A Catalogue of Legal Malpractice Defenses, All Dismissed

Attorney is hired to represent funeral home for a disinterment.  In the retainer agreement, it is specifically set forth that the attorney will also be representing the person requesting the disinterment.  A $10,000 retainer is given, and the work begun.  It ends successfully.  When the bill is sent, the funeral home refuses to pay.  We presume that there was some problem between the person and the funeral home.  In any event attorney does not get paid.  McKeon v SCI New Jersey Funeral Serv., Inc2013 NY Slip Op 30218(U)  January 29, 2013  Sup Ct, New York County
Docket Number: 112504/11  Judge: Donna M. Mills turns into an account stated case with defendant interposing 17 defenses.  We reproduce Judge Mills' decision, which works through the affirmative defenses.

"Turning to the other relief sought, the court shall considered the merit of the seventeen affirmative defenses which are as follows: ( I ) failure to state a cause of action; (2) unclean hands; (3) waiver; (4) statute of limitations and/or laches; (5) estoppel; (6) breach of contract; (7) violation of the notice provisions; (8) violation of the statute of frauds; (9) churning; (10) unconscionability; (11) violation of the Code of Professional Responsibility; (12) legal malpractice; (13) failure to name a necessary party; (14) third-party liability; (15) failure to mitigate; (1 6) attorneys’s lees unrecoverable; and (1 7) reservation of right to assert additional defenses.


Plaintiff seeks dismissal on the grounds that failure to state a cause of action, lack of
specificity, and/or documentary evidence. In response, defendant argues that the motion to
dismiss is premature, where no discovery has yet been conducted. Specifically, defendant asserts
that the first affirmative defense is not subject to dismissal. Plaintiff acknowledges that said
defense is defined as meaningless surplusage by the Appellate Division, First Department. See
Riland v Todman & Co., 56 AD2d 350, 352 ( 1st Dept, I977), but states that it can be dismissed if
all of the other defenses arc subject to dismissal;See. See Raine v. Allied Artists Prods. v Artists Prods., Inc., 63 AD2d 914 (1st Dept, 1978)

The court shall examine the other defenses.The second affirmative defense seeks relief under the unclean hands doctrine. The partyalleging unclean hands must establish that the party charged committed immoral or unconscionable conduct directly related to the subject matter. See Citibank, N.A. v American Banana Co, Inc.., 50 AD3d 593, 594 (1st Dept 2008). This defense is connected to plaintiff‘sequitable claims in the complaint. The court finds that defendant has not made out a defense that plaintiff’s conduct is so immoral and depraved as to warrant a defense of unclean hands. The second affirmative defense is dismissed.


The third affirmative defense, waiver, alleges that plaintiff had intentionally waived a legal right she had. Defendant does not specify in the answer what legal right had been relinquished by her. The court shall dismiss this defense as lacking in specificity, thus, failing to state a proper defense‘ensue.


The fourth affirmative defense, statute of limitations and laches, alleges that this complaint is untimely. ‘J’he statute of limitations for breach of contract claims is six years from the breach. CPLR 2 13 (2). The retainer agreement was executed on September 30,2009, and this action was commenced in 2011, so there is no statute violation. Defendant’s laches defense is deficient where it fails to alleges some evidence of prejudice in addition to delay. See Steele v Motor Vehicle Acc. Indemnification. Gorp., 39 AD3cl 78, 82 (1st Dept 2007). The fourth affirmative defense is dismissed.


The fifth affirmative defense is estoppel. The doctrine of estoppel would preclude plaintiff from asserting a legal right alter leading defendant to reasonably believe that she did not intend to assert-t this right. ’I’his defense is insufficient‘.. There is no indication that plaintiff  misled defendant into relying on some inconsistent conduct on her part, resulting in prejudice. See BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 (1st Dept 1985). The allegation that defendant was somehow misled into believing that it would not pay any amount beyond the initial $10,000 is belied by the explicit terms of the retainer agreement. The fifth affirmative defense is dismissed.


The sixth affirmative defense alleges that plaintiff breached the retainer agreement by failing to provide regular communications, and by billing excessive charges. The seventh affirmative defense alleges that plaintiff failed to provide regular notice to defendant while providing legal services. Since the account stated claim has been granted, the allegation of excessive fees is moot as defendant’s demonstrated failure to express timely objection to the fees constitutes acquiescence to the reasonableness of‘the fees. ‘The failure to provide notice is also moot. These defenses are dismissed.


The eighth affirmative defense, violation of the statute of frauds, is not relevant, since the suit involves a written agreement. The eighth affirm alive defense is dismissed. ‘The ninth affirmative defense apparently alleges that plaintiff should be barred from recovering fees because she worked beyond the terms provided by the retainer agreement and overcharged defendant for work outside of that stipulated by said agreement. This defense lacks specificity as to what constituted work beyond the terms of the retainer agreement. The ninth affirmative defense is dismissed.


The tenth affirm alive defense alleges that the retainer agreement is unconscionable and unduly burdensome to defendant. This defense is not specific, and no evidence is submitted to show that this agreement is unconscionable. Moreover, plaintiff has provided evidence that prior to the execution of this agreement, the parties had extensive communications as to specific
provisions related to the payment of fees. Defendant has not provided any proof that he objected
or criticized the provisions prior to execution, or at any other time. The tenth affirmative defense
is dismissed.


The eleventh affirmative defense alleges that plaintiff’s conduct violated the Code of Professional Responsibility. Here, there is no reference to any specific code provision. Also, the claim that plaintiff charged excessive fees unreasonable fees beyond the initial retainer fee is belied by the documentary evidence submitted by plaintiff. ’The eleventh affirmative defense is dismissed.


The twelfth affirmative defense is similar to the ninth one, alleging plaintiffs conduct as
going beyond the scope of her employment, Although it is based on tort, rather than contract. The
court shall dismiss this defense as lacking in specificity.


The thirteenth affirmative defense alleges that the failure to name a necessary party to this action precludes plaintiffs claims. This party is supposedly Philip, the deceased’s son. The court does not find him to be a necessary party, as this retainer agreement was only executed by plaintiff and defendant€defendant, Philip Philip was not intended to be a third-party beneficiary. This affirmative defense is dismissed.


The fourteenth affirmative defense alleges that plaintiffs claims are barred because a third-party is liable for money owed. Defendant has not specified the third-party. Plaintiff has provided documentary evidence, a copy or defendant's’s agreement with Philip, which  provides
that defendant agreed to be responsible for the payment of legal fees concerning the disinterment
and other matters. The fourteenth affirmative defense is dismissed.

The fifteenth affirmative defense alleges h a t plaintiff failed to mitigate her damages. There is no specificity to this defense and it is dismissed.

The sixteenth affirmative defense alleges that plaintiff is not entitled to attorney’s fees. ‘This defense is lacking in specificity. Defendant's’ s previous explanations as to why plaintiff is not entitled to any fees (breach of contract, malpractice) have been rejected by this court. Thus, this defense is dismissed.

The seventeenth affirmative defense alleges defendant’s entitlement to allege additional
affirmative defenses during the course of this action. This is not a proper affirmative defense and
is dismissed.


The court will dismiss all but the first affirmative defense, as it may relate to the remaining causes of action. The other defenses are either deficient in merit or are disproved by documentary evidence.

Post A Comment / Question






Remember personal info?