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Meister Seelig & Fein, LLP v. Hornick, 2013 N.Y. Slip Op. 31325 | Casetext Search + Citator



Movement sequence #003



On this motion for authorized charges, plaintiff/counterclaim defendant Meister Seelig and Fein, LLP ( “ Meister ” ) and third-party defendants Bluming Freiman & Franco, P.C., Freiman Franco, P.C., Sidney Bluming ( “ Bluming ” ) and Jeffrey Kimmel ( “ Kimmel ” ) ( collectively, the “ Bluming defendants ” ) ( collectively, with Meister, the “ Attorneys ” ), transfer pursuant to CPLR 3211 ( a ) ( 7 ) and 3016 ( bacillus ), for an order dismissing counterclaims asserted by the defendants/counterclaim plaintiffs Louis Hornick and Louis Hornick & Co., Inc. ( “ Hornick & Co. ” ) ( collectively, the “ Hornicks ” ), and the third-party grievance by defendant/third-party plaintiff Hornick & Co. The Attorneys sought dismissal of the primary counterclaim towards Meister and the primary third-party declare towards the Bluming defendants for breach of contract as facially inadequate and time-barred. nevertheless, through the pendency of the clamant movement, pursuant to the events ‘ stipulation dated March 26, 2013, the Hornicks withdrew such claims. consequently, the Hornicks ‘ starting counterclaim and the third-parry rupture of slender name towards the Bluming defendants are dismissed as think about.
in addition to, though the movants ‘ cited to CPLR 3211 ( a ) ( 1 ) ( dismissal primarily based on a protection based upon documentary attest ) of their affirmation in assist and reply papers, no such arguments are made in assist thereof. Neither is this incision addressed by the non-movants the Hornicks. Subsequently, the Court docket doesn’t tackle dismissal pursuant to this part. Background Information It’s alleged that in 2008, the Hornicks retained the Bluming defendants for illustration in potential exterior arbitration. On the recommendation of the Bluming defendants, the Hornicks in addition to retained Meister, and someday thereafter, an area british rede. The Bluming defendants remained the main advocate within the case. Meister and the Bluming defendants carried out their providers and recurrently transport invoices to the Hornicks. The Hornicks did not pay any of the payments and as of February 2009, owed $ 71,332.48 to the Bluming defendants and $ 128,931.45 to Meister, none of which has been paid. On or about August 21, 2012, the Bluming defendants assigned all claims towards the Hornicks to Meister. Thereafter, Meister commenced this courtship towards the Hornicks for hole of contract, rating acknowledged and quantum meruit, searching for to get well the sum whole of $ 200,263.93.

In lieu of Answering Meister ‘s cost, the Hornicks unsuccessfully moved to dismiss and thereafter, filed the Reply, asserting two counterclaims for hole of contract and imposter towards Meister, and in addition to filed a third-party cost towards the Bluming defendants for the lapp reduction, alleging that each Meister and the Bluming defendants misrepresented their expertness within the exterior arbitration issues and overbilled them for providers, which had been offered incompetently ( Counterclaims ¶¶29-33 ; Third-Celebration Criticism ¶¶33-37 ). The Attorneys these days transfer to dismiss the counterclaims and the third-party ailment. See this court docket ‘s Order dated December 11, 2012. The Hornicks subsequently moved to reargue, however the court docket, upon granting the obvious movement, adhered to its anterior resolution ( see Order dated March 1, 2013 ). In maintain of dismissal, Meister and the Bluming defendants argue that the remaining fraud claims towards them ought to be dismissed for failure to state a lawsuit of motion. The Hornicks in addition to did not plead fraud with particularity, as required by CPLR 3016 ( b-complex vitamin ), for the reason that pleadings don’t point out the id of the person to whom the representations had been allegedly made, the capability of what particularly was mentioned, or when and by whom it was mentioned. And, the Hornicks cannot allege that because of such “ falsification, ” they suffered any damages since [ to date ] they didn’t pay any authorized charges. In any consequence, the fraud claims are duplicative of the breach of contract claims. far, it seems that the Hornicks are mainly asserting a authorized malpractice declare. And, the Hornicks cannot keep away from the three-year Statute of Limitations relevant to such time-barred authorized malpractice declare by disguising such title as one for breach of compress. In any occasion, the Hornicks fail to state of matter a reason behind pure course of for authorized malpractice, for the reason that declare herein includes a cost dispute for the alleged overload and the Hornicks fail to allege the kind of “ however for ” inflicting required or any ascertainable damages allegedly brought on by the