CONOR E. BROWNELL, ESQ., Ganz, Wolkenbreit Law Firm, Albany, NY, for the Plaintiff.
MICHAEL P. DELANEY, ESQ., Office of Michael P. Delaney, Albany, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff Byrne & Storm, P.C. commenced this diversity action asserting claims of breach of contract and account stated against defendants Roy Handel (hereinafter "Handel") and Weldon House, Inc. related to its legal representation of them. ( See Compl., Dkt. No. 1.) Pending before the court is Byrne & Storm's motion for summary judgment on its claims and defendants' counterclaims, and defendants' cross motion for partial summary judgment, which seeks dismissal of Byrne & Storm's claims as against Handel. ( See Dkt. Nos. 19, 26.) For the reasons thatfollow, Byrne & Storm's motion is granted as to defendants' counterclaim of legal malpractice and denied in all other respects with leave to renew, and defendants' cross motion is denied.
Byrne & Storm is a law firm with its only office located in Connecticut. ( See Pl.'s Statement of Material Facts (SMF) ¶ 1, Dkt. No. 19, Attach. 8.) On September 1, 2009, attorney James Byrne, of Byrne & Storm, sent to Handel a letter of engagement regarding "[t]he Weldon House [p]roperty." (Dkt. No. 1, Attach. 1; see Pl.'s SMF ¶ 2.) The engagement letter, which was later signed by Handel-who is not an officer or employee of Weldon House, nor is he the owner of the property where Weldon House is located, ( see Defs.' SMF ¶¶ 2-3, Dkt. No. 26, Attach. 2)-indicates that Handel requested that Byrne & Storm represent him "with respect to reviewing and rendering advice with respect to the underlying facts and documentation involving [his] attempts to obtain and operate a motocross facility on" the Weldon House property. (Dkt. No. 1, Attach. 1 at 1.) Under the agreement, Byrne, "the primary attorney responsible for the file, " billed his time at a rate of $350 per hour. ( Id. at 1; see Pl.'s SMF ¶ 3.) The letter of engagement also provides that a monthly interest rate of 1.5% would be added to bills not timely paid, and Byrne & Storm would be entitled to recover attorney's fees associated with any collection efforts. ( See Pl.'s SMF ¶ 4.) "[T]he parties agreed that [Byrne & Storm] would receive a $5, 000 retainer at the outset of the representation, " which was later paid by a check drawn from a Weldon House bank account and signed by Handel's wife and principal/owner of Weldon House, Patricia Handel. (Pl.'s SMF ¶ 5; see id. ¶¶ 6, 8.) Once the retainer was paid, Handel told Byrne that Patricia Handel "was to be the principal contact." ( Id. ¶ 7.)
In June 2010, Byrne drafted a second letter, this time addressing it to both Handel and Weldon House. ( See Dkt. No. 1, Attach. 2.) The second letter, which referenced the September 2009 letter, reduced the hourly billable rate to $300 per hour effective June 1, 2010, but, otherwise, left in place the terms of the September 2009 letter of engagement. ( See id. at 1.) The June 2010 letter was signed by Handel and Patricia Handel. ( See id. at 2.)
Byrne & Storm performed legal services related to the Weldon House property; specifically, it appeared as co-counsel in a state court action, and sent bills to the Handel residence, none of which were returned as undeliverable. ( See Pl.'s SMF ¶¶ 10, 11, 14-15.) In July 2010, the motocross litigation settled "on basically the terms that [d]efendants had initially wanted." ( Id. ¶ 17.) Defendants made several partial payments to Byrne & Storm after paying the initial retainer of $5, 000 in September 2009, including an additional $5, 000 in February 2010, $2, 500 in May 2010, $16, 395 in July 2010, $5, 000 in November 2010, and $5, 000 in February 2011. ( See id. ¶ 19; Dkt. No. 19, Attach. 3 at 36.)
B. Procedural History
Byrne & Storm commenced this action in April 2012, alleging that it was owed an outstanding balance of $261, 929.66 plus interest as set forth above. ( See Compl.) Defendants answered, asserted several affirmative defenses, and asserted five counterclaims. ( See Dkt. No. 7.) Those counterclaims are for: "fraud and overbilling"; legal malpractice; res ipsa loquitur; breach of fiduciary duty; and breach of contract. ( Id. ¶¶ 19-28.) Despite a June - discovery deadline, ( see Dkt. No. 18), Byrne & Storm moved for summary judgment in January 2013, ( see Dkt. No. 19), and, in March -, defendants cross-moved as outlined above, ( see Dkt. No. 26).
III. Standard of Review
The standard of review pursuant to Fed.R.Civ.P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in ...