Notice of Motion (Seq. 001) 1 Affidavit in Opposition & Reply 2 Notice of Cross-Motion (Seq. 002) 3 Memorandum of Law in Oppostion 4 Upon the foregoing papers, the motion (Seq. #001) of the plaintiff, Marcus & Company, LLP, seeking an Order dismissing the first, second and third counterclaims of the defendant, Frank Pecora, a/k/a Francis Pecora, based upon failure to state a cause of action, along with all affirmative defenses; and granting summary judgment in favor of plaintiff’s first and second causes of action set forth in the Verified Complaint; and the cross-motion (Seq. #002) of defendant, Frank Pecora, a/k/a Francis Pecora, seeking an Order granting partial summary judgment as to liability in favor of defendant, on the counterclaims set forth in defendants Verified Answer, and setting the matter down for an inquest on damages, are determined as follows. In this action plaintiff, Marcus & Company, LLP, (hereinafter “Marcus LLP”) asserts two causes of action for breach of contract (first cause of action) and account stated (second cause of action) related to a written retainer agreement between the plaintiff, and defendant, Frank Pecora, a/k/a Francis Pecora (hereinafter “Pecora”) for the rendering of professional accounting services on behalf of Pecora in exchange for payment. The Verified Complaint alleges that defendant has failed to timely remit payment since on or about October 4, 2017, in contravention of the parties’ agreement, and that the amount of $56,081.25 remains due and owing, with interest from October 4, 2017. Defendant, asserts three counterclaims against plaintiff sounding in professional malpractice/negligence (first counterclaim), deceptive business practices in violation of General Business Law §349 (second counterclaim) and excessive billing (third counterclaim), alleging that there was no privity of contract between Marcus LLP and Pecora, that Marcus LLP provided invoices that Marcus’s billing practice was and is a consumer-oriented act or practice that was misleading in a material way, and that Marcus LLP improperly charged and took fees from Pecora. On its application to dismiss defendant’s counterclaims, plaintiff contends that defendant fails to state a cause of action for professional malpractice by virtue of its allegations of lack of privity between the parties. Plaintiff asserts that while defendant claims lack of privity in defense of its non-payment to plaintiff for services rendered, it cannot make a claim for professional malpractice for plaintiff’s accounting services without privity of contract. Plaintiff sets forth that defendant’s claim for deceptive business practices fails where such a claim does not apply to a private dispute between parties which are unique to them alone, and that defendant’s third counterclaim for excessive billing fails wherein defendant fails to set forth what was purportedly excessive about said fees. On its application for summary judgment, plaintiff contends that an agreement between the parties has been established based upon prior transactions between them and that said existing indebtedness of defendants is based upon an agreement that may be implied as well as expressly set forth in a written agreement, and defendant retained bills without objection for a reasonable period of time without objection. In support of its motion, plaintiff submits, inter alia, copies of the pleadings, the written agreement signed by the parties dated September 12, 2016, a letter, dated June 6, 2018, monthly invoices plaintiff sent to the defendant related to the balance in dispute, and the Affidavit of David Marcus, CPA on behalf of plaintiff. The Affidavit of David Marcus, CPA (hereinafter “D. Marcus”) states that he is the principal of Marcus LLP who specializes in investigative and forensic accounting services and was consulted by Pecora in and around September 2014 to provide services and provided defendant with a proposed retainer agreement setting forth the financial and billing terms which is unsigned. D. Marcus attests in the affidavit that on September 12, 2016, defendant retained the services of plaintiff pursuant to an executed retainer singed by the parties and as drafted and prepared by defendant’s counsel. D. Marcus attests that the written and executed retainer agreement is essentially an adjunct of the unsigned agreement provided to defendant in September 2014. In his affidavit, D. Marcus attests that he received an email in November 2017 terminating plaintiff’s services and thereafter plaintiff was re-hired in June 2018 as evidenced by letter dated June 6, 2018, and pursuant to the terms of the aforementioned written retainer agreement. D. Marcus states in his affidavit that plaintiff’s first and second causes of action set forth in the complaint relate to services provided by plaintiff to defendant in June, July and August of 2018, after plaintiff was re-hired, and that defendant breached the agreement by failing to timely remit payment on said invoices without objection upon receipt of same. In his affidavit, D. Marcus attests that, through a typographical error in transcribing hourly rates (partner time at a rate of $500 per hour instead of $450.00 per hour and staff time at a rate of $350.00 per hour instead of $300.00 per hour) from the unsigned agreement to the written executed agreement, a credit of $13,600.00 was remitted to defendant and accepted as credit, and is not part of the balance due and sought by plaintiff in the instant action In support of its opposition and cross-motion, defendant submits, inter alia, the Affidavit of Pecora. The Affidavit of Pecora states that he was never provided with notice of the unsigned agreement or apprised of its specific terms, contents or actual exitance at the time and relied upon prior counsel’s connection with plaintiff and prior counsel directed plaintiff in connection with its work without his knowledge or consent. Pecora attests that the unsigned agreement terms expired and ran it course if any such existed upon effectuation of the September 12, 2016 retainer agreement. Pecora states in the affidavit that he objected to the bills, statement and invoices that plaintiff alleges to have provided him. In opposition to plaintiff’s motion for dismissal of defendant’s cross-claims, defendant contends that while privity of