Morrone v. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carrone, LLP

Decision Date15 August 2022
Docket Number21-CV-1205 (WFK) (ST)
CourtU.S. District Court — Eastern District of New York

WILLIAM F. KUNTZ, II, United States District Judge:

Plaintiff Andrea Morrone (Plaintiff') brings this action against her former attorneys Defendants Abrams, Fensterman Fensterman, Eisman, Formato, Ferrara, Wolf & Carrone LLP and Samuel J. Ferrara, Esq. (together Defendants) for their alleged malpractice in her divorce proceedings in New York state court. Presently before the Court is Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and Plaintiffs cross-motion to strike the statements and exhibits attached to a declaration submitted alongside Defendants' motion papers. For the reasons below, Defendants' motion is granted in part and denied in part, and Plaintiffs' motion to strike is granted.


The following facts, taken from the Amended Complaint, are treated as true for the purposes of this decision.

On June 10, 2011, Plaintiff signed a retainer agreement for Defendants “to represent [her] in connection with [her] matrimonial difficulties.” Am. Compl (“AC”) ¶ 8, ECF No. 5; Retainer Agmt., Ex. A to AC, ECF No. 5-1, Ultimately, her difficulties resulted in a divorce action in New York Supreme Court, Nassau County: Iannucci v. lannucci, Index No. 0201340/2009. AC ¶ 9. During the proceedings, the state court appointed a neutral forensic expert to examine the marital property. Id. ¶ 49. Among other findings, the court's expert deemed Plaintiffs ex-husband's bakery to have “no value,” despite it being in business for over twenty years. Id. ¶ 50. Plaintiff, through Defendants, retained her own expert, who prepared a report which in part rebutted the court-appointed expert's valuation of the bakery. Id. ¶ 51.

Trial commenced from December 12, 2013 to January 22, 2016. Decision and Order After Trial dated December 12, 2016 (Dec. 12, 2016 Decision), Ex. D to Deci, of Adam Nicolazzo (“Nicolazzo Declaration” or Nicolazzo Deci.”), ECF No. 15-4.[1] Although Plaintiff s expert “was ready, willing and able to testify that millions of dollars were unaccounted for by” the court-appointed expert, Defendants never put [Plaintiffs expert] on the stand.” AC ¶ 51. In post-trial briefing, Plaintiff, through Defendants, made a written application for attorney's fees in the amount of $675,184.09. Dec. 12, 2016 Decision at 45-46. According to the Amended Complaint, however, the ex-husband calculated that Defendants actually “claimed $830,184.00” in attorney's fees. AC ¶ 15. Upon review of the ex-husband's calculation, Plaintiff allegedly learned that Defendants “engaged in a pattern, custom, and practice of inefficient, ineffective, and wasteful billing” to inflate their legal fees. Id. ¶¶ 16-17, 36-42, 44.

The state court issued its decision on December 12, 2016. See Dec. 12, 2016 Decision. It held in part:

Notwithstanding the wife's claim that [the court's expert's] appraisal was undervalued and based upon assumptions and suppositions caused by the husband's failure to provide documentation, data and testimony, [Plaintiff] did not offer a rebuttal witness to substantiate her claims.

Id. at 25, see also id. at 30 (“The court notes that although the wife disputes the valuations provided by the expert, no counter-report or rebuttal testimony was offered to refute the findings of [the court-appointed expert].”). The state court thus adopted its appointed expert's valuations, including the bakery's zero-dollar value. Id. The state court also granted Plaintiff $275,000.00 in attorney's fees. Id. at 48.

