An-Jung v Rower LLC  2019 NY Slip Op 30600(U)  March 6, 2019  Supreme Court, New York County  Docket Number: 152694/2018  Judge: Francis A. Kahn III is a thoughtful discussion of the difference between legal malpractice and an overbiling case.  Here, in a matrimonial setting, plaintiff’s case is that the bills lack any discernible detail and are excessive.  Is this legal malpractice, fraud or unjust enrichment?  No.  Read on for the Court’s explanation.

“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.”

“A fair overall reading of the complaint reveals that Plaintiffs grievance against Defendant is overbilling, not professional negligence. Although Plaintiffs negligence cause of action alleges a breach of the standard of care, it does not tum “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, Plaintiffs 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 [!51 Dept 2014]). ”

“As to the sufficiency of the Plaintiffs 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 [151 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 (I) 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 plaintiffs 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 [2 Dept 2012]; 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 [I st Dept 1993]; see
also Ben-Zvi v Kronish Lieb Weiner & Hellman LLP, 278 AD2d 167 [1st Dept 2000])”

“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. “