SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU. Plaintiffs, Index No /03

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: HON. ZELDA JONAS Justice JAMES MORAN and MORAN ENTERPRISES, INC., TRIAL/IAS PART Plaintiffs, Index No /03 - against - Sequence No. 8, 9, 10, 11, 12, 13 Motion Date: November 17, 2004 MARGARET HURST, HOWARD WUNDERLICH, ADRIENNE FLIPSE HAUSCH, HEATH BERGER and STEINBERG, FINEO, BERGER & BARONE, P.C. a/k/a STEINBERG, FINEO, BERGER & FISCHOFF, P.C., Defendants. The following papers read on this motion: Notice of Motion for a Protective Order..... Supplemental Affidavit in Support Reply Affidavit. Reply Affidavits. - 5 Order to Show Cause Affidavit in Opposition..... Affirmation in Opposition Reply Affidavit in Support... Notice of Cross-Motion Affirmation in Opposition.... Affidavit in Opposition Opposition. Reply Affidavit on Cross Motion Notice of Motion. Defendants' Memorandum of Law in Support.... Reply Affirmation

2 Defendants' Reply Memorandum of Law in Support.18 Notice of Motion. Affirmation in Opposition.... Affidavit in Further Support Notice of Motion. Opposition to All Defendants Motions.... Motion by defendant, Heath Berger, and defendant pro se, Steinberg, Fineo Berger & Fischoff, P.c. ("SFB&F"), f/k/a Steinberg, Fineo, Berger & Barone, P., for an order pursuant to CPLR 3212 or CPLR 3211(a)(3 and/or 7) granting them summary judgment dismissing the plaintiffs' complaint and amended complaint and all crossclaims asserted against these moving defendants is granted. Motion by defendant pro se, Adrienne Flipse Hausch, for an order pursuant to CPLR 3212 and CPLR 3211(a)(3 or 7) granting her summary judgment dismissing the plaintiffs' complaint and/or amended complaint and all cross- claims asserted against this moving defendant is granted. Cross-motion by defendant, Margaret Hurst, for an order pursuant to CPLR 3212 granting her summary judgment dismissing this action as against her is granted. Motion by defendant, Margaret Hurst, for a protective order pursuant to CPLR 3103 limiting any deposition of this defendant to one conducted in North Carolina on written questions is denied as moot. Motion by plaintiff pro se, James Moran, for an order allowing him "to view and copy plaintiffs files and all other documents voluntarily provided by Mr. Howard Wunderlich, presently in the custody of the document and record room of the Nassau County Supreme Court(,) and to bar any other part or their counsel from viewing same

3 without permission of this Court upon motion and notice to the plaintiffs" is denied as moot. Motion by plaintiff pro se, James Moran, for an order permitting him to appear for Moran Enterprises, Inc. ("MEI"), in this action is denied as moot. This is an action for breach of contract and legal malpractice. The plaintiffs original complaint, which was fied and served on or about November , named two plaintiffs (i. James Moran and MEI) and four defendants (i. Margaret Hurst Howard Wunderlich, Adrenne Flipse Hausch, and Heath Berger) and asserted two causes of action (i. e. breach of contract and legal malpractice). A default judgment was entered against defendant, Wunderlich, on or about September , and the plaintiffs' claims against him were severed. On or about August 11, 2004, the plaintiffs fied and served a supplemental sumons and amended complaint without first obtaining leave of the Cour as required by CPLR 3025(b). This supplemental summons and amended complaint are, therefore nullties. Furthermore, the supplemental summons and amended complaint were dismissed by the order ofthis Court dated November and entered November Thus, the only complaint before the Court is the original complaint naming two plaintiffs and four defendants and containing two causes of action. Defendants, Hurst, Hausch, Berger, and SFB&F, all move to dismiss the causes of action asserted by plaintiff, MEI, on the ground that said corporation was dissolved on December 27, 2000 by proclamation of the Secretary of State pursuant to Section

