.; ; SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -against- Plaintiff, Index No. COMPLAINT LESLIE MODELL Defendant. TO THE SUPREME COURT OF THE STATE OF NEW YORK Plaintiff Boies, Schiller & Flexner LLP ("Boies, Schiller &Flexner"), appearing prose, all~:ges the following for its complaint: PARTIES, JURISDICTION AND VENUE 1. Plaintiff Boies, Schiller & Flexner LLP is a limited liability partnership with its principle place of business at 575 Lexington Avenue, New York, NY I 0022. 2. Pefendant Leslie Modell is an individual who resides at 760 Park Avenue, New York, NY 10021. 3. This Court has jurisdiction over the defendant by virtue ofcplr 301, because defendant resides in the State of New York. 4. Venue in the County of New York is proper pursuant to CPLR 503 because both plaintiff and defendant reside in New York County, and the conduct complained of took place in New York County..FACTUAL ALLEGATIONS Page 1 of7
5. Boies, Schiller & Flexner is engaged in the practice oflaw, specializing in complex commercial litigation, including securities litigation and shareholder derivative actions. 6. Boies, Schiller & Flexner was retained by defendant on or about March 11, 2011, to provide legal services with respect to a potential action against Mitchell Modell alleging breach of contract, conversion, promissory estoppel, intentional infliction of emotional distress, prima facie tort, unjust enrichment and constructive trust. 7. Defendant agreed to pay Boies, Schiller & Flexner for services provided and promised to pay all legal fees and associated costs in a timely manner, as billed (the Agreement).. A copy of the Agreement is attached as Exhibit 1 to this complaint. 8. Defendant also agreed to pay Boies, Schiller & Flexner for services provided and promised to pay all legal fees and associated costs "with respect to other matters, in the absence of a written agreement specifically addressing that representation, the other matters will be handled on an hourly basis and fees and costs will be payable in accordance with our Billing Policy Statement" which was attached and incorporated by reference in the Agreement (see Exhibit I at 2). 9. Pursuant to this Agreement, Boies, Schiller & Flexner undertook to represent defendant in connection with the aforementioned potential action against Mitchell Modell, and in connection with proceedings in the Nassau County Surrogate's Court concerning the estate of defendant's late father William Modell (File No. 350478). 10. Boies, Schiller & Flexner dutifully recorded all services provided to the defendant as well as all expenses incurred on defendant's behalf, as per the Agreement. II. Boies, Schiller & Flexner provided monthly invoices to defendant, in accordance with the Agreement. The invoices itemized each task for which services were rendered. The Page 2 of7
invoices further detailed specific amounts of time spent on each task, all attorneys and other professionals involved, and the hourly rates of each employee. These invoices also itemized expenses incurred by Boies, Schiller.& Flexner in its representation of defendant, including research costs, transportation,. filing fees, and other services. 12. On information and belief, all of Boies, Schiller & Flexner's invoices were received and retained by defendant. 13. In April2012, Boies Schiller, & Flexner withdrew from representing defendant in connection with her potential claims against Mitchell Modell and thereafter filed a motion to withdraw as her counsel in the Nassau County Surrogate's Court matters, which motion was granted on July 13, 2012. 14. On or about September II, 2012, at the request of defendant, Boies, Schiller & Flexner agreed to reappear in the Nassau County Surrogate's Court matters and to re-initiate representation of defendant in connecti()n with the. potential claims against Mitchell Modell. Boies, Schiller & Flexner thereafter filed a notice of appearance once again in the Nassau County Surrogate's Court matters on October 16, 2012. In addition, on or about September II, 2012, defendant paid all receivables outstanding up through that date, as was a condition of Boies, Schiller & Flexner re-appearing in these matters, and also promised to timely pay her legal bills going forward, as was already re,quired by the Agreement and was re-emphasized to defendant when Boies, Schiller & Flexner returned to these matters. l 5. After Boies, Schiller & Flexner re-appeared as counsel for defendant, defendant (in addition to paying her outstanding balance for prior months as set forth above) promptly paid Page 3 of7
