| Hyman v Burgess |
| 2015 NY Slip Op 01687 [125 AD3d 1213] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Marita E. Hyman, Appellant, v Susan Burgess,Respondent. |
Marita E. Hyman, West Edmeston, appellant pro se.
Susan Burgess, Hamilton, Ohio, respondent pro se.
Devine, J. Appeals (1) from an order of the Supreme Court (Cerio Jr., J.), enteredMay 2, 2013 in Madison County, which, among other things, denied plaintiff's motion todismiss defendant's counterclaims, and (2) from an order of said court, enteredSeptember 30, 2013 in Madison County, which, among other things, granted defendant'scross motion to dismiss plaintiff's amended complaint.
Plaintiff retained defendant, a licensed attorney, to represent her in various legalmatters, including perfecting appeals in a CPLR article 78 proceeding and an actionpursuant to Title IX (see 20 USC § 1681 et seq.) that hadbeen commenced against Cornell University by plaintiff's previous attorneys. Havinggrown discontent with defendant's services, plaintiff terminated defendant andsubsequently commenced this action for negligent infliction of emotional distress andlegal malpractice.[FN1] Defendant served an answer containingcounterclaims of breach of contract, quantum meruit and unjust enrichment. Thereafter,plaintiff moved to dismiss the counterclaims, which motion Supreme Court denied. Fourmonths later, the court granted defendant's cross motion to dismiss plaintiff's amendedcomplaint. Plaintiff appeals from both orders.
[*2] Plaintiff first asserts that Supreme Court erred indenying her motion to dismiss defendant's counterclaims. A motion to dismiss for failureto state a cause of action can be granted only where the facts alleged do not "fit withinany cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Lewis v DiMaggio, 115AD3d 1042, 1043 [2014]; Brooks v Key Trust Co. N.A., 26 AD3d 628, 629-630[2006], lv dismissed 6 NY3d 891 [2006]).[FN2] As to defendant's breach of contractcounterclaim, she alleged that the parties executed enforceable retainer agreements,defendant performed professional services under those agreements and plaintiff failed toperform, thereby causing defendant to sustain damages. Affording defendant'scounterclaims a liberal construction, accepting the allegations as true and givingdefendant "the benefit of every possible inference," we determine that she has stated aviable cause of action against plaintiff for breach of contract (EBC I, Inc. v Goldman, Sachs& Co., 5 NY3d 11, 19 [2005]; see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; Torok v Moore's Flatwork & Founds., LLC, 106 AD3d1421, 1422 [2013]). However, with regard to defendant's counterclaim that plaintiffwas unjustly enriched by her refusal to remit necessary payments for the legal servicesand related expenses that defendant provided, the assertions raised in defendant's breachof contract counterclaim echo this equitable claim and, therefore, it must be dismissed(see Corsello v Verizon N.Y.,Inc., 18 NY3d 777, 790-791 [2012]; Samiento v World Yacht Inc., 10 NY3d 70, 81[2008]).
Defendant's counterclaim of quantum meruit "requires a showing of 'a [party]'sperformance of services in good faith, acceptance of those services by [the other party],an expectation of compensation and proof of the reasonable value of the servicesprovided' " (RaffertySand & Gravel, LLC v Kalvaitis, 116 AD3d 1290, 1291-1292 [2014],quoting DerOhannesian v Cityof Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862[2014]). Accepting defendant's allegations as true, namely that she provided plaintiffwith legal services, in good faith and with the understanding that payment would beremitted, and that such services were accepted by plaintiff without the provision of duecompensation, we find that defendant stated a cognizable equitable claim for quantummeruit (see Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d at1291-1292; Venture Silicones,Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]).
Turning our attention to defendant's cross motion seeking dismissal of the amendedcomplaint, we conclude that Supreme Court properly dismissed plaintiff's legalmalpractice cause of action on the merits. " 'In order to sustain a claim for legalmalpractice, a plaintiff must establish both that the defendant attorney failed to exercisethe ordinary reasonable skill and knowledge commonly possessed by a member of thelegal profession which results in actual damages to a plaintiff, and that the plaintiffwould have succeeded on the merits of the underlying action "but for" the attorney'snegligence' " (Leder vSpiegel, 9 NY3d 836, 837 [2007], cert denied sub nom Spiegel vRowland, 552 US 1257 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d428, 434 [2007]; accord Hyman v Schwartz, 114 AD3d at 1112; see [*3]Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d1459, 1460 [2014]). Although plaintiff maintains that defendant's professionalcompetence was deficient and failed to conform with the requirements of the parties'retainer agreements, she does not allege, to any degree, that defendant's purportedshortcomings precluded her success in the litigation at issue or caused her to sustainascertainable damages (seeArnold v Devane, 123 AD3d 1202, 1204 [2014]; MacDonald v Guttman, 72AD3d 1452, 1455 [2010]; Tabner v Drake, 9 AD3d 606, 610 [2004]). Having failedto plead an essential element of a legal malpractice cause of action, Supreme Courtproperly granted defendant's motion to dismiss this claim (see Hyman vSchwartz, 114 AD3d at 1112; compare Snyder v Brown Chiari, LLP, 116 AD3d 1116,1116-1117 [2014]; Alaimo vMcGeorge, 69 AD3d 1032, 1034 [2010]). Likewise, the court's dismissal ofplaintiff's claims sounding in, among other things, unjust enrichment, breach of contractand breach of fiduciary duty—all of which were encapsulated within and entirelyduplicative of plaintiff's legal malpractice cause of action—was correct (see Adamski v Lama, 56 AD3d1071, 1072-1073 [2008]; Guiles v Simser, 35 AD3d 1054, 1055 [2006]).
Those remaining arguments that have not been expressly discussed herein have beenconsidered and found to be without merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the order entered May 2,2013 is modified, on the law, without costs, by reversing so much thereof as deniedplaintiff's motion to dismiss defendant's unjust enrichment counterclaim; motion grantedto that extent and said counterclaim dismissed; and, as so modified, affirmed. Orderedthat the order entered September 30, 2013 is affirmed, without costs.
Footnote 1:This Court decided anappeal in a similar action that plaintiff had commenced against her former attorneys inthe CPLR article 78 proceeding and federal Title IX action (Hyman v Schwartz, 114 AD3d1110 [2014], lv dismissed 24 NY3d 930 [2014]).
Footnote 2:To the extent thatplaintiff demanded the dismissal of defendant's counterclaims pursuant to CPLR 3211 (a)(1), we find that, because the record does not contain documentary evidence that "utterlyrefutes" defendant's allegations, Supreme Court properly denied plaintiff's motion on thisparticular ground (Mason v FirstCent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011]; see Goshen vMutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).