Landau P.C. v Goldstein 2010 NY Slip Op 32147(U) August 11, 2010 Supreme Court, New York County Docket Number: /08 Judge: Judith J.

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1 Landau P.C. v Goldstein 2010 NY Slip Op 32147(U) August 11, 2010 Supreme Court, New York County Docket Number: /08 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] NNED ON SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRFSFNT- HON. JUDITH J. GISCHE Index Number : /2008 J.S.C. LANDAU, P.C. vs GOLDSTEIN, LLOYD Sequence Number : 002 DISRA1S.S ACTION INDEX NO. MOTION DATE PART 10 MOTION SEQ. NO MOTION CAL. NO. The followlng papers. numbered 1 to were read on this rnotlon to/for Notice of Motion/ Order to Show Cause - Affidavits - Exhibits... Answerlng Affidavits - Exhlbita PAPERS NUMBERED Replying Aff ldavlta Cross-Motion: r] Yes No Upon the foregolng papers, kt la ordered that this motion motion (e) and crouslmotion(r) decided In accordance with the annexed d+clrionlordsr of wan date. HON. J-s-c- Check one: fl FINAL DISPOSITION ~NON-FINnlJ~SPoslTION Check if appropriate: 0 DO NOT POST 0 REFERENCE

3 [* 2] Supreme Court of the State of New York County of New York: IAS _ l l X Landau P.C. formerly known as Morris J. Eisen, P.C. and Morris J. Eisen, Individually, Plaintiffs, Decision/Order -against- Lloyd Goldstein and Kenneth F. Kaplan, Index # /08 Mot. Seq. # 002 Hon. Judith J. Gische: Pursuant to CPLR 2219(a) the following numbered &-qconsidered by the Court on this motion: PAPERS Notice of Motion, LFG affirm., exhibits... MP Affirm, in Opp Ip % LG Reply Affirm... NUMBERED.l Upon the foregoing papers the decision and order of the Court is as follows: Defendant Kenneth K. Kaplan ( Kaplan ) moves for an order dismissing this action, with prejudice, on the grounds that it is time barred. He also seeks an order precluding plaintiws from offering any evidence in this matter. Finally Kaplan seeks costs and sanctions. Statute of Limitations The underlying complaint claims that prior to the time, Morris J. Eisen ( Eisen ), an attorney, was disbarred from practicing law in 1992, he referred certain cases to Goldstein, pursuant to an understanding that Goldstein would pay Eisen a percentage of the legal fees earned as remuneration for [Eisen s] uncompensated work, Page 1 of 5

4 [* 3] disbursement expended, labor and services performed in connection with said cases prior to the disbarment of [Eisen]. Eisen and his alleged successor in interest have asserted causes of action for breach of contract ( first cause of action), unjust enrichment (second cause of action), under Judiciary Law 475 (third cause of action) and an accounting (fourth cause of action). Goldstein interposed an answer denying the material allegations of the complaint and asserting various affirmative defenses, including the statute of limitations. The parties agree that a six year statute limitations applies in this case. They differ on when the statute of limitations accrued. Kaplan argues that, he himself was disbarred in Consequently the underlying matters necessarily date back 20 years or more and are barred by the applicable statute of limitations. Plaintiffs, however, are no strangers to this issue, having litigated it in at least one prior case brought by them against other attorneys. The rule of law is that the statute of limitations for the breach of contract claims accrue when defendants received fees for the referred cases and refused demands for payment and that the statute of limitations for any quantum meruit recovery began to run when such cases were disposed of. Eisen v. Feder, 47 AD3d 595 (Is dept. 2008). At bar, the only demand for payment was made was to co-defendant Goldstein, by letter dated January 10,2003. The demand included some, but not anywhere near the number of, cases that are the subject of he underlying action. No demand was ever made to Kaplan. Consequently, since the first cause of action, for breach of contract, has not yet accrued, it is not barred by the statute of limitations. Kaplan s argument, that the rule of law permits a plaintiff to improperly control the running of the statute of Page2of 5

