Feder Kaszovitz, LLP v Tanchum Portnoy 2013 NY Slip Op 32949(U) November 18, 2013 Supreme Court, Ne York County Docket Number: 156104/2012 Judge: Eileen A. Rakoer Cases posted ith a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.
[* 1] FILED: NEW YORK COUNTY CLERK 11/19/2013 INDEX NO. 156104/2012 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/19/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EILEEN A. RAKOWER PART /S- Index Number: 156104/2012 FEDER KASZOVITZ, LLP vs PORTNOY, TANCHUM Sequence Number: 001 SUMMARY JUDGEMENT INDEX NO.----- MOTION DATE---- MOTION SEQ. NO. --- The folloing papers, numbered 1 to, ere read on this motion to/for --------------- Notice of Motion/Order to Sho Cause - Affidavits - Exhibits Ansering Affidavits - Exhibits---------------- Replying Affidavits---------------------- Upon the foregoing papers, it is ordered that this motion is I No(s). I No(s). I No(s). l,.z, 3 ~15.~. 7 ~' q JO, I I u j:: (/) ::>.., 0... 0 0:: 0:: u.. 0::.. >- -...J z...j ~ ::> 0 u.. (/)... < (.) 0:: g, (!) z 0:: - (/) 3: - 0...J (/)...J < 0 u u.. -z :z:: 0... j:: 0:: 0 0 ::E u.. DECIDED IN ACCORDANCE WITH.ACCQlFANYltG DECISIONJ 0tmER Dated: ~ ~~~ _-,J.S.C. ~ HON. EILEEN A. RAKOWER 1. CHECK ONE:... 0 CASE DISPOSED ~NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE:... MOTION IS: 0 GRANTED 0 DENIED '.:J GRANTED IN PART 0 OTHER 3. CHECK IF APPROPRIATE:... 0 SETILE ORDER 0DONOTPOST 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE
[* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15 -------------------------------------------------------------------)( FEDER KASZOVITZ, LLP, Plaintiff, - against - TANCHUM PORTNOY, SARA KATZ PORTNOY, and SUTTON PARK CONSULTING GROUP, INC., Decision/Order Mot. Seq.: 001 Index No: 156104/2012 Defendants. -----------------------------------------------------------------)( HON. EILEEN A. RAKOWER, J.S.C. Plaintiff Feder Kaszovitz, LLP ("Plaintiff') brings this action to collect outstanding fees and disbursements in the amount of $116, 779 from defendants Tanchum Portnoy ("Portnoy"), Sara Katz Portnoy ("Katz"), and Sutton Park Consulting Group, Inc. ("Sutton") (collectively, "Defendants") in connection ith Plaintiff's legal representation of Defendants over the course of a three year period. The Complaint alleges the folloing causes of actions: services rendered, account stated, quantum meruit, and breach of contract. Defendants interposed an Anser ith Counterclaims. Presently before the Court is Plaintiff's motion for summary judgment on the second cause of action for account stated and the fourth cause of Action for breach of contract, against defendants Portnoy and Katz in the amount of $116,779. 1
[* 3] Defendants cross-move for summary judgment and for an Order dismissing Plaintiffs Complaint. As affirmative defenses, among others, Plaintiff asserts that the total amount billed by Plaintiff is "excessive and unreasonable" and "unnecessary and not supported by la." In support of its motion for summary judgment, Plaintiff submits the folloing: the affirmation of Alvin M. Feder, a member of Plaintiff; the pleadings; a letter of engagement from Alvin M. Feder dated April 7, 2008, hich also contained a retainer agreement; copies of 16 statements of account and invoices rendered by Plaintiff to Portnoy and Katz from May 22, 2008 to April 29, 2011; check made out from Portnoy to Feder Kaszovitz, LLP dated 1/10/11 in the amount of $2500.00; checking account activity for Feder Kaszovitz hich indicates a returned deposit in the amount of $25,000.00; and an e-mail from Portnoy to Feder dated March 2, 2011. Feder states that he has misplaced the copy of the retainer agreement hich Portnoy and Katz signed but that Portnoy and Katz do not dispute signing the agreement. In opposition to Plaintiffs motion for summary judgment and support of their cross motion, Defendants provide: the affidavit of Portnoy; the affidavit of Katz; the pleadings; the parties' Notices to Admit; Short Form Order, dated June 8, 2010, entered by the Hon. Ute. Wolff Lally, J.S.C.; correspondence sent by Plaintiff; and Plaintiffs memorandum dated May 29, 2012 submitted in Fee Dispute Arbitration. The proponent of a motion for summary judgment must make a prima facie shoing of entitlement to judgment as a matter of la. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a shoing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of Ne York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]; Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249, 251-252 [1st Dept. 1989]). "An account stated is an agreement beteen the parties to an account based upon prior transactions beteen them ith respect to the correctness of the 2
