New York Supreme and/or Appellate Courts Appellate Division, First Department
January 22, 2013
RICHARD WARE LEVITT DOING BUSINESS AS LEVITT & KAIZER, ATTORNEYS AT LAW, ETC., PLAINTIFF-RESPONDENT, --
JEFFREY BROOKS, DEFENDANT-APPELLANT.
Levitt v Brooks
Decided on January 22, 2013
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.
Friedman, J.P., Renwick, Manzanet-Daniels, Roman, Clark, JJ.
Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered November 3, 2011, awarding plaintiff the principal amount of $224,956.16, and bringing up for review an order, same court and Justice, entered October 31, 2011, which granted plaintiff's motion for summary judgment on his breach of contract claim, unanimously affirmed, with costs. Appeal from the order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law with evidence that defendant, who signed an agreement to be jointly and severally liable for his brother's legal fees, failed to pay the outstanding legal fees to plaintiff. In opposition, defendant failed to raise a triable issue of fact. The motion court properly rejected defendant's claim that the agreement was procured under duress. Plaintiff's "threat" to cease representing defendant's brother in federal criminal proceedings unless he was paid was not wrongful (see Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 [1st Dept 2000]). Further, defendant himself was never precluded from exercising his free will (see id.).
The order of the Federal District Court, granting plaintiff's motion to compel defendant's brother to pay the outstanding attorney's fees and directing the entry of judgment in plaintiff's favor in the amount of $224,956.16, was prima facie proof of plaintiff's damages in this case. Defendant's brother acknowledged the amount of legal fees owing to plaintiff and never challenged the reasonableness of the fees before the District Court. In opposition to plaintiff's prima facie showing, defendant failed to raise a triable issue of fact.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 22, 2013
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