5 [* 4] limitations until years after the alleged operative events, may go to Kaplan s other defenses, like laches (see: Charles v. Charles, 296 AD2d 547 [2nd dept ; Bailev v. Cher noff, 45 AD3d 1 I3 [3rd dept ). It does not, however, affect the accrual of the statute of limitations. The cause of action for unjust enrichment is really the same of quantum meruit in this context. Snv der v. Bronfman, 13 NY3d 504 (2009). In this regard, the statute of limitations accrues from the time that the underlying cases were resolved by the defendant. Since it is undisputed that Kaplan was disbarred in 1988, he could not have resolved any of these cases after then. Since this action was brought in 2008, 20 years later, the claim for quantum meruitlunjust enrichment is barred by the applicable statute of limitations. The third cause of action is essentially to enforce an attorney charging lien. By its terms, the lien attaches to the final recovery taken in any action. Judiciary Law At bar since Kaplan was disbarred in 1988, he could not have collected and held any recovery on any referred case before This case was brought in 2008 and the statute of limitations on this cause of action has passed. The thi8rd cause of action un Judiciary Law $475 is therefore dismissed. The final cause of action is for an accounting. It is an equitable remedy that is predicated on claims of breach of fiduciary duty. Trepuk v. Frank, 104 AD2d 780 (I st dept. 1984). It is subject to a six year statute of limitations. Kaszira r v. Kazirer, 286 AD2d 598 (18t dept. 2001). The Court of Appeals has held that the time within which a proceeding seeking an accounting must be commenced begins to run either when the fiduciary s account is judicially settled or when there is an open repudiation by the Page 3 of 5

6 [* 5] fiduciary of his or her obligations. Matter of Babarash, 31 NY2d 76 (1972). Until either event occurs, the statute of limitations does not begin to run. Westchester Reliaious Institute v. &merman, 262 AD2d 131 (Ist dept. 1999); In re Mireller, 853 NYS2d 245 (Sur. Ct. West Co. 2008). Neither event has occurred in this case. Consequently, any claim based upon allegations of breach of fiduciary duty is not barred by any statute of limitations. This conclusion is reached by the court, however, without deciding the underlying issue about whether there even is any fiduciary relationship between the parties. Issues about the nature of the parties relationship are, therefore, reserved for the parties to raise later in this action. Bill of Particulars Kaplan served a Demand of a Bill of Particulars on plaintiffs on or about April 28, No Bill of Particulars was ever served. No reason isgiven by plaintiffs why they ignored this demand. No offer to comply with the Demand (albeit belatedly) is made in response to the motion. Accordingly the motion is granted to the following extent, plaintiffs are given an addition 30 days from the date of this decision to provide a Bill of Particulars to Kaplan. In the event no such Bill of Particlars is provided, then Kaplan can renew his motion for preclusion. mctions Kaplan s collateral request for sanctions is denied at this time. Conclusion In accordance herewith it is hereby: ORDERED that defendant, Kenneth Kaplan s motion to dismiss the complaint is Page4of 5

7 [* 6] denied as to the first and fourth causes of action, and it is hereby ORDERED that defendant Kenneth Kaplan s motion to dismiss the complaint is granted as to the second and third causes of action, and it is hereby ORDERED that the second and third causes of action against Kenneth Kaplan only, are severed and dismissed; all other cause of action are continued and the Clerk is to enter judgment accordingly, and it is further ORDERED that Kenneth Kaplan s motion to preclude is granted only to the extent that plaintiffs are directed to provide a Bill of Particulars in response to the April 28, 2009 Demand on or before thirty days of the date of this decision and order and it is further ORDERED that defendant Kenneth Kaplan s motion for sanctions is denied, and it is further ORDERED that the parties shall appear for a preliminary conference on September 30, 2010 at 9:30 a.m.; no further notices will be sent, and it is further ORDERED that any requested relief not otherwise expressly granted herein is denied and this constitutes the decision and order of the court. Dated: New York August 11,2010 SO ORDERED: - J.G. Page 5 of 5