Kaufman v. Boies Schiller Flexner LLP

• Decision Date: 15 August 2022
• Docket Number: Index No. 154149/2018,Motion Seq. Nos. 10,11
• Citation: 2022 NY Slip Op 32743 (U)
• Parties: BETH COPLAN KAUFMAN, Plaintiff, v. BOIES SCHILLER FLEXNER LLP, DINA KAPLAN, BENDER AND KAPLAN PC, JOEL C. BENDER ESQ. PC, BENDER ROSENTHAL ISAACS &RICHTER LLP and BENDER AND ROSENTHAL LLP, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 32743(U)

BETH COPLAN KAUFMAN, Plaintiff,
v.
BOIES SCHILLER FLEXNER LLP, DINA KAPLAN, BENDER AND KAPLAN PC, JOEL C. BENDER ESQ. PC, BENDER ROSENTHAL ISAACS &RICHTER LLP and BENDER AND ROSENTHAL LLP, Defendants.

Index No. 154149/2018, Motion Seq. Nos. 10, 11

Supreme Court, New York County

August 15, 2022

Unpublished Opinion

MOTION DATE 02/04/2022

DECISION + ORDER ON MOTION

HON. JAMES E. D'AUGUSTE, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 010) 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198 were read on this motion to/for RENEWAL.

The following e-filed documents, listed by NYSCEF document number (Motion 011) 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211 were read on this motion to/for AMEND CAPTION/PLEADINGS.

Motion sequence nos. 010 and 011 are consolidated for disposition.

In motion sequence no. 010, plaintiff Beth Coplan Kaufman moves, pursuant to CPLR 2221 (e), for leave to renew the separate motions to dismiss brought by defendants Boies Schiller Flexner LLP (BSF), Bender and Kaplan P.C. (B&K), Dina Kaplan (Kaplan) and Joel C. Bender, Esq., P.C. (Bender) (B&K, Kaplan and Bender, collectively, Bender/Kaplan) and Bender & Rosenthal, LLP (B&R) and Bender Rosenthal Isaacs & Richter LLP (BRIR LLP) (together with B&K, BRIR).

In motion sequence no. 011, plaintiff moves, pursuant to CPLR 3211 (e), for leave to replead and file an amended complaint.

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BACKGROUND

The facts underlying this action are detailed in this Court's prior decision, with which familiarity is presumed. Briefly, this action stems from defendants' representation of plaintiff in a contested matrimonial action captioned Kaufman v Kaufman, Sup Ct, Westchester County, Index No. 4815/2012 (the Divorce Proceeding). After settlement of the custody and financial issues in the Divorce Proceeding, plaintiff commenced this action for breach of contract for alleged overbilling and for a Judiciary Law § 487 violation against defendants. Defendants moved to dismiss the complaint. In a decision and order dated April 22, 2021 (the April Order), this Court granted the motions and dismissed the complaint as against all defendants (NYSCEF Doc. Nos. 134-136). Defendants served and filed separate notices of entry the same day. By notice of motion dated May 24, 2021, plaintiff moved to reargue the April Order (NYSCEF Doc. No. 144). This Court denied the motion in a decision and order dated July 21, 2021 (NYSCEF Doc. No. 167). Plaintiff now moves to renew the prior motions to dismiss and moves separately for leave to replead and to amend the complaint. Defendants all oppose the motions.

DISCUSSION

I. The Motion to Renew

CPLR 2221 (e) (2) allows a party to renew a prior motion "upon new facts not offered on the prior motion that would change the prior determination" or "a change in the law that would change the prior determination." "Renewal is granted sparingly and is not a second chance freely given to parties who have failed to exercise due diligence in making their first factual presentation" (Wade v Giacobbe, 176 A.D.3d 641, 641 [1st Dept 2019], lv dismissed 35 N.Y.3d 937 [2020]; see also Foley v Roche, 68 A.D.2d 558, 568 [1st Dept 1979]). The Court, though, may relax these "rigorous requirements" and grant renewal "so as not to defeat substantive

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fairness'" (Rancho Santa Fe Assn. v Dolan-King, 36 A.D.3d 460, 461 [1st Dept 2007]). That said, the party seeking renewal must still proffer a reasonable excuse for failing to submit the evidence on the prior motion (Henry v Peguero, 72 A.D.3d 600, 602 [1st Dept 2010], appeal dismissed 15 N.Y.3d 820 [2010], reconsideration denied 16 N.Y.3d 726 [2011] [stating that even if the Court were to relax the requirements in CPLR 2221 [e] [3], it may do so "only where the movant presents a reasonable excuse for the failure to provide evidence in the first instance"]).

Here, none of the evidence presented, which consists of invoices, transcripts, reports and letters from the underlying Divorce Proceeding, is considered "new" for purposes of CPLR 2221 (see Omansky v 160 Chambers St. Owners, Inc., 155 A.D.3d 460, 462 [1st Dept 2017] [denying renewal where the "new" documents were available at the time the earlier motion was submitted]). Nevertheless, plaintiff urges the Court to relax its "rigorous requirements" and grant renewal "so as not to defeat substantive fairness'" (Rancho Santa Fe Assn., 36 A.D.3d at 461). Plaintiff offers three reasons why this "new" evidence was not produced on the prior motion. First, plaintiff argues that her prior counsel reasonably believed the factual allegations in the complaint sufficient to withstand dismissal. Second, plaintiff contends that, given the amount of evidence, it was reasonable for her prior counsel to believe that defendants did not meet their burden on dismissal. Last, plaintiff points to ill-timed withdrawals of prior counsel.

