The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 were read on this motion by defendant to DISMISS CERTAIN CLAIMS IN THE COMPLAINT. DECISION ORDER ON MOTION Upon the foregoing documents, and after oral argument on the record held November 18, 2024, defendant’s motion to dismiss certain claims in the complaint is denied to the extent set forth in the following memorandum. Background: The complaint alleges that the plaintiff law firm — Davidoff Hutcher & Citron LLP (“DHC”) — furnished legal services to defendant on the force of a retainer agreement executed on November 6, 2019, by defendant and plaintiff Robert J. Costello who, at some time relevant to the complaint, was a member of DHC (see, Complaint
9-10). There is ambiguity as to the temporal span of Mr. Costello’s membership in DHC vis-à-vis the total span of time during which defendant was represented by Mr. Costello pursuant to the retainer agreement. To illustrate the ambiguity, the complaint specifies that “[a]lthough the Retainer Agreement was with Costello, the work performed was completed while Costello was a partner at DHC” (id. [emphasis added]).1 The complaint’s toggling between “work performed” and work “completed” implies that defendant’s initial retention of Mr. Costello preceded the latter’s membership in DHC but continued during the span of said membership. By contrast, Mr. Costello’s affidavit, submitted in opposition to defendant’s instant motion to dismiss (NYSCEF Doc. No. 9), seems to state that the execution of the retainer agreement occurred while Mr. Costello was a member of DHC (see, id., 2 ["Throughout the Defendant's representation, I was a partner at DHC…."]). Either way, though, and regardless of the aforesaid ambiguity, plaintiffs seem to be acknowledging that the only retainer agreement actually signed by defendant is one that expressly identifies only Mr. Costello as counsel, with no express indication on the face of the agreement, or within its substance, that DHC is a party to it. As defendant puts it: “In fact, the bizarre set of circumstances as to why DHC, a law firm, would have Mr. Costello enter into an agreement with Defendant, instead of the law firm, is left unexplained and unalleged” (NYSCEF Doc. No. 7 at 6). The complaint goes on to allege that, pursuant to said retainer, “Plaintiffs performed various legal services for Defendant, at his request, in a competent and professional manner,” to the extent of $1,574,196.10 in earned legal fees (Complaint