contract may not exist with respect to the unsigned agreement, plaintiff provided services to Pecora that were negligent, and that plaintiff engaged in a pattern of grossly excessive and improper billing. Defendant asserts that its General Business Law claims are cognizable as applicable to other similarly situated consumers, and that dismissal of its third counterclaim is not warranted wherein it identifies plaintiff’s breach of the written retainer agreement dated September 12, 2016. With regard to plaintiff’s motion for summary judgment of the first and second causes of action in the verified compliant, defendant opposes, contending that issues of material fact exist related to the unsigned agreement’s applicability asserting that Pecora did not intend to be bound the unsigned agreement and consistently objected to the bills tendered to him by plaintiff, as well as with regard to plaintiff’s account stated claim whereby defendant contends there is lack of corroboration of the billing invoices and statements on the part of plaintiff for which the instant motion is premature for lack of discovery. On its motion for summary judgment on its cross-claims, defendant contends that based upon the failure of plaintiff to provide any documentary evidence supporting its contentions regarding the unsigned agreement and its applicability to defendant, and that the billing invoices provided by plaintiff were well-documented and accepted by Pecora, an inquest on damages must be granted. Seq. #001 “When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must 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…If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one…[The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 682-683, 941 N.Y.S.2d 675 [citations and internal quotation marks omitted]). Thaw v. North Shore University Hosp. 129 A.D.3d 937, 12 N.Y.S.2d 152 [2d Dept. 2015]. Defendant’s first counter-claim for professional malpractice/negligence “A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury” Bruno v. Trus Joist a Weyerhaeuser Business, 87 A.D.3d 670929 N.Y.S.2d 163 (2d dept. 2011), citations omitted. While the allegations contained in defendant’s counter-claim do not allege plaintiff’s departure from accepted standards of practice in performance of their professional services on behalf of defendant, but seek only malpractice based upon excessive billing, defendant fails to state a cause of action for professional malpractice/negligence as and against plaintiff. Accordingly, plaintiff’s motion for dismissal of defendant’s third counter-claim is granted. Defendant’s second counter-claim for deceptive business pursuant to GBL §349 To state a claim for relief under GBL §349, a plaintiff must allege “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act” See, Stutman v. Chemical Bank, 95 NY2d 24, 731 N.E.2d 608, 709 N.Y.S.2d 892 [2000]. Contrary to defendant’s contentions, its GBL §349 claim is not based on a transaction that affects the consuming public at large, but rather the breach of a written and executed retainer agreement unique to the parties. In as much as a private contract is in dispute, defendant’s claim does not fall within the scope of GBL §349. See, Canario v. Gunn, 300 A.D.2d 332, 751 N.Y.S.2d 310 (2d Dept. 2002). Accordingly, plaintiff’s motion to dismiss defendant’s second counter-claim is granted. Defendant’s third counter-claim for excessive billing counter-claim This Court’s reading of the allegations contained in defendant’s third counter-claim reveals a breach of contract claim based upon conclusory allegations of defendant’s overpayment of excessive inflated invoices and billing presented by plaintiff pursuant to the written and executed retainer agreement. Accordingly, plaintiff’s motion to dismiss the third counter-claim is granted. Plaintiff and Defendant’s Motions for Summary Judgment The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach. 143 Bergen Street, LLC v. Ruderman, 144 A.D.3d 1002, 42 N.Y.S.3d 252 (2d Dept.), citations omitted. ‘”An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due” (Jim-Mar Corp. v. Aquatic Constr., 195 A.D.2d 868, 869, 600 N.Y.S.2d 790; see M & A Constr. Corp. v. McTague, 21 A.D.3d 610, 800 N.Y.S.2d 235). “The agreement may be express or…implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances” (Jim-Mar Corp. v. Aquatic Constr., 195 A.D.2d at 869, 600 N.Y.S.2d 790).’ Fleetwood Agency, Inv., v. Verde Elec. Corp. 85 A.D.3d 850, 925 N.Y.S.2d 576 (2d Dept. 2011) The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its causes of action for breach of contract and account stated, by tendering admissible evidence that it provided services to the defendant, for which the defendant did not pay. Plaintiff provides evidence in admissible form as to the written retainer agreement signed by the defendant, the invoices and billing provided to defendant which detailed the total due and owing and services performed and that same was accepted by defendant without objection and without payment thereof, based upon the obligations set forth in the written retainer agreement between the parties. Contrary to defendant’s contentions that it opposed the invoices and billing provided to defendant by plaintiff, other than defendant’s conclusory statements in its affidavit of having objected to said invoices and bills, defendant provides no evidence to raise any issue of material fact without specifying the manner, method, or means by which such objections were made. Defendant’s contentions of lack of privity of contract are unpersuasive given the execution by defendant of the written and executed retainer agreement and the payment of services without objection, prior to the instant dispute. Accordingly, defendant fails to rebut plaintiff’s prima facie proof of defendant’s breach of contract and account claims, and plaintiff’s motion for summary judgment is granted. Based upon the foregoing, plaintiff’s motion (Seq. #001) for dismissal of defendant’s counter-claims and seeking summary judgment on its first and second causes of action is granted; and defendant’s cross-motion (Seq. #002) seeking summary judgment on its counter-claims is denied. This constitutes the Decision and Order of this Court. Any request for relief not expressly granted herein is denied. Dated: December 6, 2019
