The opinion of the court was delivered by: Korman, J.
Plaintiff David Goldstein alleges five state law claims for relief against his former attorney, defendant Allen Gold, stemming from defendant's representation of plaintiff in insurance litigation against Mass Mutual Life Insurance Company ("Mass Mutual"). Defendant counterclaims for attorney's fees allegedly owed to him by plaintiff. Defendant now moves for summary judgment on all of plaintiff's claims and the parties cross-move for summary judgment on defendant's counterclaim. Jurisdiction is proper pursuant to 28 U.S.C. § 1332(a).
In February 1993, plaintiff was injured in an automobile accident, which rendered him incapable of continuing his work as a chiropractor. (Niehaus Aff., Ex. A, Compl. ¶¶ 9, 10.) In August 1994, plaintiff's orthopedist placed him on total disability and, by the end of 1994, Mass Mutual, plaintiff's disability insurance carrier, began to pay plaintiff a monthly disability stipend. (Id. ¶ 10.) As a condition of receiving disbursements under the disability insurance policy, Mass Mutual required plaintiff to undergo monthly medical checkups. (Id. ¶ 12.) In 1998, an independent physician appointed by Mass Mutual declared that plaintiff was "totally disabled from the practice of chiropractic." (Compl. ¶ 11.) Mass Mutual, however, continued to require plaintiff to submit "doctor-certified" monthly progress reports and delayed disability payments because of plaintiff's refusal to submit to monthly checkups. (Compl. ¶ 13.) Plaintiff subsequently developed Generalized Anxiety Disorder, allegedly rooted in his fear that Mass Mutual would refuse to disburse payments under the insurance policy as a result of the monthly checkups. (Compl. ¶ 14.)
In July 1999, plaintiff retained defendant to represent him in an action against Mass Mutual in New York State Supreme Court ("1999 action"). (See Def.'s Aff., Ex. A, Retainer Agreement, dated July 20, 2009.) Plaintiff sought a declaratory judgment that the requirement in his disability policy that he submit monthly reports to Mass Mutual be deemed waived by Mass Mutual. (Pl.'s Aff., Ex. A, Goldstein v. Mass. Mutual Ins. Co., No. 113804/99, Decision and Order (N.Y. Sup. Ct. May 3, 2000).) The Supreme Court dismissed the complaint, holding that plaintiff's injuries did not meet the "presumptively disabled" definition contained in the disability insurance policy, but noted that "defendant [Mass Mutual] has agreed to accept yearly physician's reports rather than monthly reports at this time." (Id. at 2.)
Despite this alleged agreement, Mass Mutual continued to require plaintiff to submit to "frequent" physician's examinations and "threaten[ed] to cut off [his] disability payments." (Pl.'s Aff. ¶ 5.) Thus, in the "fall or early winter of 2000," plaintiff alleges that he "instructed [defendant] Mr. Gold to again sue MassMutual both to force MassMutual to abide by its agreement to seek only annual medical 'updates,' and for damages relating to the mental trauma MassMutual was knowingly inflicting upon [plaintiff] through its abusive harassment." (Id. ¶ 7.) Plaintiff further alleges that, in early 2001, defendant informed him that he filed a complaint against Mass Mutual ("2001 action"), "seeking the relief [plaintiff] had requested." (Id. ¶ 8). This was not true -- defendant never filed the 2001 action. (Id. ¶ 9.) Nevertheless, from 2001 to 2005, in response to plaintiff's repeated inquires as to the status of the 2001 action (id. ¶¶ 10-12), defendant led plaintiff to believe that he was vigorously litigating the 2001 action against Mass Mutual (id. ¶¶ 8, 13-22).
Although defendant denies telling plaintiff that he filed a lawsuit in 2001 (Niehaus Aff., Ex. B, Answer ¶ 22), the record does not support this assertion. Indeed, between November 2, 2001, and August 6, 2006, plaintiff sent defendant at least twenty-three emails and letters that referenced the 2001 action. (See Pl.'s Aff. Exs. B--U, W, Z, AA.) It is clear from this correspondence that plaintiff believed defendant had not simply filed the 2001 action but was aggressively litigating it on his behalf. (See, e.g., id., Ex. E, letter, dated February 24, 2002 ("What is your legal opinion on how [Mass Mutual's] response to your serving them with the order to show cause will impact my '3 part lawsuit' commenced against them?"); id., Ex. F, letter, dated March 27, 2002 ("is there any additional information on the status (date) for the 'Preliminary Conference' for the 3-part lawsuit that you commenced on my behalf?"); id., Ex. N, letter, dated December 27, 2003 ("thank god the court has ordered a January 20, 2004 status conference; with the intent being; as I understand it; to get this case on a tight schedule in order to bring it to completion.").) Plaintiff alleges that "at no point did Mr. Gold ever state that no lawsuit had been filed" (Pl.'s Aff. ¶ 26), nor did he "ever question what lawsuit [plaintiff] was referring to in any of the above correspondence" (Pl.'s Aff. ¶ 27). On the contrary, plaintiff "specifically recall[s defendant] informing [him] that he had engaged in extensive discovery with MassMutual" (id. ¶ 16), "that MassMutual was engaged in delaying tactics to slow the case down" (id. ¶ 17), "that he had responded to numerous sets of interrogatories propounded by MassMutual" (id. ¶ 18), "that a 'Preliminary Conference' had been scheduled... for July 23, 2002" (id. ¶ 20), and "that a 'Status Conference' had been scheduled... for January 20, 2004" (id. ¶ 21).
