Cascardo v. Dratel
| Decision Date | 18 April 2019 |
| Docket Number | 9022,Index 101055/17 |
| Citation | 98 N.Y.S.3d 579,171 A.D.3d 561 |
| Parties | Debra CASCARDO, Plaintiff–Respondent, v. Joshua DRATEL, Esq., etc., al., Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
171 A.D.3d 561
98 N.Y.S.3d 579
Debra CASCARDO, Plaintiff–Respondent,
v.
Joshua DRATEL, Esq., etc., al., Defendants–Appellants.
9022
Index 101055/17
Supreme Court, Appellate Division, First Department, New York.
ENTERED: APRIL 18, 2019
Vigorito, Barker, Patterson, Nichols & Porter, LLP, Garden City (Megan A. Lawless of counsel), for appellants.
Hagan, Coury & Associates, Brooklyn (Paul Golden of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about April 17, 2018, which, inter alia, denied defendants' motion to dismiss plaintiff's claims for fraud, excessive legal fees, and breach of fiduciary duty, unanimously modified, on the law, to dismiss the fraud claim, and to dismiss the breach of fiduciary duty claim as subsumed in the excessive attorney fees claim, and otherwise affirmed, without costs.
Plaintiff's fraud claim should have been dismissed because the complaint did not sufficiently plead justifiable reliance upon defendant's claim that it needed an additional $10,000 to
continue its work on her lawsuit. In fact, the complaint specifically asserts that plaintiff knew the additional $10,000 legal fee demanded by defendant would not be used for her benefit, but he required it because other clients had not paid him. This admission negates an element of the fraud claim, that plaintiff justifiably relied on the defendant's alleged misrepresentation that "[defendants] needed $10,000 to continue their work [on her case]" (see Shalam v. KPMG LLP, 89 A.D.3d 155, 157–158, 931 N.Y.S.2d 592 [1st Dept. 2011] ; Havell Capital Enhanced Mun. Income Fund, L.P. v. Citibank, N.A., 84 A.D.3d 588, 589, 923 N.Y.S.2d 479 [1st Dept. 2011] ).
The claim for excessive legal fees (and the related discussion in...
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