Attorneys ‘ wrongful acts. The movants argue that the authorized malpractice declare is time-barred as a result of it was commenced greater than three years after the allege accumulation, arguably in February 2009, when the Hornicks terminated Meister and the Blooming defendants. subsequently, any declare for malpractice should have been introduced three years thereafter, by February 2012. nevertheless, the Hornicks ‘ counterclaims weren’t filed till August 22, 2012, and the third-party cost weren’t filed till January 2013. In resistance, the Hornicks deny asserting a authorized malpractice declare and acknowledge that the Statute of Limitations on such declare has expired. The Hornicks in addition to aver that had the authorized malpractice declare not expired, they’d search over $ 8 million in damages. The Hornicks contend that they correctly pleaded the fraud claims by alleging that the Attorneys misrepresented their {qualifications} and talents so as to be retained ; and such misrepresentations occurred prior to the being of any attorney-client relationship. In or about late 2007, Bluming represented that his agency had efficiently dealt with respective UNCITRAL arbitrations and was companion with the need procedures and the English regulation ; that he was an “ adept ” and had “ across-the-board expertise in worldwide arbitration ” ; that Meister ‘s attorneys had been main specialists in exterior arbitrations, had the enable licenses and admissions, and will competently signify the Hornicks within the arbitration ( Counterclaims ¶¶7-11, Third-Celebration Criticism 1-15 ). The Hornicks detrimentally relied on such statements and had been broken by being charged inflate charges, which “ can be importantly much less if the subject had been dealt with by competent rede ” with related have, who didn’t require “ time to study UNCITRAL and the english regulation ” ( Counterclaims ¶¶25 ; 29 ; 37-38 ; Third-Celebration Criticism ¶¶29 ; 33 ; 41-42 ). moreover, the damages the Hornicks search of their fraud claims, i.e., the rest between the problem of hours billed by an skilled lawyer and the time billed by the Attorneys so as to “ stand up to hurry ” and change into companion with the related areas of police, are completely different from these which might be obtainable in a authorized malpractice motion. And, the alleged false statements had been made in regards to the by, and never the longer term authorized illustration, and are sufficiently explicit to fulfill CPLR 3016. In any occasion, whether or not the Attorneys had the UNCITRAL and English regulation expertness is a precise exit and cannot be decided on a movement to dismiss. Thus, discovery ought to be performed to find out whether or not the Attorneys ‘ representations rise to the tied of fraud or whether or not they’re mere puffery. In reply, the movants argue that the Hornicks ‘ claims for fraud/fraudulent incentive should fail as a result of the alleged false guarantees relate to efficiency of the signal [ the retainer agreement ], and the claims, are consequently duplicative of the hole of compress claims primarily based on the alleged overbilling. And, despite the fact that the Hornicks withdrew their claims for hole of signal, such declare even stays because the one-fifth affirmative refutation of their Reply. In any occasion, courts think about such allegations of overstate have by a lawyer mere puffery, not actionable as fraud. Dialogue On a movement to dismiss pursuant to CPLR 3211 ( a ) ( 7 ), the information pleaded are presumed to be true and are accorded each favorable inference ( see Nonnon v Metropolis of New York, 9 NY3d 825 [ 2007 ] ; Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972 [ 1994 ] ). nevertheless, allegations which fail to state a viable causal agent of motion, that dwell of naked authorized conclusions, vitamin a effectively as precise claims inherently unimaginable or flatly contradicted by goal proof will not be entitled to such retainer ( Leder v Spiegel, 31 AD3d 266, 819 NYS2d 26 [ 1st Dept 2006 ] ; Biondi v Beekman Hill Home Apt. Corp., 257 AD2d 76, 81, 692 NYS2d 304 [ 1st Dept 1999 ], aff’d 94 NY2d 659, 709 NYS2d 861 [ 2000 ] ). The court docket ‘s inquiry is proscribed to figuring out whether or not the [ claim ] states any causal agent of motion, not whether or not there’s evidential documentation for it ( Rovello v Orofino Realty Co., 40 NY2d 633, 635-636, 389 NYS2d 314 [ 1976 ] ). Fraud “ The weather of a reason behind motion for fraud require a cloth falsification of a reality, cognition of its falsehood, an intent to induce reliance, justifiable reliance by the plaintiff and damages ” ( see Eurycleia Companions LP v Seward & Kissel, LLP, 12 NY3d 553, 559, 883 NYS2d 147, 150 [ 2009 ], citing Ross v Louise Smart Servs. Inc., 8 NY3d 478, 488, 836 NYS2d 509 [ 2007 ] ; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421, 646 NYS2d 76 [ 1996 ] ).

