Curtis v. Berutti
| Docket Number | Index No. EF009383-2019 |
| Decision Date | 24 August 2022 |
| Citation | 77 Misc.3d 327,176 N.Y.S.3d 423 |
| Parties | Wilfred Robert CURTIS, Plaintiff, v. Ronald A. BERUTTI, Esq., and The Weiner Law Group, Defendants. |
| Court | New York Supreme Court |
77 Misc.3d 327
176 N.Y.S.3d 423
Wilfred Robert CURTIS, Plaintiff,
v.
Ronald A. BERUTTI, Esq., and The Weiner Law Group, Defendants.
Index No. EF009383-2019
Supreme Court, Orange County, New York.
Decided on August 24, 2022
Allan B. Rappleyea, Esq., Corbally, Gartland and Rappleyea, LLP, Attorneys for Plaintiff, 35 Market Street, Poughkeepsie, NY 12601
Anthony Iaconis, Esq., Diserio Martin O'Connor & Castiglioni LLP, Attorneys for Defendants, 50 Main Street, 10th Floor, White Plains, NY 10606
Timothy P. McElduff, Jr., J.
Background
By Findings of Fact, Conclusions of Law and Judgment of this Court (Onofry, A.J.S.C.) dated June 29, 2017 (Index No. 2050-2017), Plaintiff Wilfred Robert Curtis ("Mr. Curtis") consented to the appointment of a guardian for both his person and property pursuant to Article 81 of New York's Mental Hygiene Law. Attorney Mishael Pine, Esq. was appointed as the guardian of both Mr. Curtis’ person and property. Attorney Todd A. Kelson, Esq. was appointed as Mr. Curtis’ attorney in the guardianship proceeding.
At the time of the guardianship proceeding, Mr. Curtis was a party to two, complex pending civil litigations in New York State Supreme Court: Tabak is Tribeca, LLC, et al. v. Curtis, et al. [New York County Index No. 162954/2015] and Curtis, et al. v. Phillip , 2017 WL 11611059 [Dutchess County Index No. 52674/2016 2017]. Early into the guardianship proceeding, Ms. Pine was tasked with finding counsel to replace outgoing counsel for Mr. Curtis in the Tabak action. Ms. Pine secured the services of Defendant Weiner Law Group as replacement counsel in the Tabak litigation.
Defendant Ronald A. Berutti, Esq., was the partner at Defendant Weiner Law Group who was primarily responsible for handling the Tabak litigation. Within a year, Mr. Curtis's counsel in the Phillip case was unable to continue their representation due to staffing issues. Under extreme time constraints, Ms. Pine was able secure Defendant Weiner Law Group to serve as replacement counsel in the Phillip litigation as well. This Court authorized the guardian's retention of The Weiner Law Group in both the Tabak and Phillip litigations by Orders dated June 6, 2017 and February 5, 2018.
In the course of litigating Mr. Curtis’ cases, The Weiner Law Group applied to this Court for approval of its attorney's fees on three occasions. Neither Mr. Curtis, nor his attorney (Todd A. Kelson, Esq.), nor his guardian (Mishael Pine, Esq.) ever objected to the reasonableness of the fees charged or to the results obtained by The Weiner Law Group. This Court approved each of The Weiner Law Group's fee applications as fair and reasonable ($46,960.98 by Order dated December 19, 2017; $27,917.73 by Order dated October 2, 2018; and $108,448.55 by Order dated October 2, 2018). Although not required for purposes of approving or denying an attorney's fee application, The Weiner Law Group's efforts proved to be successful, especially given the status and circumstances of the pending litigations at the time The Weiner Law Group replaced the prior counsel of record. (See Affidavit of Mishael Pine, Esq., attached as Exhibit 6 to Berutti Affidavit, as well as the Berutti Affidavit, generally).
At the request of Mr. Curtis, himself, and his attorney, Todd A. Kelson, Esq., and with the consent of his guardian, Mishael Pine, Esq., this Court terminated the guardianship of Mr. Curtis by Decision, Order and Judgment Terminating Guardianship dated January 17, 2019.
Following the guardianship's termination, Defendant Weiner Law Group filed a motion seeking the approval of fees and costs incurred from August 1, 2018 through the termination of the guardianship on January 17, 2019. Mr. Curtis filed opposition to motion. The motion was fully submitted on September 17, 2019.
By Order dated October 2, 2019, the Ninth Judicial District Guardianship Part (DiBella, J.S.C.) approved guardian Mishael Pine, Esq.’s final accounting and discharged her as guardian. Mr. Curtis moved to vacate the Order dated October 2, 2019.