These proffered reasons are insufficient (see Menkes v Delikat, 148 A.D.3d 442, 442 [1st Dept 2017] [denying renewal because the plaintiff failed to explain why she failed to offer the facts known to her on the prior motion]; CPA Mut. Ins. Co. of Am. Risk Retention Group v Weiss & Co., 80 A.D.3d 431, 432 [1st Dept 2011] [denying a motion to renew because the "defendants' speculation as to what their prior attorneys 'apparently believed' did not excuse their failure to submit Weiss's affidavit when the original motion was heard"]). Current counsel's statements that

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prior counsel could not retrieve documents from the sealed Divorce Proceeding, could not digest the documents because of time constraints and an inability to hire a forensic specialist to examine plaintiffs own computer for relevant documents are not supported. In sum, plaintiff has not proffered reasonable justification for failing to produce the new evidence (see LFR Collections LLC v Blan Law Offs., 117 A.D.3d 486, 487 [1st Dept 2014]; Henry, 72 A.D.3d at 602-603). The motion to renew defendants' three prior motions to dismiss is denied.

IL The Motion for Leave to Replead and Amend

On a motion for leave to replead under CPLR 3211 (e), "the standard to be applied ... is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025" (Janssen v Incorporated Vil. of Rockville Ctr., 59 A.D.3d 15, 27 [2d Dept 2008]). Leave to amend under CPLR 3025 (b) "shall be freely given upon such terms as may be just." The "plaintiff does not need to establish the merit of the new claim but must simply show that it is not 'palpably insufficient' or 'clearly devoid of merit'" (Agbo v Constantin Assoc., LLP, - A.D.3d -, 2022 NY Slip Op 02861, *1 [1st Dept 2022] [citation omitted]). The party seeking leave to amend must submit evidence similar to that submitted on a summary judgment motion (see Velarde v City of New York, 149 A.D.3d 457, 457 [1st Dept 2017] [discussing CPLR 3025 (b)]; Hickey v National League of Professional Baseball Clubs, 169 A.D.2d 685, 685 [1st Dept 1991] [discussing CPLR 3211 (e)]), together with a proposed pleading (see HT Capital Advisors v Optical Resources Group, 276 A.D.2d 420, 420 [1st Dept 2000]). The party opposing the amendment bears a heavy burden of demonstrating that the "facts alleged and relied upon in the moving papers are obviously unreliable or insufficient to support the amendment" (Peach Parking Corp. v 346 W. 40th St., LLC, 42 A.D.3d 82, 86 [1st Dept 2007]). If the proposed

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amendment lacks merit, leave to amend should be denied (see Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 A.D.3d 404, 405 [1st Dept 2009], lv dismissed 12 N.Y.3d 880 [2009]).

Plaintiff argues that her new 69-page complaint, supported by nearly 900 pages of exhibits, remedies the pleading deficiencies identified in the April Order^[1] (NYSCEF Doc. No. 203). Plaintiff also seeks leave to amend the complaint to assert nine new causes of action.

Defendants argue the motion is procedurally improper because a complaint that has been dismissed cannot be amended (see Tanner v Stack, 176 A.D.3d 429, 429 [1st Dept 2019]). BSF and Bender/Kaplan also maintain that the motion is untimely because a party must request leave to replead before a complaint is dismissed (see Siegel & Connors, NY Prac § 275 [6th ed] [Note: online treatise]). Plaintiff, though, moves under CPLR 3211 (e) for leave to replead, and the dismissal of a complaint based on pleading defects is no impediment to a plaintiff later moving for leave to replead (see Guzman v Kordonsky, 177 A.D.3d 708, 709 [2d Dept 2019], affg 2016 NY Slip Op 32255[U] [Sup Ct. Kings County 2016] [granting leave to replead after a complaint had been dismissed]). Further, if leave is granted, the action shall be restored to the active calendar. In that event, the Court may grant leave to amend the complaint under CPLR 3025 because the complaint will not have been dismissed.

The Court now turns to whether plaintiff has cured the pleading deficiencies in the original complaint.

A. Breach of Contract against BSF, Kaplan, B&K and BRIR

Plaintiff has renumbered the breach of contract action for alleged overbilling from the first cause of action in the original complaint to the sixth cause of action in the PAC. Allegations

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of overbilling, padding of costs, and billing for unnecessary legal services can constitute a cause of action for breach of contract, provided the allegations do not directly challenge the quality of the attorney's work (Ullmann-Schneider v Lacher &Lovell-Taylor, P.C., 121 A.D.3d 415, 416 [1st Dept 2014]; O'Connor v Blodnick, Abramowitz and Blodnick, 295 A.D.2d 586, 587 [2d Dept 2002] [same]).

The PAC alleges that defendants routinely charged plaintiff for the presence of multiple attorneys at depositions, hearings and conferences even though not all the attorneys...