| Arfa v Zamir |
| 2008 NY Slip Op 08276 [55 AD3d 508] |
| October 30, 2008 |
| Appellate Division, First Department |
| Rachel L. Arfa et al., Plaintiffs, v Gadi Zamir et al.,Defendants. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Intervenor-Respondent;546-552 West 146th Street LLC et al., Intervenors-Appellants. (And OtherActions.) |
—[*1] Simpson Thacher & Barlett, LLP, New York (Mark G. Cunha of counsel), forrespondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered April 30, 2008,which denied the motion of 546-552 West 146th Street LLC, 522-536 West 147th Street LLC,West 162nd Street and Academy Street LLC, 100-102 East 124th Street Package LLC, Harlem ILLC and Harlem II LLC (collectively, the Property LLCs) to dismiss the intervention actionbrought by Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. (Mintz) to collect attorney's fees,unanimously modified, on the law, to dismiss Mintz's claim for the fees and costs it incurred inthe intervention action, and otherwise affirmed, without costs.
Mintz's breach of contract claims were correctly sustained since it cannot be determined as amatter of law that the written letters of engagement insufficiently explained the scope of the workallegedly performed by Mintz on behalf of the Property LLCs (see 22 NYCRR 1215.1).The factual allegations in Mintz's complaint and in its attorney's affirmation are not plainlycontradicted by the letters (CPLR 3211 [a] [1]; see Bishop v Maurer, 33 AD3d 497[2006], affd 9 NY3d 910 [2007]). Moreover, issues of fact exist whether the PropertyLLCs ratified the terms of the letters by making payment for services rendered by Mintz (seeEdison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249, 253 [1989]).
The claim for fees and costs incurred by Mintz in its collection action should have beendismissed because it is based [*2]on a provision in the writtenletters of engagement that is not enforceable due to its nonreciprocal character (see Ween vDow, 35 AD3d 58 [2006]).
The cause of action for promissory estoppel was correctly sustained since the pleadings andcounsel's affirmation allege a clear and unambiguous promise by the Property LLCs to pay forlegal services rendered on their behalf by Mintz, Mintz's reasonable reliance upon this promise inperforming the requested legal work, and injury to Mintz by the Property LLCs' refusal to makepayment on the invoices for legal services rendered (see Urban Holding Corp. vHaberman, 162 AD2d 230, 231 [1990]). Concur—Tom, J.P., Nardelli, Sweeny,McGuire and DeGrasse, JJ. [See 2008 NY Slip Op 31332(U).]