her invoices in full and even had a credit balance of $20,423 going into October 20 12. 1 Beginning in October 2012, however, defendant stopped paying her invoices and accumulated an outstanding receivable through February 2013 of $156,748.76. Boies, Schiller & Flexner, once again, was left with no choice but to withdraw for lack of payment. Accordingly, on January 29, 2013, Boies, Schiller & Flexner withdrew from representing defendant in connection with her potential claims against Mitchell Modell. Shortly thereafter, Boies, Schiller & Flexner moved to withdraw. in the Nassau County Surrogate's Court matters on Janl!ary 30, 2013. 16. From the inception of its representationofdefendantonmarch II, 2011 until the first time it withdrew, and from the inception of its "re-appearance" in these various matters until it withdrew again for non-payment, Boies, Schiller & Flexner ably provided legal services as requested by the defendant. Boies, Schiller & Flexner rendered invoices for these services, and (i) defendant paid all invoices promptly in full for services rendered from March 20 11 until November 2011; (ii) paid in full all invoices due and outstanding at the time that Boies, Schiller & Flexner re-appeared in September 2012; and (iii) paid all invoices in full for services rendered through September 2012 and even carried a credit balance forward into October 2012. 17. Throughout Boies, Schiller & Flexner's representation, defendant did not object to any invoice nor state that any invoice would not be paid in full. Defendant has not returned any invoice. 18. As stated above, however, for invoices beginning the month of October 2012 onward, defendant Leslie Modell ceased payment on her invoices, despite Boies, Schiller & Flexner' s continued representation until its withdrawal in 2013. 1 This credit balance was applied towards defendants October 2012 bill, leaving her owing Boies, Schiller & Flexner $30,396.19 for that month. Page4of7
19. For fees and costs incurred from October 2012 through February 2013, defendant Leslie Modell received invoices from Boies, Schiller & Flexner monthly, reflecting that she owes a total of$150,195.56 in time-related charges, and $6,553.20 in other charges. The total amount billed to defendant Leslie Modell that remains unpaid is $156,748.76. Copies of the cover letters and summaries ofthe outstanding invoices are attached as Exhibit 2 to this complaint. 20. Defendant's refusal to honor Boies, Schiller & Flexner's outstanding invoices constitutes a material breach of the Agreement. 2 I. Boies, Schiller & Flexner seeks to recoverthe full amount owed in the invoices. COUNT I (Breach of Contract) 22. Boies, Schiller & Flexner incorporates by reference the allegations stated in the above paragraphs. 23. The Agreement represents a valid, enforceable contract between Boies, Schiller & Flexner and Defendant Leslie Modell. 24. Boies, Schiller & Flexner has fulfilled all the obligations and conditions precedent under the Agreement. 25. Defendant has.materially breached the Agreement in that she. has failed to pay the invoices in Exhibit 2 for services rendered by Boies, Schiller & Flexner. 26. By reason of this material breach of the Agreement, there is now due and owing to Boies, Schiller & Flexner a total of$156,748.76 from defendant Leslie Modell. COUNT II (ACCOUNT STATED) Page 5 of7
27. Boies, Schiller & Flexner incorporates by reference the allegations stated in the above paragraphs. 28. By virtue of defendant's aforementioned acts and circumstances, Boies, Schiller & Flexner asserts a claim for account stated pursuant to New York State and common law against defendant for failure to pay the balance of her stated account for work performed and invoiced for October 2012 through February 2013, in the amount of$156,748.76. 29. Boies, Schiller & Flexner has sent, and defendant has received, detailed invoices as per the Agreement, and demands for payment on these invoices, which have not been timely met nor reasonably objected to. 30. Although an account for these charges was du1y stated and demand made, defendant has failed and refused to pay such charges. 31. By reason of the forgoing, an actionable account stated has been cre;ated rendering Boies, Schiller & Flexner entitled to an award of damages in an amount of$156,748.76 from defendant Leslie Modell. PRAYER FOR RELIEF WHEREFORE, Boies, Schiller & Flexner respectfully requests that the Court enter judgment as follows: A. On the fu:st cause of action for breach of contract, award Boies, Schiller & Flexner appropriate damages of $156,748.76 from defendant Leslie Modell, as well as incidental and consequential damages and interest; B. On the second cause of action for an account stated, award Boies, Schiller & Flexner appropriate damages of$156,748.76 from defendant Leslie Modell, as well as incidental and consequential damages and interest; Page 6 of7
C. Award Boies, Schiller & Flexner the expenses, including attorneys' fees and costs, incurred in prosecuting this action; and D. Award Boies, Schiller & Flexner such other and further relief as this Court finds just and equitable. Dated: New York, NY April22, 2013 Respectfully Submitted,.By:~~- Nichol:. Gravante Jr. Richard J. Bettan Elan M. Nehleber 575 Lexington Avenue 7 ' Flopr New York, New York 10022 Telephone: 212-446 2320 Facsimile: 212-446-2350 Of Counsel: Karen C. Dyer 121 South Orange Avenue Suite 840 Orlando, Florida 32801 Telephone: 407-245-8793 Facsimile: 407-425-7047 Page 7 of7