Moreover, defendant billed plaintiff for time he spent reading plaintiff's correspondence and speaking with plaintiff regarding his inquires as to the 2001 action. For example, defendant's time sheets (Constantine Aff., Ex. D) reflect that, on November 5, 2001, defendant spoke with plaintiff regarding plaintiff's letter, dated November 2, 2001, in which plaintiff wrote that "[he] would like to discuss the status of my case since you have filed those 3 new lawsuits." (Pl.'s Aff., Ex. B.) Similarly, defendant's time sheets (Constantine Aff., Ex. D) reflect that on December 24, 2001, defendant reviewed an email he received from plaintiff in which plaintiff wrote that "[i]t would be a huge help to my health and well being to know if Mass. Mutual has responded or not. I believe they had to December 15, 2001.... I would also like to request that I review all of their Discovery requests" (Pl.'s Aff. Ex. C). Defendant's time sheets are replete with similar entries. More significantly, there is no evidence in the record that defendant ever informed plaintiff that there were no "new lawsuits" filed against Mass Mutual in 2001.
Under the parties' Retainer Agreement, plaintiff agreed to pay defendant an initial retainer payment of $2,500, and once "the initial retainer is depleted or comes within $500.00 of depletion as a result of hours charged, [plaintiff] agree[d] to replenish his... account by payment of an interim retainer in the amount of $2,500.00." (Retainer Agreement.) The interim retainer was to be replenished once depleted or within $500 of depletion. (Id.) A February 20, 2002 letter from plaintiff to defendant makes clear that plaintiff "replenished" the retainer based on his belief that defendant was working on the 2001 action.
After Mass. Mutual responded to the suit, I had asked you about the status of my retainer. You had explained to me that they would be sending you a list of discovery issues and when you saw how much work would be involved you would ask for a replenishment at that time. Being that they have delayed sending you any discovery issues, in addition to apparently breaching my contract I wanted to know if now would be a good time to mail you another check. When we last spoke last week you had said you would need additional funds soon.
(Pl.'s Aff. Ex. D.) Defendant's billing time sheets indicate that, the next day, he spoke to plaintiff regarding the letter and that plaintiff would send money to defendant. (Constantine Aff., Ex. D.) On February 25, 2002, defendant acknowledged receipt of plaintiff's "check in the amount of $5,000 as a retainer replenishment." (Pl.'s Aff., Ex. JJ.) Moreover, between January 12, 2001 and July 14, 2004 -- during which time plaintiff believed defendant was litigating the 2001 action -- plaintiff paid defendant at least $25,000 in legal fees. (Id.)
In September 2004, plaintiff, believing that the 2001 action "appear[ed] to be heading toward its final innings," requested that defendant send him "a copy of the actual complaint that you have filed on my behalf." (Id., Ex. Q.) On October 29, 2004, defendant sent plaintiff signed copies of an amended summons and verified amended complaint, dated November 3, 2003. (Id., Ex. BB.) But neither document bore an index number because defendant never brought the 2001 action. (Id., Ex. S ("My [plaintiff's] complaint copy doesn't have an index number on it.").) Without the index number, plaintiff was unable to find a record of the 2001 action on the New York State Unified Court System's website. (Id.) At some point, defendant told plaintiff that the index number for the 2001 action was 100545/01 and plaintiff then asked defendant "to send [him] a copy of the pre-amended version of the complaint (index #100545/2001) with all numbers, dates, [and] stamps" from the clerk's office. Defendant, however, could not produce such a document. (Id., Ex. T.) Indeed, plaintiff "specifically recall[s defendant] informing [him] that" he would be unable to "find the Purported 2001 Action on the New York State Court System's website because it had been 'sealed,' and assigned a new index number." (Pl.'s Aff. ¶ 23.) When plaintiff again asked for a copy of the complaint as- filed, defendant replied in an email, stating, "[u]nfortunately, when I asked the clerks, they laughed at me. I would be lucky to get something from them that happened 5 minutes ago, much less 5 years." (Id., Ex. V.)
On February 1, 2005, four years after he was supposed to file the 2001 action, defendant actually did file a second suit against Mass Mutual in New York Supreme Court, Queens County ("2005 action"). (Id. ¶ 30, Ex. FF.) As drafted by defendant, the 2005 complaint alleged 6 causes of action: the first sought the exact same declaratory relief that the Supreme Court had denied in the 1999 action; the second was for fraud; and the remaining claims -- claims 3 through 6 -- sounded in tort. (Id., Ex. FF.) The Supreme Court held that the first claim was barred by res judicata and the remaining claims were barred by the statute of limitations. (Id., Ex. GG, Goldstein v. Mass. Mutual Life Ins. Co., No. 2515/05, Short Form Order (N.Y. Sup. Ct. Aug, 22, 2005).). As to the tort claims, which had a three year statute of limitations, the Supreme Court found that plaintiff had "not alleged any facts or actions taking place subsequent to 1998," that he "only [had] until the end of 2001 to interpose the[ tort] claims" against Mass Mutual, and that "[p]laintiff did not interpose these claims until February 1, 2005." (Id.)
The dismissal of the 2005 action "shocked" plaintiff, particularly the Supreme Court's findings "regarding my not 'interposing' claims three through six b[y] the end of 2001", because he believed that defendant had "interposed" these claims in the 2001 action. (Id., Ex. T.) Indeed, plaintiff was so convinced that the Supreme Court had erred in finding his tort claims time-barred that he decided to appeal the decision. (See id., Ex. HH.) In an email to defendant on December 7, 2005, shortly before defendant filed the appeal, plaintiff wrote: "I am sure the appellate guy you met with on Monday had the opportunity to realize that [the Supreme Court Justice']s finding that I had not "'interpos[ed]' claims three through six b[y] the end of 2001 w[as] outright [i]ncorrect." (Id., Ex. T ...