May 9, 2013
Jaffe Ross & Light, LLP, Plaintiff,
Ezra Mann, Defendant.
Plaintiff Jaffe, Ross & Light, LLP appearing pro se
Defendant Jon A. Lefkowitz, Esq.
Cynthia S. Kern, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:
Notice of Motion and Affidavits Annexed. 1
Answering Affidavits 2
Cross-Motion and Affidavits Annexed... 3
Answering Affidavits to Cross-Motion... 4
Replying Affidavits 5
Plaintiff commenced the instant action to recover allegedly outstanding legal fees in connection with its representation of defendant in two separate lawsuits. Plaintiff now moves for an order pursuant to CPLR § 3212 and § 3016(f) granting summary judgment on the ground that defendant failed to sufficiently object to the itemized invoices annexed to its verified complaint. Defendant has cross-moved for an order pursuant to CPLR § 3212 granting him summary judgment dismissing this action in its entirety on the ground that service in this matter is invalid as defendant, an Orthodox Jew, was served on the Sabbath. For the reasons set forth below, both motions are denied.
The relevant facts are as follows. On or about June 1, 2006, defendant Ezra Mann ("Mann") retained plaintiff pursuant to a Retainer Agreement (the "Retainer Agreement") in connection with a lawsuit entitled Kaygreen Realty Co. LLC v. Belmont Furniture, Inc.. Pursuant to the Retainer Agreement, plaintiff represented Mann as an individual and not the corporate entity. Thereafter, plaintiff alleges that defendant and it entered into two oral agreements for plaintiff to represent defendant in two other actions. The first was entitled Kaygreen Realty Co., LLC v. Ezra Mann (the "Queens Action") and was related to the action in the Retainer Agreement. The second action was completely unrelated and was entitled, Furniture World of Jerome Avenue, Inc. v. Luna Bros. Realty Corp. (the "Bronx Action"). It is undisputed that no retainer agreement was ever made between the parties for the Queens or Bronx Action.
Plaintiff allegedly performed legal services, advanced costs and incurred expenses on behalf of Mann pursuant to the oral agreements from June 1, 2006 through October 7, 2011. Specifically, plaintiff alleges in its complaint that Mann owes it $21, 107.54 for its work on the Queens Action and $27, 523.90 for its work on the Bronx Action. Plaintiff brought the instant action to collect the allegedly outstanding fees.
In its current motion, plaintiff argues that it is entitled to summary judgment as it attached itemized invoices to its verified complaint and defendant failed to adequately dispute each charge listed on the invoices as required by CPLR § 3016(f). In response, defendant has moved to dismiss the complaint on the ground that service is invalid as defendant is an Orthodox Jew and service of process was effectuated on the Sabbath. Additionally, defendant contends that summary judgment is inappropriate for three reasons: (1) he already paid plaintiff for its work in relation to the Queens Action; (2) the corporate defendant, not Mann, was the client in the Bronx Action; and (3) plaintiff agreed to take the Bronx Action on a contingency fee basis.
As an initial matter, service of process on the defendant was not defective. Section 13 of the General Business Law provides as follows:
Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial is guilty of a misdemeanor.
While it is clear that maliciously serving a party on the Sabbath constitutes a misdemeanor, neither the First Department nor the Court of Appeals has definitely held that such a finding necessarily makes service invalid. Regardless, even assuming "maliciously serving process on a Saturday as holy time voids such service, " defendant has the burden to set forth sufficient factual allegations proving malicious procurement of service of process in the first instance. In the Matter of Kushner, 200 A.D.2d 1 (1st Dept 1994) (citing Chase Manhattan Bank, N.A. v. Powell, 111 Misc.2d 1011 (NY Sup. Ct. 1981)). An affidavit by defendant that merely attests to the fact that defendant is a member of the Jewish faith and was served on the Sabbath is insufficient to show proof of malicious intent. See Hessol v. Albert, 1996 WL 34406759 (NY Sup. Ct. 1996).
In the present case, defendant has failed to present any evidence demonstrating that plaintiff maliciously procured service by serving defendant on the Sabbath. Defendant fails to present any evidence relating to the intent of the plaintiff or plaintiff's process server. Instead, defendant offers nothing more than his own self-serving conclusory statement that he is a member of the Jewish faith and that service was effectuated while he was observing the Sabbath. This is insufficient as a matter of law to prove malicious intent.
The court now turns to plaintiff's motion for summary judgment. Pursuant to CPLR § 3016(f):
In an action involving the... performing of labor or services... the plaintiff may set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each. Thereupon the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price.
In an action to recover legal fees, a plaintiff satisfies CPLR § 3016(f)'s requirements by annexing itemized legal bills to its verified complaint. See O'Callaghan v. Republic W. Ins. Co., 269 A.D.2d 114 (1st Dept 2000); Phillips Nizer Benjamin Krim & Ballon LLP v. Chu, 240 A.D.2d 231 (1st Dept 1997). The defendant then must specifically dispute the items on the itemized bills individually and indicate the exact grounds for each denial; a blanket general denial will be insufficient. Id. Specifically, a "general denial in defendant['s] answer [is] insufficient to raise any issues of fact as to the reasonable value of plaintiff's services as itemized in the invoices that [are] annexed to the complaint" making summary judgment appropriate. O'Callaghan, 269 A.D.2d at 114. However, "[w]hen a party's defense goes to the entirety of the parties' dealings rather than to the individual contents of the account, specific denials addressed to the account's items are not required." Green v. Harris Beach & Wilcox, 202 A.D.2d 993 (4th Dept 1994) (citing Guth Co. v. Gurland, 246 A.D.67 (1st Dept 1935)).
In the present case, plaintiff is not entitled to summary judgment for defendant's failure to set forth specific denials in its answer as defendant's defenses for non-payment of the invoices annexed to plaintiff's complaint go to the entirety of the parties' dealings. Defendant asserts as his second affirmative defense that "Plaintiff's agreement [for the Bronx Action] was with a corporation, Furniture Wold of Jerome Avenue, Inc., and not with defendant." Additionally, defendant states as his third affirmative defense that "defendant paid plaintiff in full for any debt of defendant, and Plaintiff accepted said payment in full satisfaction of all defendant's debt." Both of these defenses relate to the entirety of the parties' dealings—i.e. whether defendant is liable to plaintiff for payment in the first place—not the reasonableness of each charge. Accordingly, defendant was not required to make specific denials addressed to the invoices and summary judgment pursuant to CPLR § 3016(f) is inappropriate as there remain material issues of fact in dispute.
Based on the foregoing, plaintiff's motion and defendant's cross-motion are hereby denied. Both parties are to appear for a Preliminary Conference at 60 Centre Street, New York, New York, room 432 on Tuesday June 4, 2013 at 9:30 a.m.. This constitutes the decision and order of the court.