Attorney takes over for departing defense counsel in a trip-and-fall case.  Attorney moves for dismissal, fails.  Attorney takes the case to trial, succeeds with a defense verdict.  Attorny want to get paid, isn’t.  Attorney sues client  Flanagan Law, PLLC v Perno  2020 NY Slip Op 51488(U) [70 Misc 3d 1201(A)] Decided on December 18, 2020 Supreme Court, New York County Lebovits, J. discects both sides’ errors.

I. Plaintiff’s Motion for Summary Judgment


A. Plaintiff’s Claim for an Account Stated


Plaintiff moves for summary judgment on its cause of action for an account stated. The motion is denied.

An account-stated claim arises from an implicit agreement between the parties on the amount that one party owes the other on past transactions between them. (See Rodkinson v Haecker, 248 NY 480, 485 [1928].) A party seeking judgment as a matter of law on an account-stated claim must show that the invoices were properly addressed and mailed to a client, using a regular office mailing procedure. (See Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 161-162 [1st Dept 2005].) In addition, plaintiff must establish “with admissible evidence, the receipt and retention of bills without objection within a reasonable time.” (LD Exch., Inc. v Orion Telecom. Corp., 302 AD2d 565, 565 [2d Dept 2003].)

Plaintiff has not met that burden here. It relies on one conclusory statement in an affidavit from its principal, Richard J. Flanagan, that invoices were mailed to the address provided by defendants based on plaintiff’s normal office procedure.[FN1] But plaintiff provides no information about that putative office procedure. And there is no documentary evidence indicating that the invoices were mailed, mailed to the correct address, paid in part, or received and retained without objection. Indeed, the invoices attached to plaintiff’s motion papers do not [*3]even list defendants’ address(es) at all.[FN2]

B. Plaintiff’s Claim for Breach of Contract


Plaintiff also moves for summary judgment on its contract claim. This court concludes that the motion should be denied because plaintiff has not established prima face its entitlement to judgment as a matter of law.

To prevail on a breach of contract claim, a party must establish the existence of a contract, the plaintiff’s performance, the defendant’s breach of that contract, and resulting damages. (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].) In the case of an attorney-client relationship, 22 NYCRR § 1215.1 requires attorneys to provide all clients with a written letter of engagement or to execute a written retainer agreement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute. (Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60 [2d Dept 2007].)

Here, plaintiff has not submitted an attorney-client retainer agreement or letter of engagement to establish that it satisfied the requirements of § 1215.1. Defendant Thomas Perno also represents in an affidavit that no such letter or agreement was provided or executed. Although plaintiff disputes Perno’s representation in his affidavit, it does not offer any documentary evidence supporting its assertion that a retainer agreement existed from the outset.[FN3] Thus, with respect to the breach-of-contract claim plaintiff has thus failed to offer sufficient evidence to meet its initial prima facie burden at summary judgment.

C. Plaintiff’s Claim in Quantum Meruit


Alternatively, plaintiff claims that it is entitled to the reasonable value of its legal services in quantum meruit. This court again concludes that plaintiff’s motion for summary judgment should be denied.

It is true that an attorney’s failure to comply with the rules on retainer agreements or engagement letters established in 22 NYCRR § 1215.1 would not preclude it from later recovering legal fees in quantum meruit. (See Miller v Nadler, 60 AD3d 499, 500 [1st Dept 2009].) But plaintiff has not established the absence of any material dispute of fact. To recover in quantum meruit, a plaintiff must establish “(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.” (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [1st Dept 2009].) Defendants in this case have submitted affidavits and documents to dispute that plaintiff performed services in good faith—suggesting both that plaintiff padded its legal bills by performing unnecessary services and submitted a bare-bones summary-judgment motion that was plainly inadequate on its face. This court concludes that defendants have thereby established a material dispute of fact that precludes the grant of summary judgment on plaintiff’s quantum-meruit claim.

II. Defendants’ Cross-Motion for Summary Judgment


Defendants cross-move for summary judgment on their malpractice counterclaim. The motion is denied.

A party must establish three elements to recover on a legal-malpractice claim: negligence of the attorney accused of malpractice, proximate causation between the attorney’s negligence and the loss sustained by the client, and proof of actual damages. (See Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998].) The first element requires a malpractice claimant to adduce evidence that establishes, through more than allegations of deficiencies in plaintiff’s conduct as an attorney, that plaintiff failed to meet the standard of professional care and skill. (See Thaler & Thaler v Gupta, 208 AD2d 1130, 1132 [3d Dept 1994].) To show proximate cause in a legal malpractice claim, the claimant must establish that “but for” the attorney’s negligence, the claimant would have prevailed or would not have sustained any damages. (See Levine, 256 AD2d at 149.) Therefore, “to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the Underlying Action ‘but for’ the attorney’s negligence.” (Leder v Spiegel, 9 NY3d 836, 837 [2007] [internal citations omitted].)

Defendants here emphasize that in their view plaintiff’s summary-judgment motion in the underlying action was so thin and unsupported as to fall below basic standards of professional care. And they assert that as a result of the (putative) deficiencies of this affidavit, defendants fared worse at summary judgment than other defendants with weaker positions in the underlying action. This court is skeptical, though, that defendants’ legal position in the underlying action (or that of the other defendants in the action), and thus the requisites of a proper summary-judgment motion in that action, are “part of an ordinary person’s daily experience.” (Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010] [reversing grant of summary judgment on malpractice claim].) Defendants were therefore required to come forward on this motion with an expert affidavit to [*4]establish each element of their malpractice claim. They have not done so.

Additionally, defendants have not shown—as opposed to merely asserting—that their legal position in the underlying action was comparable or even stronger than that of other defendants who prevailed at summary judgment. And although defendants maintain that their position was so strong that the judge in the underlying action dismissed the claims against them sua sponte at trial, they have not supported that claim with documentary evidence.

This court concludes that in these circumstances, defendants have not established the absence of any factual dispute and that they are entitled to judgment as a matter of law on their malpractice counterclaim.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment under CPLR 3212 is denied; and it is further

ORDERED that defendants’ cross-motion for summary judgment under CPLR 3212 on their malpractice counterclaim is denied.

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.