Gould v. Decolator

• Decision Date: 15 October 2014
• Docket Number: 2012-11011, Index No. 17209/11.
• Citation: Gould v. Decolator, 2014 NY Slip Op 6942, 121 A.D.3d 845, 994 N.Y.S.2d 368 (N.Y. App. Div. 2014)
• Parties: David S. GOULD, et al., appellants-respondents, v. Joseph DECOLATOR, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 845

994 N.Y.S.2d 368

2014 N.Y. Slip Op. 06942

David S. GOULD, et al., appellants-respondents

v.Joseph DECOLATOR, et al., respondents-appellants.

2012-11011, Index No. 17209/11.

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

Oct. 15, 2014.

Steven L. Salzman, P.C., New York, N.Y. (David S. Gould, pro se, and David S. Gould, P.C., pro se, of counsel), for appellants-respondents.

Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Janice J. DiGennaro of counsel), for respondents-appellants.

MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover legal fees, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered September 21, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the second and third causes of action, so much of the fourth cause of action as asserted claims which were not based upon services completed within six years prior to the commencement of the action, and the plaintiffs' demand for punitive damages, and the defendants cross-appeal from so much of the same order as denied that branch of their motion which was to dismiss the fourth cause of action insofar as asserted against the defendants Joseph Decolator, Neil Cohen, and Dominic DiPrisco.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants' motion which was to dismiss so much of the fourth cause of action as asserted claims which were not based upon services completed within six years prior to the commencement of the action, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the defendants' motion which was to dismiss the fourth cause of action insofar as asserted against the defendants Joseph Decolator, Neil Cohen, and Dominic DiPrisco, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiffs commenced this action against the defendant Decolator, Cohen & DiPrisco, LLP (hereinafter DCD), and its partners, the defendants Joseph Decolator, Neil Cohen, and Dominic DiPrisco, alleging, inter alia, that the plaintiff David S. Gould (hereinafter Gould) represented DCD in litigation against the law firms of Lysaght, Lysaght, and Kramer (herinafter LLK), and Trager, Cronin and Byczek (hereinafter TCB), from 1998 to 2007 and in a separate litigation designated the Storms case. The plaintiffs alleged that Gould was not paid for any of his work in the LLK/TCB litigation from 2002–2007, that he was not paid for any of his work on the Storms case, and that, in 2010, he discovered that DCD never intended to pay him for the work. The plaintiffs asserted, inter alia, causes of action sounding in fraud and quantum meruit. The Supreme Court granted, in part, the defendants' motion to dismiss the complaint.

CPLR 3211 provides, in relevant part, that a party may move for judgment dismissing one or more causes of action on the ground that “a defense is founded upon documentary evidence” (CPLR 3211[a][1] ), or “the cause of action may not be maintained because of ... [a] statute of limitations” (CPLR 3211[a] [5] ), or “the pleading fails to state a cause of action” (CPLR 3211[a][7] ).

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Nerey v. Greenpoint Mtge. Funding, Inc., 116 A.D.3d 1015, 985 N.Y.S.2d 252 ; Goldberg v. Rosenberg, 116 A.D.3d 919, 983 N.Y.S.2d 833 ).

To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Held v. Kaufman, 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430 ; Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 983 N.Y.S.2d 594 ).

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, a defendant must make a prima facie showing that the time in which to sue has expired (see Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 A.D.3d 780, 970 N.Y.S.2d 33 ; House of Spices [India], Inc. v. SMJ Servs., Inc., 103 A.D.3d 848, 960 N.Y.S.2d 443 ; Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731 ). To make this prima facie showing, the defendant must establish, inter alia, when the cause of action accrued (see Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731 ).

Here, the fourth cause of action alleged, inter alia, a claim for breach of an implied contract for legal services under a quantum meruit theory. A cause of action asserting a claim for payment of a sum of money allegedly owed pursuant to a contract accrues when the plaintiff possesses the legal right to demand payment (see Thompson v. Horwitz, 100 A.D.3d 864, 954 N.Y.S.2d 572 ; Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., 71 A.D.3d 843, 897 N.Y.S.2d 485 ; Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731 ). Here, the defendants failed to establish that the claims interposed as part of the plaintiffs' fourth cause of action accrued when Gould performed the services rendered during the time period 2002–2007. Accordingly, the defendants failed to establish their prima facie entitlement to relief pursuant to CPLR 3211(a)(5), and the Supreme Court erred in granting that branch of the defendants' motion which was to dismiss those claims interposed as part of the fourth cause of action which were not based upon services completed within six years prior to the commencement of this action (see Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731 ; see also Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc., 102 A.D.3d 770, 958 N.Y.S.2d 708 ).

The third cause of action alleged, inter alia, fraud and failure to pay a contingent fee relating to Gould's representation of DCD in the Storms case. The Supreme...