In accession, pursuant to CPLR 3016 ( b ), a title rooted in imposter should be pleaded with the wanted particularity underneath CPLR 3016 ( b ), adequate to allow a “ honest inference ” of the alleged misbehave ( Eurycleia v Seward & Kissel, 12 NY3d 553, 883 NYS2d 147 ). The woo finds that the Hornicks ‘ imposter claims should be dismissed. A induce of motion for fraud could also be maintained the place a claimant pleads a breach of obligation disjoined from, or along with, a breach of signal, i.e., if a claimant alleges that it was induced to enter right into a transaction as a result of a defendant misrepresented materials information ( J.A.O. Acquisition Corp. v Stavitsky, 192 Misc second 7, 745 NYS2d 634 [ Sup Ct, New York County 2001 ], citing, First Financial institution of the Americas v Motor Automotive Funding, Inc., 257 AD2d 287, 690 NYS2d 17 [ 1st Dept 1999 ] ). Though the Hornicks plead that it was induced to enter into the lawyer illustration settlement primarily based on representations the Attorneys made about their expertness, such fraud claims cannot be maintained as they’re legally inadequate as a rely of jurisprudence. It has been held that “ [ u ] nlike a falsification of future function to carry out, a misrepresentation of current [ or past ] information is collateral to the contract … and subsequently includes a separate hole of obligation ” ( First Financial institution of the Americas v Motor Automotive Funding, Inc., 257 AD2d 287, supra, at 292 ). Courts have held that misrepresentations of 1 ‘s expertness are opinions or puffery not actionable as a rely of jurisprudence ( see Jacobs v Lewis, 261 AD2d 127, 127-128, 689 NYS2d 468 [ 1st Dept 1999 ] [ finding complaint failed to state cause of action for imposter where defendant ‘s alleged misrepresentations of its expertness were opinions and puffery ] ; Bellinson Legislation, LLC v Iannucci, 951 NYS2d 84 [ Sup Ct, New York County 2012 ], aff’d 102 AD2d3d 563, 958 NYS2d 383 [ 1st Dept 2013 ], citing Schonfeld v Thompson, 243 AD2d 343, 663 NYS2d 166 [ 1st Dept 1997 ] [ lawyer ‘s alleged misrepresentations as to how many trials he had taken to completion in the Federal courts held puffery not actionable as fraud ] ). right here, the Attorneys ‘ alleged statements that they might competently signify the Hornicks within the worldwide arbitration “ whole to not more than opinions or finally unfulfilled guarantees ” ( Jacobs v Lewis, atl27-128 ). Likewise, Bluming ‘s alleged representations that his agency “ efficiently dealt with ” a number of UNCITRAL arbitrations, and that Meister, together with Jeffrey Kimmel, had been “ lead specialists ” and had “ important expertise ” in exterior arbitration, quantity to little greater than “ mere puffery ” that doesn’t represent actionable fraud ( id.; Bellinson Legislation, LLC v Iannucci, supra; Schonfeld v Thompson, supra; see Laddcap Worth Companions, LP v Lowenstein Sandler PC, 2009 WL 727781 [ Trial Order ] [ Sup Ct, New York 2009 ] [ node ‘s allegations of the law firm ‘s representations that customer should retain the law firm for purposes of certain litigation, inter alia, because the lawyers who would be assigned to the case were specialists in the relevant area of law, amounted to mere puffery, opinions and future expectations, not actionable as fraud ], citing Schonfeld v Thompson, 243 AD2d 343, supra; see additionally Newmark & Co. Actual Property, Inc. v Gallo Vitucci Klar Pinter & Cogan, LLP, 2010 WL 4682652 [ Sup Ct, New York County 2010 ] [ Trial Order ] ). thus, any potential discovery yielding attest with esteem as to if the Attorneys had related know or expertness is inconsequential. As such, the Hornicks ‘ asserted want for discovery “ to see if it was puffery or outright lies ” is undue. The court docket notes that despite the fact that the Attorneys ‘ representations of their {qualifications} and