On August 22, 2019, Mr. Curtis filed the above-captioned action sounding in legal malpractice against Defendants Ronald A. Berutti, Esq. and The Weiner Law Group. In response the Defendants filed the instant motion to dismiss the complaint. This matter, as well as The Wiener Law Group's final fee application, was stayed by this Court (Onofry, A.J.S.C.) pending the outcome of Mr. Curtis’ motion to vacate the Order approving the final guardianship accounting and discharge of the guardian.
By Order dated April 1, 2022, the Court (DiBella, J.S.C.) denied Mr. Curtis’ motion to vacate.
Thereafter, by Order of Transfer and Reassignment dated May 18, 2022, this Court (Onofry, A.J.S.C.) lifted the stay on the pending fee application and motion to dismiss the complaint and transferred these matters to this Part (McElduff, A.J.S.C.) for decision of the pending applications and all further proceedings under Orange County Supreme Court Index Nos. EF009283-2019 and 2050-2017.
By Decision and Order dated August 22, 2022, this Part approved The Weiner Law Group's application for attorney's fees and
costs incurred from August 1, 2018 through the termination of the guardianship on January 17, 2019 in the amount of $89,312.43.
The Complaint
Mr. Curtis’ Verified Complaint, dated December 19, 2019, contained four, labeled causes of action against the Defendants: (1) breach of fiduciary duty, (2) breach of contract, (3) unjust enrichment and (4) a demand for common law accounting. (See Iaconis Affm. Ex. A). The breach of fiduciary duty, breach of contract and unjust enrichment causes of action arise from the same set of facts and sought the same damages, which are "believed to be in excess of" $600,000.00, with such additional finance and interest charges that have accrued, including costs of legal fees. (See Iaconis Affm. Ex. A). Mr. Curtis’ accounting cause of action alleges that the Defendants are in possession of books and records without having returned them and demands that the Defendants provide him with "an accounting" for his Brooklyn property (1190 Bedford Avenue), turn over their files and "account" for the two lawsuits handled by the Defendants on Mr. Curtis’ behalf (the Tabak and Phillip cases).
The Motion to Dismiss
Defendants have filed a pre-answer motion to dismiss the complaint pursuant to CPLR § 3211(a)(4) (prior action pending, in reference to the most recent application for fees in the guardianship proceeding), CPLR § 3211(a)(5) (the collateral estoppel/res judicata effect of previously determined fee applications) and CPLR § 3211(a)(7) (failure to state a cause of action).
On a motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7), the complaint is to be afforded a liberal construction and the court should accept the facts alleged therein as true, accord the pleading the benefit of every reasonable inference and only determine whether the facts, as alleged, fit within any cognizable legal theory. See Hurrell-Harring v. State of New York , 15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 (2010).
Here, upon accepting the allegations of the complaint as true and according the complaint the benefit of every reasonable inference, this Court finds that the complaint, in its entirety, fails to state a cause of action as matter of law for the reasons that follow.
The Attorney's Liability to a Guardian's Ward for Legal Malpractice
The Defendants correctly view the complaint, regardless of titles that Mr. Curtis has placed on the causes of action, as containing a cause of action for legal malpractice. See Guiles v. Simser , 35 A.D.3d 1054, 1055, 826 N.Y.S.2d 484 (3d Dept. 2006) (holding that plaintiff's cause of action, labeled as a breach of her attorney's fiduciary duty, was essentially a claim of legal malpractice); Scanio v. Palmiere & Pellegrino, P.C. , 251 A.D.2d 1018, 1018, 674 N.Y.S.2d 527 (4d Dept. 1998) (finding that, despite plaintiff's characterization of the action as one for breach of contract, "the complaint in actuality sounds exclusively in legal malpractice, inasmuch as it is premised on allegations arising from the defendant[s’] purportedly inadequate legal representation of [plaintiff]").
As a defense to any claim for legal malpractice, the Defendants argue that Mr. Curtis’ guardian, Mishael Pine, Esq., retained Defendant Weiner Law Group, with Court approval, as opposed to Mr. Curtis having retained The Weiner Law Group, himself. That fact is not in dispute. At the time of Defendant Weiner Law Group's retention, Mr. Curtis was the incapacitated
ward of guardian Mishael Pine, Esq., and, therefore, could not have retained an attorney himself. (See Berutti Affd., Exs. 1 & 2). Since Mr. Curtis did not personally retain the Defendants himself, the Defendants conclude that there is no attorney-client relationship between them (i.e., no privity) and, thus, no possible liability for legal malpractice to Mr. Curtis. Stated another way, Defendants argue that the attorney-client relationship and contractual privity existed only between Defendant Weiner Law Group and guardian Mishael Pine, Esq., who retained The Weiner Law Group.
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