Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated November 21, 2008. The order, insofar as appealed from, denied the branches of plaintiff's motion for summary judgment seeking to dismiss defendant's first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims.
Richard A. Kraslow, P.C.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of plaintiff's motion for summary judgment seeking to dismiss defendant's first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims are granted.
Plaintiff represented defendant in a matrimonial action against his wife, which action terminated upon her death. Thereafter, with plaintiff's representation, defendant commenced a Surrogate's Court action to recover marital property from his deceased wife's estate. Plaintiff and defendant had executed a retainer agreement, dated January 28, 2002, which governed the legal services rendered during the matrimonial action. They did not execute another retainer agreement for the Surrogate's Court action. Plaintiff commenced this action to recover damages for breach of contract and unjust enrichment after defendant had failed to pay for the legal services which plaintiff had rendered in connection with the Surrogate's Court action.
Defendant answered and, in addition to interposing various affirmative defenses, asserted the following counterclaims: first, the matrimonial action and retainer agreement had terminated on April 15, 2002, upon the death of defendant's wife, whereupon the parties had failed to execute a subsequent agreement; second, plaintiff had failed to timely file a right of election against defendant's wife's estate, resulting in damages in the amount of $66,000; third, plaintiff had not challenged the validity of a waiver agreement whereby defendant had disclaimed his status as the sole beneficiary of his wife's pension benefits, resulting in damages in the amount of $109,000; fourth, plaintiff had improperly advised defendant to stop paying the mortgage on the marital residence, which had resulted in a foreclosure action and damages "in an amount of not less than $100,000"; fifth, that plaintiff should refund the money that defendant had paid him under the retainer agreement in the amount of $5,090 because the retainer agreement was "legally deficien[t]"; sixth, plaintiff had been unjustly enriched in the amount of $5,090 because the retainer agreement was "legally deficient"; seventh, that plaintiff should refund the money defendant had paid him after the alleged termination of the retainer agreement in the amount of $6,950; eighth, plaintiff had been unjustly enriched in the amount of $6,950; and ninth, plaintiff was not entitled to damages for any legal services rendered to defendant after April 15, 2002.
Plaintiff moved for summary judgment seeking to dismiss the counterclaims in their entirety. The District Court denied the motion with respect to all the counterclaims except the fourth. Plaintiff appeals from so much of the order as denied the various branches of its motion.
As a preliminary matter, CPLR 3017 (a) provides that "every complaint,
counterclaim . . . shall contain a demand for the relief to which the
pleader deems himself entitled." A counterclaim is essentially
defendant's complaint against plaintiff and "alleges a present viable
cause of action upon which the defendant seeks judgment. It is not a
responsive pleading . . . [i]t is not a defense" (Kane v Kane, 163
AD2d 568, 571 , quoting Edelman v Edelman, 88 Misc 2d 156, 159
[Sup Ct, Nassau County 1976] [internal quotation marks omitted]).
Thus, like a complaint, a counterclaim may be dismissed where "no
affirmative relief is sought" (Charles H. Greenthal
& Co. v 301 E. 21st St. Tenants' Assn., 91 AD2d 934 ).
Inasmuch as both the first and ninth counterclaims do not contain a
demand for affirmative relief, the District Court should have granted
the branches of plaintiff's motion for summary judgment seeking
to dismiss them.
With respect to the second counterclaim, defendant failed to rebut plaintiff's proof that defendant was unable to establish his legal malpractice action. To succeed on a motion for summary judgment dismissing a counterclaim for legal malpractice, a plaintiff "must demonstrate that the [defendant] is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973, 974 ; see Kotzian v McCarthy, 36 AD3d 863 ). In response, the defendant is required to show that the plaintiff "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused [the defendant] to sustain actual and ascertainable damages" (Mueller v Fruchter, 71 AD3d 650  [internal citations omitted]).
Plaintiff submitted a sworn affidavit averring that he had reached a favorable tentative settlement with the estate of defendant's deceased wife in the amount of $100,000. In response, defendant failed to proffer any evidence that he had sustained actual and ascertainable damages resulting from plaintiff's decision to pursue one strategy in the Surrogate's Court action rather than another (Collard & Roe, P.C. v Vlacancich, 6 Misc 3d 17, 18-19 [App Term, 9th & 10th Jud Dists 2004]). Consequently, the District Court should have dismissed the second counterclaim.
With respect to the third counterclaim, defendant failed to rebut plaintiff's proof that defendant did not establish that he had signed the waiver of pension benefits under mental duress. Likewise, defendant's fifth and sixth counterclaims have "no merit" because defendant failed to either rebut plaintiff's proof that the retainer agreement was legally sufficient or specify any legal theory upon which relief could potentially be granted (Ventura v Fischer, 21 Misc 3d 131[A], 2008 NY Slip Op 52124[U], *2 [App Term, 2d & 11th Jud Dists 2008]; see CPLR 3212 [b]).
Finally, the District Court should have dismissed the seventh and eighth counterclaims because plaintiff's alleged violation of 22 NYCRR 1215.1, in and of itself, is not a ground for the disgorgement or refund of already paid attorney's fees (see Jones v Wright, 16 Misc 3d 133[A], 2007 NY Slip Op 51494[U] [App Term, 9th & 10th Jud Dists 2007]; ...