Bryan L. Salamone, P.C. v. Cohen

• Decision Date: 03 May 2013
• Citation: 2013 N.Y. Slip Op. 23144,40 Misc.3d 338,965 N.Y.S.2d 324
• Parties: BRYAN L. SALAMONE, P.C., Plaintiff, v. Melissa COHEN, Defendant.
• Court: New York Supreme Court

40 Misc.3d 338

965 N.Y.S.2d 324

2013 N.Y. Slip Op. 23144

BRYAN L. SALAMONE, P.C., Plaintiff,

v.Melissa COHEN, Defendant.

Supreme Court, Suffolk County, New York.

May 3, 2013.

Pragna Parikh, Esq., Smith Carroad Levy & Wan P.C., Commack, for Plaintiff.

Melissa Cohen, Coram, Defendant Pro Se.

JEFFREY ARLEN SPINNER, J.

Plaintiff has commenced this action claiming a breach of contract, specifically a Retainer Agreement for the provision of professional legal services. Plaintiff complaint demands the principal sum of $42,161.49 plus counsel fees of $10,540.37 together with interest at 18% per annum. This matter was electronically filed on July 5, 2012 and a copy of the Summons & Verified Complaint, without the index number or date of filing (a clear violation of the mandatory provisions of CPLR § 305(a)), together with Defendant's pro se Answer have been provided to the Court. Plaintiff now moves for an order pursuant to CPLR § 3212 granting summary judgment. No Affidavit of Service as required by CPLR § 306 has been provided to the Court. Defendant has interposed handwritten pro se opposition to the application, which is not insubstantial.

Plaintiff's claim is premised upon a document entitled “THIS IS NOT A FLAT RATE RETAINER” which is dated April 10, 2010 and attached as Exhibit B. It provides, inter alia, for an initial payment of $2,500.00 with billing at the “discounted” rate of $290.00 per hour. Reviewing the agreement in toto, however, leads the Court to the inescapable conclusion that it is indubitably a contract of adhesion. It follows then that such an agreement will be viewed in a light most favorable to the party who is not seeking enforcement. It contains a number of disturbing provisions including but not limited to a waiver of the right to demand a trial de novo following Part 137 Arbitration, waiver of the right of the client to receive billing as to the retainer amount, waiver of the attorney's obligation to retain the file and documents for seven years, the assertion that any items that are provided to counsel for the benefit of the client's case become property of the attorney, together with minimum billing amounts.

By way of the instant motion, Plaintiff demands a money judgment against Defendant in the principal amount of $42,161.49 for legal services purportedly rendered together with attorney's fees in the amount of $10,540.37 (25% of the claimed balance due) together with interest thereon at 18% per annum without any articulated basis for this claimed rate. In order to buttress Plaintiff's claim, there is appended to Plaintiff's motion as Exhibit B a document that was doubtless drafted by Plaintiff, dated December 7, 2010 and which reads as follows: “ December 7, 2010 To BRYAN L. SALAMONE & ASSOCIATES P.C.: I have personally met with you on December 7, 2010 and I have reviewed every single charge, and all work done through November 30, 2010. I do not object to any of the bills or the charges. I acknowledge receipt of every single bill. I believe the bills to be fair and reasonable and I agree to all of the charges as set forth in the bills. /s/ Melissa Cohen Sworn to before me this 7th day of December 2010. /s/ illegible Notary Public.” Since Plaintiff claims a balance due as of the date of that exhibit, this presumably is in the nature of some affirmation of indebtedness. There is no indication of the amount claimed due nor any indicia of the circumstances under which it was procured. According to Plaintiff's moving papers, this document was executed in connection with a payment arrangement.

In her opposing papers which are dated November 1, 2012, Defendant asserts, among other things, that Plaintiff stated that the total cost of representation would be in the area of $5,000.00, that there are “major discrepancies” between time spent and amounts billed, that she was the victim of “massive overbilling” by Plaintiff as a result of Plaintiff's multiple errors, signing papers prepared by Plaintiff which would exempt Plaintiff from having the debt discharged in bankruptcy and, most disturbing, that she was compelled by Plaintiff to sign papers “under duress.” She describes Plaintiff's principal as “... opportunistic in trying to get more money or drop my case.”

The Court is decidedly perplexed Plaintiff has not filed any reply papers in response to Defendant's opposition, especially in view of the rather serious allegations contained within the opposition.

That having been said, the function of the Court upon an application pursuant to CPLR § 3212 is that of issue finding, not issue determination. In order for a party to prevail on an application for summary judgment, it must be clear beyond any reasonable dispute that there are no material issues of fact, Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957). The proponent of a motion for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient admissible evidence to eliminate any material issues of fact from the proceeding, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). If the movant is successful in meeting the mandate for a prima facie case, only then does the burden shift to the party opposing the application to produce evidentiary proof that is legally sufficient to demonstrate the existence of a material issue of fact, Zuckerman v. City of New York, supra.

In the present matter before the Court, it is plain that Plaintiff has failed to meet its burden of bringing forth sufficient evidentiary proof to make a prima facie showing of entitlement to the relief it seeks. Based upon all of the submissions, it is evident that there are material issues of fact in this matter which preclude the granting of summary judgment (or indeed, any judgment at all) in Plaintiff's favor.

Inasmuch as Plaintiff has unsuccessfully moved for summary judgment, the provisions of CPLR § 3212(b) permit the Court to “search the record” and, if legally efficacious, it may sua sponte grant summary judgment in favor of the non-moving party without the need for a cross-motion, provided that the same is confined to the action or causes of action interposed by the moving party, Costello v. Hapco Realty Inc., 305 A.D.2d 445, 761 N.Y.S.2d 79 (2nd Dept.2003), Santagata v. Vinegar Hill Group LLC, 41 A.D.3d 576, 837 N.Y.S.2d 342 (2nd Dept.2007). While the language of that statute appears to be permissive on its face, there is authority which indicates that searching the record is mandatory, Wilkinson v. Skinner, 34 N.Y.2d 53, 356 N.Y.S.2d 15, 312 N.E.2d 158 (1974).

Upon a careful review of the entire record before the Court, it is clear that reverse summary judgment pursuant to CPLR § 3212(b) is appropriate, both legally and factually. For the reasons which follow, reverse summary judgment will be granted in favor of Defendant, dismissing this action with prejudice.

Annexed to Plaintiff's moving papers as Exhibit A is the Summons and Complaint which was used to commence the present action. As noted above, it bears neither an index number nor a date of filing, in derogation of CPLR § 305(a). This could very well engender confusion on the part of the recipient and indeed might lead to an unnecessary default. In addition, Plaintiff has failed to provide the Court with the Affidavit of Service pursuant to CPLR § 306 and is therefore deprived of the opportunity to examine same.

More disturbing than the foregoing procedural irregularities (which are curable under CPLR § 305) is the express language and demand in the Complaint. The Complaint bears a sworn verification by Bryan L. Salamone, the president of Bryan L. Salamone P.C. attesting to the truth of the matters therein contained. The ad damnum clause of the Complaint demands a money judgment against Defendant “... for the sum of $52,701.86...