Dubon v. Drexel

• Decision Date: 30 June 2021
• Docket Number: Index No. 7854/16,2017–11578
• Citation: Dubon v. Drexel, 195 A.D.3d 991, 151 N.Y.S.3d 126 (N.Y. App. Div. 2021)
• Parties: William DUBON, appellant, v. Allen DREXEL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 991

151 N.Y.S.3d 126

William DUBON, appellant,

v.Allen DREXEL, et al., respondents.

2017–11578

Index No. 7854/16

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

Submitted—May 24, 2021

June 30, 2021

Catafago Fini LLP, New York, N.Y. (Jacques Catafago of counsel), for appellant.

Voute, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Howard S. Jacobowitz and Evan J. Lyman of counsel), for respondents.

HECTOR D. LASALLE, P.J., MARK C. DILLON, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract and fraudulent inducement, the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered September 22, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of the first breach of contract cause of action as alleged that the defendants overbilled and charged the plaintiff for unnecessary legal services, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff hired the defendants, Allen Drexel and Drexel, LLC (hereinafter together Drexel), to represent him in a divorce action. The plaintiff and Drexel entered into a retainer agreement (hereinafter the retainer), which set forth the terms of Drexel's representation of the plaintiff. Pursuant to the retainer, Drexel, among other things, would provide the plaintiff with itemized billing statements at least every 60 days. The retainer further provided that any modifications to the agreement, fee estimates, budgets for work to be done for the plaintiff, or adjustments to Drexel's bills "will be valid only if in writing and signed by [both parties]" (emphasis in original).

In November 2016, the plaintiff commenced the instant action against Drexel, in which he asserted two causes of action alleging breach of contract and one cause of action alleging fraudulent inducement. The first breach of contract cause of action alleged, among other things, that Drexel breached a provision of the retainer pursuant to which Drexel agreed to defend the plaintiff in his divorce action and "to provide all necessary legal services for an estimated cost of ‘no more than $100,000.’ " The second breach of contract cause of action alleged that Drexel failed to provide invoices to the plaintiff as required by the retainer. The fraudulent inducement cause of action alleged that the plaintiff was fraudulently induced into entering into the retainer by relying on Drexel's representations as to the cost of its legal services.

Drexel moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff submitted an affidavit in opposition to Drexel's motion to dismiss. The Supreme Court granted Drexel's motion, finding that Drexel "conclusively established that there was no retainer stating that [Drexel] would not bill for more than $100,000" and that the second breach of contract claim failed to state a cause of action. The plaintiff appeals.

"To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" ( Palero Food Corp. v. Zucker, 186 A.D.3d 493, 495, 129 N.Y.S.3d 104 ). "Contracts are among the documents that qualify as documentary evidence" ( Hohwald v. Farm Family Cas. Ins. Co., 155 A.D.3d 1009, 1010, 66 N.Y.S.3d 316 ).

"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Tsinias Enters. Ltd. v. Taza Grocery, Inc., 172 A.D.3d 1271, 1272, 101 N.Y.S.3d 138 [internal quotation marks omitted]). "However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" ( Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1021–1022, 843 N.Y.S.2d 104 ). "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" ( Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted]). Where "evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Palero Food Corp. v. Zucker, 186 A.D.3d at 495, 129 N.Y.S.3d 104 [internal quotation marks omitted]).

The Supreme Court properly granted that branch of Drexel's motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel breached the retainer by billing the plaintiff for legal services in excess of $100,000 (see Palero Food Corp. v. Zucker, 186 A.D.3d at 496, 129 N.Y.S.3d 104 ). Drexel demonstrated that such claim was conclusively disposed of by the retainer itself, which did not contain a provision stating that the plaintiff's legal costs would not exceed $100,000, and which...