| Fulbright & Jaworski, LLP v Carucci |
| 2009 NY Slip Op 04729 [63 AD3d 487] |
| June 9, 2009 |
| Appellate Division, First Department |
| Fulbright & Jaworski, LLP, Respondent, v Sal Carucci,Appellant, et al., Defendant. |
—[*1] Fulbright & Jaworski LLP, New York (Rebecca Massimini of counsel), respondent prose.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered December 10, 2008,which denied defendant Sal Carucci's motion to dismiss the complaint as against him pursuant toCPLR 3211 (a), unanimously reversed, on the law, with costs, and the motion granted. The Clerkis directed to enter judgment in favor of defendant Carucci dismissing the complaint as againsthim.
Plaintiff commenced this action against defendant Seasons Contracting Corp. and defendantCarucci, Seasons' president, to recover legal fees. In the complaint, plaintiff alleged, in relevantpart, that:
"4. Prior to December 2007, plaintiff performed legal services for both defendants including,among other things, representing Seasons in an action commenced by trustees of variousmulti-employer trust funds which had alleged that Seasons had failed to make appropriatecontributions to those funds on account of the employee services performed by bargaining unitmembers of the Mason Tenders Council. That action had been commenced against Seasons inthe United States District Court for the Southern District of New York . . .
"5. In addition to providing services in connection with that lawsuit, plaintiff provided legalservices to Sal Carucci in connection with a claim made by various unions and trustees ofmulti-employer trust funds that an alter ego status existed between and among Seasons. . . , Carucci, and other corporations and individuals. As a result of therepresentation of Carucci by plaintiff, the claims of an alter ego status were not pursued againstCarucci.
"6. Despite due demand, the sum of $57,632.04 for legal services tendered by plaintiffremains due and owing to plaintiff by Carucci and Seasons in breach of the agreement tocompensate plaintiff for the services it had rendered to the defendants."
Carucci moved to dismiss the action as against him on the ground that the complaint [*2]failed to state a cause of action against him. Alternatively, Caruccisought dismissal of the action on the ground that documentary evidence he submitted with themotion conclusively established that plaintiff had no claim against him. In support of the motion,Carucci submitted an affidavit in which he averred that he "never retained plaintiff for legalservices in my individual capacity, but rather solely on behalf of . . . Seasons"; hewas not a named defendant in the federal action in which plaintiff represented Seasons; he didnot sign or receive a retainer agreement from plaintiff; and he did not sign or receive a personalguarantee requiring him to assume responsibility for Seasons' legal bills. Documents relating tothe federal action support Carucci's assertion that he was not a defendant in that action.
Carucci also submitted five letters with accompanying invoices sent from plaintiff toCarucci. Each letter was addressed to "Mr. Sal Carucci, Seasons Contracting Corp.," andinformed Carucci that plaintiff's "statement for legal services" for a specified period wasenclosed with the letter. Each invoice, in turn, was addressed to "Seasons Contracting Corp."Finally, Carucci submitted a letter from an employee of plaintiff to Tina Girardo, an employee ofSeasons, outlining the last four invoices. The letter makes plain that the invoices "were sent tothe Company" and that no payment on the invoices had been received. The letter closed bystating that the "outstanding amounts total $55,058.98, and together with the outstanding balanceon [a prior invoice] in the amount of $2,573.06 . . . , the Company isindebted to [plaintiff] for legal services rendered in the amount of $57,632.04" (emphasis added).
Plaintiff submitted only an attorney's affirmation in opposition to the motion. Supreme Courtdenied the motion, finding that the complaint pleaded a cause of action for quantum meruitagainst Carucci, and this appeal by Carucci ensued.
Accepting as true the facts pleaded by plaintiff and according plaintiff the benefit of everyfavorable inference to be drawn from those facts, plaintiff failed to state a cause of action forquantum meruit. To state such a cause of action, plaintiff must allege (1) the performance ofservices in good faith, (2) the acceptance of the services by the person to whom they arerendered, (3) an expectation of compensation therefor, and (4) the reasonable value of theservices (see Soumayah v Minnelli,41 AD3d 390, 391 [2007]). Here, there are simply no allegations supporting the last threeelements as the claim relates to Carucci. Notably, plaintiff offered no allegations that (1) Carucciaccepted services from plaintiff, (2) plaintiff had a reasonable expectation of compensation fromCarucci, or (3) the reasonable value of the services performed for which Carucci wasresponsible. Nor did plaintiff allege facts from which any of these elements reasonably can beinferred. With respect to the latter element, plaintiff alleged that Carucci and Seasons oweplaintiff $57,632.04; plaintiff did not differentiate the amounts allegedly owed by Carucci for theservices plaintiff claims it performed for him, on the one hand, and the amounts owed bySeasons for the services plaintiff performed for it. Plaintiff's failure to differentiate the amountsowed by Carucci and Seasons is all the more telling because plaintiff does not claim that Carucciis liable for Seasons' legal fees; plaintiff alleges that Carucci is liable for legal fees for servicesplaintiff allegedly performed for [*3]him. For these reasons, thataspect of Carucci's motion seeking dismissal of the complaint under CPLR 3211 (a) (7) shouldhave been granted. Concur—Saxe, J.P., Buckley, McGuire, Moskowitz and Acosta, JJ.