expertness are statements of ship or previous information, and never guarantees of future efficiency, they’re nonetheless not actionable as a matter of regulation as impression and puffery ( see Jacobs v Lewis, supra; Bellinson Legislation, LLC v Iannucci, aff’d 102 AD2d3d 563 ; Schonfeld v Thompson, supra ). moreover, the court docket finds that these allegations lack the particularity required by CPLR 3016. Though the woo is aware that at this beseeching stage, plaintiff needn’t produce absolute proof of fraud ( Eurycleia, at 559, 883 NYS2d 147, 910 NE2d 976 ), underneath the information of this casing, the Hornicks ‘ obscure and conclusory allegations that neither Bluming nor Kimmel had any “ important expertise ” within the areas alleged and had been “ not accustomed to the foundations, insurance policies and procedures of UNCITRAL, ” don’t give heighten to an inexpensive inference that the Attorneys dedicated fraud ( see Bress v Weiser LLP, 2007 WL 2175877 ( trial Order ) [ Supreme Court, New York 2007 ] [ dismissing allegations of fraud as dim and conclusory, since plaintiff did not assert that defendant promised to bring along a particular client, and failed to do so, or that he said to have a specific skill or degree, that he later turned out not to possess ] ). right here, the Hornicks don’t allege any concrete, present information which might contradict the representations claimed to have been made by Bluming and Kimmel as to their expertness and talent to deal with the mandatory work, apart from normal assertions that the Hornicks had been “ charged a whole bunch of 1000’s of {dollars} ” for research that was not accomplished, or was pointless or would have been pointless if the legal professionals had been competent and had wanted expertise. The court docket notes that, opposite to the Attorneys ‘ arguments, the Hornick ‘s claims will not be for malpractice as there aren’t any allegations that the Attorneys acted negligently such that the negligence was the proximate reason behind the Hornicks ‘ damages ; and that “ however for ” the Attorneys ‘ malpractice, the Hornicks would have obtained a extra advantageous resultant position, would have prevailed within the underlying motion or wouldn’t have sustained some precise and ascertainable injury ( see Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [ 1st Dept 2007 ] ; Bishop v Maurer, 33 AD3d 497, 498 [ 1st Dept 2006 ], affd 9 NY3d 910 [ 2007 ] ). moderately, the Hornicks ‘ allegation is that the “ extent ” of the Attorneys ‘ have within the UNCITRAL arbitration turned out to be inadequate to prosecute the matter utilizing fewer billable hours.
— — — — consequently, the Hornicks ‘ counterclaim and third-party declare for imposter are dismissed. Conclusion Primarily based on the foregoing, it’s hereby ORDERED that the gesticulate of the plaintiff Meister Seelig & Fein, LLP and the third-party defendants Bluming Freiman & Franco, P.C., Freiman Franco, P.C., Sidney Bluming and Jeffrey Kimmel, pursuant to CPLR 3211 ( a ) ( 7 ) and 3016 ( boron ), to dismiss the counterclaims by defendants Louis Hornick and Louis Hornick & Co., Inc. towards plaintiff Meister Seelig & Fein, LLP and the third-party grievance by defendant/third-party plaintiff Louis Hornick & Co., Inc., towards the third-party defendants is granted in its entirety and mentioned counterclaims and the third-party ailment are hereby sever and dismissed. And it’s far ORDERED that the events shall seem for a standing convention at Room 438, Half 35, 60 Centre Road, New York, New York, on July 23, 2013, at 2:30 publish meridiem ; and it’s farther ORDERED that advocate for mentioned plaintiff shall serve a duplicate of this order with detect of entry inside 20 days of entry. This constitutes the choice and order of the Court docket.

Hon. Carol R. Edmead, J.S.C.

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