OPINION & ORDER This case, now before the Court on combined motions in limine and for summary judgment, involves breach of contract and related claims by a convicted defendant asserting that counsel in his criminal appeal misapplied $100,000 of a retainer fee belonging to the defendant. On August 4, 2014, plaintiff Luis Felipe Moreno-Godoy, proceeding pro se, filed a civil complaint, Dkt. 1 (“Compl.”), bringing claims against both the counsel that represented him, and an attorney who attempted unsuccessfully to represent him, in his criminal appeal. His core claim is that he and his co-defendant/co-appellant paid a $100,000 retainer to defendant Steven R. Kartagener, Esq., to join their existing appellate team, but that, after Kartagener determined that he could not represent them due to a failure to obtain a necessary security clearance, Kartagener did not return the retainer. Instead, Moreno-Godoy alleges, Kartagener furnished the $100,000 to another of Moreno-Godoy’s appellate attorneys, Roger L. Stavis, Esq., of the law firm Gallet Dreyer & Berkey, LLP (“GDB”), without Moreno-Godoy’s consent.1 Moreno-Godoy further alleges that defendant GDB kept the money despite his written demands that it be returned.A central issue is whether the $100,000, which was paid to Kartagener not by Moreno-Godoy but by the overseas wife of his co-defendant and co-appellant, belonged to Moreno-Godoy, so as to enable him to sue for misapplication of the money. Currently pending are defendants’ (1) motions in limine, arguing that non-party witness Raghdaa Habbal is precluded from testifying that Moreno-Godoy in fact owned the disputed $100,000; and (2) motions for summary judgment, arguing that, if Habbal’s statements regarding the ownership of the $100,000 are excluded as inadmissible, Moreno-Godoy’s remaining claims must be dismissed because there is no competent evidence that Moreno-Godoy owed that sum. For the reasons that follow, the Court grants defendants’ motions in limine and motions for summary judgment and dismisses Moreno-Godoy’s remaining claims.I. Background2A. Factual BackgroundThe Court assumes familiarity with the facts of this case, which are recounted in detail in the Court’s September 30, 2015 Opinion & Order, see Dkt. 49, Moreno-Godoy v. Gallet Dreyer & Berkey, LLP, 2015 WL 5737565 (S.D.N.Y. Sept. 30, 2015) (“Moreno-Godoy I”), and its June 29, 2017 Opinion & Order, see Dkt. 131, Moreno-Godoy v. Gallet Dreyer & Berkey, LLP, 2017 WL 2829815 (S.D.N.Y. June 29, 2017) (“Moreno-Godoy II”). The Court sets out here only those facts relevant to the instant dispute.In 2008, Moreno-Godoy and co-defendant Monzer Al Kassar were convicted in this District of weapons trafficking charges. See Moreno-Godoy II, 2017 WL 2829815, at *2. After their convictions, Moreno-Godoy and Al Kassar hired Stavis and non-party Ira Lee Sorkin, Esq., of the law firm Dickstein Shapiro, LLP. Id. Moreno-Godoy and Al Kassar signed a “letter of agreement” dated December 9, 2008, on GDB letterhead, stating that GDB would represent them for a “flat fee of $125,000,” which “will cover all post-verdict legal services provided in connection with this matter, including, but not limited to: sentencing, appeal of the conviction and sentence to the United States Court of Appeals for the Second Circuit, and petition for writ of certiorari to the United States Supreme Court.” Id. The agreement was signed by Stavis, Moreno-Godoy, and Al Kassar. Id. Shortly thereafter, Moreno-Godoy and Al Kassar retained Kartagener to join their appellate team. Id. Moreno-Godoy, Al Kassar, and Kartagener signed a “letter of agreement,” dated February 11, 2009, stating that Kartagener would be paid a flat fee of $100,000 to “represent both Plaintiff and Al Kassar in all post-verdict legal proceedings.” Id. On February 18, 2009, Al Kassar’s wife, Raghdaa Habbal, transferred $100,000 from Bank Audi, located in Beirut, Lebanon, to Kartagener on Moreno-Godoy’s behalf. Id.In January 2010, Moreno-Godoy learned that Kartagener would not be able to participate in the appeal because he had failed to obtain a security clearance to review classified material relevant to the case. Id. Moreno-Godoy, Al Kassar, Kartagener, and Stavis engaged in extended communications regarding the appellate representation and the $100,000 retainer. Id. The Court has previously reviewed this correspondence in detail. See id. at *2-3. As relevant here, on February 7, 2010, Moreno-Godoy wrote to Kartagener, copying Stavis and A1 Kassar, stating that under the terms of the February 11, 2009 retainer letter, Kartagener had already agreed to represent him on appeal, and, in exchange, Moreno-Godoy had agreed to deposit, and had deposited, a $100,000 retainer with GDB. Id. at *3. Moreno-Godoy further stated that because Kartagener had been unable to obtain the necessary security clearance, “I respectfully request that you return my retainer, in full to the third party who sent it to you.… If for any reason(s) you disagree with my request, I ask that you state your reason(s) in writing.” Id.On February 23, 2017, Stavis wrote to Moreno-Godoy, referencing Moreno-Godoy’s request that the retainer be returned to “the ‘person who provided it’” and stating, “I have consulted with the person and he is very happy and satisfied that I am representing you. He already knows that Mr. Kartagener has refunded the retainer to me and I am using it to represent you on this appeal.” Id.On September 21, 2011, the Second Circuit affirmed Moreno-Godoy’s and A1 Kassar’s convictions. On December 21, 2011, Stavis filed a petition for certiorari. On May 14, 2012, the Supreme Court denied the petition. See 566 U.S. 986 (2012).B. History of this LitigationOn August 4, 2014, Moreno-Godoy, then pro se, filed the original Complaint, asserting claims of breach of contract, breach of fiduciary duty, and malpractice against Stavis, GDB, and Kartagener. Dkt. 1 (“Compl.”)