4 203-a of the Tax Law for nonpayment of franchise taxes (Defendants Berger and SFB&F' s Exhibit K). This ground is substantial. Since the corporation has not been reinstated, it lacked standing to commence this action and to assert any claims herein. (See, Vantrel Enterprises, Inc. v. Vantage Petroleum Corp. 270 A. 2d 412; DeGeorge v. Yusko 169 A. 2d ; Brandes Meat Corp. v. Cromer 146 A. 2d ). Consequently, the causes of action asserted by plaintiff, MEI, shall be dismissed. Defendant, Heath S. Berger s/ha Heath Berger, states that: "(He) is an attomeyat-law employed by SFB&F, a professional corporation engaged in the practice of law. (and that) (He) joined SFB&F in 1995 and (has) been continuously employed by the firm to date (i., October )." Mr. Berger further states that: "In July, 2001, in (his) capacity as an employee ofsfb&f, (he) met with plaintiff James Moran and provided legal advice regarding a possible bankptcy filing for MEI." Mr. Berger additionally states that: "Following the consultation, MEI, through its President, James Moran, retained SFB&F to fie a Voluntary Petition of Bankptcy under Chapter 11 of the Bankptcy Code. " Mr. Berger also states that: "Anexed hereto as (Defendants Berger and SFB&F' s) Exhibit L is a July 23, 2001 written retainer agreement between SFB&F and MEI, executed by James Moran, as President of ME I." Mr. Berger contends that: "Neither SFB&F nor (he) (has) ever agreed to provide or have provided any legal services to James Moran, individually. (and that) James Moran has never retained SFB&F to represent him on his own behalf. " Mr. Berger furthermore contends that "all legal services provided to MEI were provided by SFB&F

5 of which (he) (is) an employee. (and that) As such, the requisite privity to support a contractual or quasi-contractual claim against (him) does not exist." The Court holds that Mr. Berger has made a prima facie showing that Mr. Moran retained SFB&F, not him personally, and that all services rendered to Mr. Moran were rendered by SFB&F. The Court holds, however, that the retainer agreement between SFB&F and MEI was actually a retainer agreement between James Moran, as an individual, and SFB&F. This is so because MEI was dissolved before Mr. Moran retained SFB&F to represent ME!. The burden of proof is now on the plaintiff "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp. 68 N. 2d 320, 324). Since the plaintiff has not controverted Mr. Berger s proof, Mr. Berger is granted sumary judgment dismissing the plaintiff s complaint and all cross-claims as against him. Defendant, Adrienne Flipse Hausch, states that: "(She) did not have an agreement with (Margaret) Hurst to represent Moran Enterprises on her behalf. (and) (She) had no agreement with Moran Enterprises Inc. " Ms. Hausch further states that: The only retainer agreement between (Ms.) Hurst and any Plaintiff is with Moran Enterprises, Inc." (Defendant Hausch' s Exhibit H). Ms. Hausch additionally points to paragraph 31 of the plaintiffs original complaint, which reads as follows: "Mrs. Adrienne Haus( c)h never contacted the Plaintiff nor did she ever appear in court on Plaintiffs behalf, or have Plaintiffs fie, retainer, etc. " The Court also notes that in paragraph 2 of his bil of particulars to defendant Hurst, the plaintiff states that

6 Adrienne Flipse Hausch was not retained by plaintiffs directly" (Defendant Hurst' Exhibit C). The Court holds that Ms. Hausch has made a prima facie showing that there was no attorney-client relationship between her and the plaintiff. Since the plaintiff has not controverted this showing, Ms. Hausch is granted summar judgment dismissing the plaintiff's complaint and all cross-claims asserted against her. Defendant Hurst cross-moves for summary judgment based upon the plaintiff's responses to her demand for a bil of particulars and the retainer agreement between MEI and defendant Hurst. Counsel for Ms. Hurst states that: "In response to 3 of Margaret Hurst' s demand for a bil of particulars, plaintiff specified that ' Margaret Hurst was retained by written agreement'. In response to 4 of that demand, plaintiff indicated that the written retainer agreement with Margaret Hurst was a document he produced with Bates Nos , a copy of which is annexed hereto as (Defendant Hurst's) Exhibit D. (and) In response to 5 of that demand, plaintiff indicated that there was no oral agreement in regard to retaining defendant Margaret Hurst" (Defendant Hurst's Exhibit C). The Court holds that Ms. Hurst has made a prima facie showing that there was no attorney-client relationship between her and the plaintiff. Since the plaintiff has not controverted this showing, Ms. Hurst is granted summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against her. With the dismissal of the plaintiff's causes of action against defendants, Hurst, Hausch, and Berger, there is no

7 :: """-, legal basis for the cross-claims asserted against SFB&F. Thus, SFB&F is granted summary judgment dismissing those cross-claims. Accordingly, the plaintiffs complaint and all cross-claims asserted in this action are dismissed. The counterclaim asserted by defendant pro se, Adrienne Flipse Hausch against plaintiff, James Moran, for malicious prosecution is hereby severed, and this action shall continue with respect thereto. Dated: I/?I tj x " IS., "I JAN '\ '3 1\)\)5 cou NP-SSAU E.RK' COUNT\' CL OF"-