[* 4] separate items composing the account and the balance due, if any, in favor of one party or the other... In this regards, receipt and retention of plaintiffs accounts, ithout objection ithin a reasonable time, and agreement to pay a portion of the indebtedness, [gives] rise to an actionable account stated, thereby entitling plaintiff to summary judgment in its favor." (Shea & Gould v. Burr, 194 AD2d 369, 370 [1st Dept. 1993]). The elements of a cause of action for breach of contract are ( 1) formation of a contract beteen plaintiff and defendant, (2) performance by plaintiff; (3) defendant's failure to perform, (4) resulting damage. (Furia v. Furia, 116 AD2d 694, 498 NYS2d 12 [2nct Dept 1986]). Here, as set forth in Feder's affirmation, on April 4, 2008, Feder met ith Portnoy and Katz to "discuss the possibility of convincing Allstate Insurance Company to defend and indemnify Sutton, a corporation holly oned by Katz, in a personal injury lasuit against Sutton as the oner of a house, knon as 148 Sutton Park South, Larence, Ne York" and then if necessary, to commence a declaratory judgment action seeking coverage for Sutton by Allstate. Plaintiff ould also defend Sutton in the pending underlying action brought by Mr. Kupferberg in the action entitled Eric Kupferberg v. Sutton Park Consulting Group, Inc., Tanchum Portnoy, and Sara Katz, Supreme Court- State of Ne York, County of Nassau, Index No. 1263/08. Defendants executed Plaintiff's engagement letter, hich states that Portnoy and Katz are to pay the Firm's fees and disbursements as follos "$375.00 an hour for partners' time and lesser amounts for the time of our associates. We also expect to be reimbursed for disbursements hich e advance, such as Court filing fees, photostating, etc." This letter also acknoledges the receipt of $7500.00 toards the Firm's fee. Feder avers that Plaintiff thereafter rendered 16 detailed statements of account to Portnoy and Katz covering services performed from April 4, 2008 to March 21, 2011 and Portnoy and Katz did not dispute any invoice or statement of account until after Plaintiff's legal services ere completed hen Portnoy then 3
[* 5] rote to Mr. Feder on March 2, 2011 stating,"... e ask you to ait and see if e indeed in, ith the hopes of finding a happy division of proceedings [sic].". In opposition, Defendants submit the affidavits or Tanchum Portnoy and Sara Katz Portnoy. Both defendants aver that they became concerned ith the increasing amount of fees and expressed their objection to Feder on several occasions and that Feder acknoledged their objection. Defendants submit a letter dated October 20, 2008 from Feder to Mr. and Mrs. Tanchum Portnoy, hereby Feder rites," I recognize that the legal fees are increasing. Of some solace should be that our lasuit against Allstate requests, as part of our relief, that your legal fees for having to defend Kupferberg's lasuit be reimbursed by Allstate. There is no certainty that e ill succeed in this regard. If there is no meaningful assumption by Allstate of its obligation to reimburse you, or if the Court does not direct that Allstate do so, I ill be very conservative on our final invoice." Defendants further submit a letter dated July 28, 2010, in hich Feder rites, "Please call me so e can discuss a reduction of the enclosed bill." Defendants also annex a letter dated September 30, 2012 in hich Feder rites, "I recognize a $96,000.00 bill is frightfully high, particularly hen added to the fees and disbursements already paid. It goes ithout saying that you are entitled to a meaningful discount, so please call me to discuss." Here, as Defendants have provided evidence that they objected to Plaintiffs legal fees and Plaintiff acknoledged their objection and there is an issue of fact as to the final amount oed, Plaintiffs motion for summary judgment is denied. Defendants' cross motion for summary judgment is also denied as they have failed to make out a prima facie case arranting judgment in their favor and a dismissal of Plaintiffs action. Wherefore, it is hereby, ORDERED that Plaintiffs motion for summary judgment is denied; and it is further ORDERED that Defendants' cross-motion for summary judgment is denied. 4
[* 6] This constitutes the Decision and Order of the Court. All other relief requested is denied. DATED:NOVEMBERl8,20!3 '--A~ EILEEN A. RAKOWER, J.S.C. """" 5