Defendants allegedly assured Plaintiff they would appeal the December 12,2016 Decision. AC ¶ 29. They also negotiated a “settlement of the legal fees owed” by Plaintiff, capping her bill at $100,000.00. Ltr. dated Sept. 17, 2017, Ex. F to AC, ECF No. 5-6. The agreement explained that [a]ny additional fees [Defendants were] able to collect from [the ex-husband would] be applied against those fees [Defendants were] not collecting from” Plaintiff. Id. It also confirmed the parties' “discussions regarding any potential consequences that” certain actions “may have on . [the parties'] arguments on appeal.” Id. After a year, and despite billing “tens of thousands of dollars,” Defendants “conceded they were not equipped to handle an appeal” and recommended Plaintiff contact an appellate attorney by the name of G. Koopersmith.” AC ¶¶ 17, 25, 28, 3334. According to Plaintiff, however, Defendants never intended to appeal and instead “wanted to discard their client and their responsibilities.” Id. Plaintiff declined Koopersmith's services after he allegedly priced his legal fees at $150,000.00 - $75,000.00 of which would be due upfront. Id. Defendants were substituted out as Plaintiffs counsel on March 27, 2018. Id. ¶ 14.

On April 18, 2021, Plaintiff commenced this action against Defendants, alleging five causes of action. Plaintiff asserts a legal malpractice claim arising out of Defendants' overbilling and failure to rebut the court-appointed expert. She further asserts breach of fiduciary duty, fraud, and breach of contract claims arising from the same facts as well as Defendants' “feigning” an appeal. Lastly, Plaintiff brings a cause of action for disgorgement. Defendants moved to dismiss the Amended Complaint on October 18, 2021. Notice of Mot. to Dismiss, ECF No. 14. Plaintiff then moved to strike materials presented in a declaration submitted with Defendants' opening motion papers. Cross Mot. to Strike, ECF No. 17.


The Court first addresses Plaintiffs motion to strike and then proceeds to Defendants' motion to dismiss.

I. Motion to Strike

The Court need not belabor its analysis on the motion to strike because it declines to consider any material included in the Nicolazzo Declaration, except for those that were attached as exhibits to the Amended Complaint. See Chambers v. Time Warner, 282 F.3d 147,152 (2d Cir. 2002). Specifically, the Court considers the parties' retainer agreement (see Ex. A to AC and Ex. B to Nicolazzo Deci., ECF No. 15-2) and the September 27, 2017 letter (see Ex. F to AC and Ex. F to Nicolazzo Deci., ECF No. 15-6), which are attached, in their entirety, to the Amended Complaint.

The Court also considers the full text of the December 12, 2016 Decision, which the Amended Complaint quotes and attaches in part. E.g., AC ¶ 53; see also supra Footnote 1. A party partially quoting or attaching documents integral to a complaint “entitle[s] [a court] to consider the full text of those documents in ruling on [a] motion to dismiss.” Sari Leandro Emergency Med, Grp. Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 809 (2d Cir. 1996); McGown v. City of New York, No. 09 Civ. 8646 (CM), 2010 WL 3911458, at *4 (S.D.N.Y. Sept. 9, 2010) (McMahon, J.) (“In deciding a motion to dismiss, [a court] may consider the full text of documents that are quoted in or attached to the complaint”) (citing cases).

Because the Court declines to consider any other documents, the remainder of Plaintiff s motion to strike is granted.

II. Motion to Dismiss

Sitting in diversity, this Court applies the choice-of-law principles of the forum state. AEI Life LLC v. Lincoln Benefit Co., 892 F.3d 126,132 (2d Cir. 2018). The parties briefed the merits under New York State law; their consent thus governs the choice of law analysis. Texaco A/S (Denmark) v. Com. Ins. Co. of Newark, NJ, 160 F.3d 124, 128 (2d Cir. 1998) (quoting Am. Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997)).

A. Legal Standard

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should “draw all reasonable inferences in the Plaintiffs favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Wilson v. Kellogg Co., 628 Fed, App'x 59,60 (2d Cir. 2016) (alterations omitted) (summary order) (quoting Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)).

The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 7172 (2d Cir. 2009). First, “threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679, A plaintiff must provide facts sufficient to allow defendants to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555.

Second only complaints that state a “plausible claim for relief' can survive a motion to dismiss. Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,' but asks for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line' between possibility and plausibility of ‘entitlement to relief.' Id. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief is “a context specific task that requires the reviewing court...

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