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Bainton McCarthy, LLC v. CBC Capital Ventures, Inc.

Other Lower Courts

January 15, 2008

Bainton McCarthy, LLC, Plaintiff,
v.
CBC Capital Ventures, Inc., CBC CAPITAL VENTURES LLC, EKN FINANCIAL SERVICES, LOUIS OTTIMO, ANTHONY OTTIMO, SR., and RICHARD OTTIMO, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

J. Joseph Bainton, Esq. Bainton McCarthy, LLC Pro Se Plaintiff

Robert M. Brusky, Esq. Attorney for Defendants

OPINION

Daniel Palmieri, J.

The motion of defendants to dismiss the complaint for failure to state a cause of action is granted and the complaint is dismissed. CPLR 3211(a)(7).

The complaint alleges in substance that plaintiff is a law firm organized as a limited liability company under the State of New York, with an office in New York, that the defendants engaged plaintiff pursuant to a written engagement letter to provide legal services, and that the individual defendants guaranteed payment of the fees owed by the two CBC defendants.

Defendants move to dismiss on the ground that the complaint fails to state a cause of action because it does not allege compliance with 22NYCRR Part 137 137.6, Fee Dispute Resolution Program, Arbitration Procedure and 22 NYCRR Part 1215, 1215.1 entitled Written Letter of Engagement.

In response plaintiff submits an affidavit of an attorney admitted to and practicing law in the State of Connecticut who purports to be "counsel to plaintiff" resident in its Connecticut office and an unsigned engagement letter " with defendant CBC Capital Ventures, Inc. The affidavit states that the retainer was signed in the attorney's presence but it does not inform as to the state in which it was signed ( the affidavit recites the offices of defendant EKN as the signing venue and the complaint [par.4] recites a Nassau county address for EKN) or why a signed copy has not been submitted. The affidavit also recites that although engaged to provide services to defendant CBC Capital Ventures, Inc., the other defendants "provided written assurances via several writings that the individual defendants would guarantee payment... ."

As this motion is made pursuant to CPLR 3211(a)(7) prior to answer, the Court must look within the four corners of the complaint, and if any cause of action is discernable there from the motion should fail. See, e.g., Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 (1977). In making this determination, the factual allegations asserted in the pleading are to be accepted as true, and the plaintiff is to be accorded the benefit of every favorable inference that may be drawn there from. Leon v Martinez, 84 N.Y.2d 83 (1994); Konidaris v Aeneas Capital Mgt., LP, 8 A.D.3d 244 (2d Dept. 2004).

A court may consider evidence outside a pleading to test if a plaintiff has a cause of action including affidavits received for the limited purpose of remedying defects. Morris v. Morris, 306 A.D.2d 449 (2d Dept. 2003); Davis v. CCF Capital Corp., 277 A.D.2d 342 (2d Dept. 2000).

An attorney who brings an action to recover a fee must allege in the complaint that the client received notice of the right to pursue arbitration and mediation and did not file a timely request there for or that the dispute is not otherwise covered by 22NYCRR Part 137 137.1. See 137 .6(b) complaint must allege receipt of notice or that dispute is not covered by Part 137. Borah, Goldstein, Altschuler, Schwartz Nahins, P.C. v. Lubnitzki,13 Misc.3d 823 (Civ. ...


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