Divito v. Fiandach

• Decision Date: 27 April 2018
• Docket Number: 167,CA 17–00324
• Citation: 160 A.D.3d 1356,76 N.Y.S.3d 290
• Parties: Stephen T. DIVITO, Plaintiff–Appellant, v. Edward L. FIANDACH, Defendant–Respondent. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1356
76 N.Y.S.3d 290

Stephen T. DIVITO, Plaintiff–Appellant,
v.
Edward L. FIANDACH, Defendant–Respondent. (Appeal No. 1.)

167
CA 17–00324

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 27, 2018

STEPHEN T. DIVITO, PLAINTIFF–APPELLANT PRO SE.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANT–RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Memorandum:

In November 2011, plaintiff was driving 85 miles per hour down Lake Ontario State Parkway with a blood-alcohol level of 0.15, when his vehicle broadsided another vehicle,

76 N.Y.S.3d 292

killing both persons therein. Plaintiff drove away from the scene at high speed and crashed his vehicle, seriously injuring himself and his passenger. The People sought to charge plaintiff with two counts of aggravated vehicular homicide ( Penal Law § 125.14 ) and other crimes for which he faced consecutive terms of incarceration. While in the hospital, plaintiff retained defendant to represent him for a flat fee of $125,000. In October 2012, plaintiff pleaded guilty to, inter alia, vehicular manslaughter in the first degree (§ 125.13) in exchange for a term of incarceration of 5 to 15 years. Thereafter, plaintiff commenced this action to recover the full amount of the retainer.

Plaintiff contends that Supreme Court erred in granting defendant's motion to dismiss the complaint on the grounds of documentary evidence and failure to state a cause of action (see CPLR 3211[a][1], [7] ). We agree with plaintiff with respect to the second cause of action based upon the alleged unconscionability of the retainer agreement, and we therefore modify the order accordingly. On a motion to dismiss, a court must accept the plaintiff's allegations as true and determine whether they fit into any cognizable legal theory (see Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268 [2008] ; Matter of Machado v. Tanoury, 142 A.D.3d 1322, 1323, 38 N.Y.S.3d 356 [4th Dept. 2016] ). Affidavits submitted by a plaintiff may also be considered to remedy any defects in the complaint (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). Affidavits submitted by the defendant, however, rarely warrant dismissal of the complaint unless they conclusively establish that plaintiff has no cause of action (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ).

"[C]ourts as a matter of public policy give particular scrutiny to fee arrangements between attorneys and clients, casting the burden on attorneys who have drafted the retainer agreements to show that the contracts are fair, reasonable, and fully known and understood by their clients" ( Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 176, 507 N.Y.S.2d 610, 499 N.E.2d 864 [1986] ; see Matter of Lawrence, 24 N.Y.3d 320, 336, 998 N.Y.S.2d 698, 23 N.E.3d 965 [2014] ). Such an agreement is deemed to be unconscionable if it is "so grossly unreasonable as to be [unenforceable according to its literal terms] because of an absence of meaningful choice on the part of one of the parties [procedural unconscionability] together with contract terms which are unreasonably favorable to...