.3; Rosenbaum v. Myers, 191 A.D.3d 445, 446 (1st Dep't 2021).
An attorney's failure to abide by the rules in matrimonial actions bars the attorney's recovery of fees, invalidating the Acknowledgment of Debt. Law Off. of Sheldon Eisenberger v. Blisko, 106 A.D.3d 650, 652 (1st Dep't 2013); Edelman v. Poster, 72 A.D.3d 182, 184 (1st Dep't 2010); Julien v. Machson, 245 A.D.2d 122, 122 (1st Dep't 1997); Grecco v. Grecco, 161 A.D.3d 950, 951 (2d Dep't 2018) (collecting decisions). Plaintiff insists that 22 N.Y.C.R.R. Part 1400's client protective requirements do not apply to him, as 22 N.Y.C.R.R. § 1400.1 excepts attorneys who are not being paid by their client from those requirements. If plaintiff is not to be paid by his client, however, his legal services are not consideration for the purpose of validating the purported contract. On the other hand, were plaintiff's legal services prospective consideration in the contract, the exception in 22 N.Y.C.R.R. § 1400.1 would not apply, and the contract would be unenforceable. Adjmi v. Tawil, 180 A.D.3d 435, 436 (1st Dep't 2020); Law Off. of Sheldon Eisenberger v. Blisko, 106 A.D.3d at 651; Edelman v. Poster, 72 A.D.3d at 184. Plaintiff may not circumvent important measures for the protection of clients in matrimonial actions through the cunning use of a contract after the fact, having claimed his services were pro bono only when convenient.
Even aside from the requirement for plaintiff's consideration, to qualify for the exception in General Obligations Law § 5-1105, allowing past performance to constitute consideration for a contract, the consideration to be exchanged must not be "vague" or "imprecise," nor may extrinsic evidence be employed to understand the consideration. Korff v. Corbett, 155 A.D.3d at 408; Clark v. Bank of NY, 185 A.D.2d 138, 140 (1st Dep't 1992). The writing must state the consideration still owed as a sum certain to be paid on a date certain to be enforceable. Umscheid v. Simnacher, 106 A.D.2d 380, 381 (2d Dep't 1984); A & D Pool Serv., Inc. v. Hayden, 62 Misc.3d 128 (A) (App. Term 2d Dep't 2018); Nassau County v. New York State Urban Dev. Corp., 48 Misc.3d 248, 260-61 (Sup. Ct. Nassau Co. 2015), aff'd in part, rev'd in part on other grounds, 157 A.D.3d 805 (2d Dep't 2018); In re Maxwell Communication Corp., 198 B.R. 63, 69 (S.D.NY 1996). The Acknowledgment of Debt does not promise a sum certain on a date certain, but promises only a conditional interest in the potential profit from a sale of property that may or may not occur. The past consideration that the Acknowledgment of Debt describes as "extensive representation and advice in all legal proceedings and negotiations with various parties" is similarly vague and imprecise. Allee Aff. Ex. 1. See Korff v. Corbett, 155 A.D.3d at 408; Clark v. Bank of NY, 185 A.D.2d at 140; Umscheid v. Simnacher, 106 A.D.2d at 381; Nassau County v. New York State Urban Dev. Corp., 48 Misc.3d at 258, aff'd in part, rev'd in part on other grounds, 157 A.D.3d 805. Therefore the Acknowledgment of Debt is an unenforceable contract under General Obligations Law § 5-1105, requiring summary judgment in defendant's favor on plaintiff's breach of contract claim.
IV. DEFENDANT'S COUNTERCLAIMS
Plaintiff also moves for summary judgment dismissing defendant's counterclaims for legal malpractice and intentional infliction of emotional distress. Plaintiff maintains that defendant's failure to allege any injury or to complain about malpractice before this litigation began, as well as the expiration of the statute of limitations, is fatal to that counterclaim. C.P.L.R. § 203(d) allows defendant to raise an expired counterclaim, however, when it arises from the same series of transactions or occurrences as plaintiff's claim. As discussed above, the complaint alleges that at least part of the debt to which the Acknowledgment of Debt refers was for legal services in defendant's divorce action, to which defendant counterclaims that his legal services in the divorce action negligently damaged her.
Because defendant's counterclaim for legal malpractice is dependent on plaintiff's claim to recover for his legal services, her counterclaim is only a set-off against plaintiff's recovery. California Capital Equity, LLC v. IJKG, LLC, 151 A.D.3d 650, 651 (1st Dep't 2017). Once the court has granted defendant's motion for summary judgment dismissing plaintiff's claim, defendant concedes that her counterclaim for legal malpractice is moot. Therefore the court grants plaintiff's motion for summary judgment dismissing defendant's counterclaim for legal malpractice.
Regarding defendant's counterclaim for intentional infliction of emotional distress, defendant must support this counterclaim with medical or psychological evidence, which she has not produced. Seymour v. Hovnanian, 207 A.D.3d 420, 427 (1st Dep't 2022); Walentas v. Johnes, 257 A.D.2d 352, 353 (1st Dep't 1999). Because her testimony is insufficient to sustain her claim for intentional infliction of emotional distress, the court also grants summary judgment to plaintiff dismissing this counterclaim.
V. CONCLUSION
For the reasons explained above, the court denies plaintiff's motion for summary judgment on his breach of contract claim, but grants his motion for summary judgment dismissing defendant's counterclaims for legal malpractice and for intentional infliction of emotional distress. C.P.L.R. § 3212(b) and (e). The court also grants defendant's motion for summary judgment dismissing plaintiff's breach of contract claim. C.P.L.R. § 3212(b). Thus the court dismisses this entire action.