Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered September 3, 2010, which denied defendant's motion to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint, unanimously modified, on the law, to grant partial summary judgment to defendant to the extent of dismissing the complaint save for plaintiff's cause of action for quantum meruit, and otherwise affirmed, without costs.
The following facts are undisputed: In 2002, plaintiff, a newly admitted attorney, placed an advertisement in the New York Law Journal seeking a mentorship opportunity with an experienced solo practitioner in order to gain trial experience. Defendant responded to the advertisement and the parties met. Subsequently, plaintiff saw an advertisement in the Journal placed by a Bronx solo practitioner looking to refer cases out to other experienced attorneys. Defendant met with the Bronx practitioner and agreed to act as trial counsel for the Bronx attorney's clients with a 40% referral fee payable to the Bronx attorney. It is further undisputed that plaintiff referred at least two cases to defendant's law office, and that he conducted some depositions for cases on which defendant was working, and drafted some bills of particulars -- even though plaintiff had not litigated any personal injury cases prior to meeting defendant. Plaintiff received some payments from defendant which defendant characterized as mostly for per diem work. Eventually, however, according to plaintiff, the payments ceased.
In August 2006, plaintiff filed a summons and complaint alleging 10 causes of action as follows: (1) breach of an oral partnership agreement; (2) breach of an oral agreement; (3) fraud; (4) an accounting; (5) unjust enrichment; (6) fraud in the inducement; (7) breach of fiduciary duty; (8) estoppel; (9) contract implied in the law based on past performance; and (10) quantum meruit.
Plaintiff alleged, inter alia, that defendant had proposed that they should work together as partners in a personal injury law practice with each having an equal share of the profits gained from the cases they worked on jointly. Plaintiff further alleged that between 2002 and 2005 he worked on more than 100 personal injury cases for defendant, expended approximately 500 hours in connection with these cases, and contributed $5,000 in capital to the partnership.
In September 2006, defendant served a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1) and (4). Defendant argued that no sustainable cause of action exists because no partnership agreement, oral or written, existed between him and plaintiff; that defendant did not intend to enter into a partnership; and "there is no evidence whether in the form of sharing losses, tax returns, written agreement or actions demonstrating that the parties held themselves out as a partnership."
Plaintiff opposed, and on November 30, 2006, the motion court heard oral argument. The court declined to convert the motion into one for summary judgment, and found that the factual allegations of plaintiff sufficiently stated a cognizable cause of action. In May and June 2008, discovery was conducted, and the parties were deposed.
In June 2009, defendant again moved to dismiss the action pursuant to CPLR 3211(a)(1) and (4). Alternatively, defendant requested summary judgment dismissing the complaint. While defendant raised arguments similar to those in his pre-answer motion seeking dismissal of the complaint, this time, on the basis of plaintiff's deposition transcript, he argued that plaintiff's proof failed to raise a triable issue as to the existence of an oral partnership.
Defendant noted that there was no evidence or testimony offered to indicate that the parties had shared earnings 50/50 in accordance with the alleged oral partnership arrangement, or that plaintiff shared in law firm losses and/or expenses, or that plaintiff contributed capital to the law firm. Defendant further offered evidence that, in conducting depositions, plaintiff had deemed himself to be "of counsel" or working independently. Defendant affirmed that the referred cases from the Bronx litigator comprised only 10% of his law firm practice.
Defendant referenced plaintiff's testimony at deposition where plaintiff conceded, inter alia, that he had full-time employment with another law firm during the relevant time period; that the "overhead" in defendant's office was "no concern of his"; that there was no letterhead evidencing a partnership; and that he did not know the name of the staff in defendant's law office. In opposition, plaintiff produced, inter alia, a bank account statement to show that he had paid defendant $750 which he claimed was part of a $5,000 contribution to the partnership.
On September 3, 2010, the court denied defendant's motion for summary judgment upon finding that the motion was precluded by the law of the case doctrine. The court found that the argument was identical to the prior motion, and defendant had a ...