United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN United States District Judge.
Lans LLP (“Cohen Lans”) initiated this action
against David M. Naseman, an attorney proceeding pro
se, to recover unpaid legal fees and expenses in
connection with Cohen Lans' legal representation of
Naseman in a civil action from 2007 to 2009. (Dkt. No. 15
(“Compl.”).) Naseman filed a counterclaim against
Cohen Lans, adding as Counterclaim-Defendants Robert S.
Cohen, Deborah E. Lans, Ryan Weiner, and Dan Rottenstreich,
all of whom were attorneys at Cohen Lans. (Dkt. No. 83.)
Before the Court are cross-motions for summary judgment filed
by Cohen Lans along with the additional
Counterclaim-Defendants (Dkt. No. 123), and by Naseman (Dkt.
No. 133). For the reasons that follow, Cohen Lans' and
the additional Counterclaim-Defendants' motion for
summary judgment is granted and Naseman's motion for
summary judgment is denied.
following facts are taken from the parties' 56.1
statements and are undisputed unless otherwise noted.
The Harding Action
November 13, 2007, Naseman retained Cohen Lans to represent
him in connection with a lawsuit brought against him by his
ex-wife Toehl Harding (the “Harding Action”).
(Dkt. No. 145 ¶¶ 4-6.) In the Harding Action,
Harding raised twelve causes of action against Naseman,
including two fraud claims, alleging that Naseman improperly
hid over $4 million in income when she and Naseman negotiated
their 1993 Property Settlement Agreement (“PSA”)
as part of their divorce. (Id. ¶ 6.) (Cohen
Lans did not represent Naseman in connection with the
negotiation of the PSA. (Id. ¶ 47.)) Harding
claimed that Naseman created a false federal income tax
return showing income much lower than that reported on his
actual tax return. (Id. ¶¶ 7-8.) Naseman
also filed a counterclaim for attorney's fees.
(Id. ¶ 41.)
and Cohen Lans signed a written retainer agreement in
connection with the representation. (Id. ¶ 10.)
The agreement included the hourly rates and reimbursements
which Naseman would pay Cohen Lans, including a retainer of
$50, 000, which was to be credited against the time and
disbursements charged to Naseman. (Id. ¶¶
13-15.) However, the retainer agreement did not include
express integration, modification, or attorney's fees
provisions. (Dkt. No. 141 ¶ 2.) Cohen Lans represented
Naseman for the duration of the Harding Action before Judge
Patterson in the Southern District of New York, including
through trial. (Dkt. No. 145 ¶ 12.)
Lans also engaged in efforts to settle the Harding Action.
For example, on December 7, 2007, Cohen Lans sent a letter to
Harding's counsel discussing her claims. (Id.
¶ 17.) And on December 18, 2007, Harding's counsel
proposed a walk-away settlement agreement to Cohen Lans
partner Robert Cohen (the “December Settlement”),
which Cohen then shared with Naseman, who agreed to the
proposal. (Id. ¶¶ 18-19.) On December 19,
2007, Cohen informed Judge Patterson that Harding had agreed
to withdraw the lawsuit. (Dkt. No. 141 ¶ 8; Dkt. No. 145
¶ 20.) Cohen also informed Naseman that Harding's
counsel had requested the exchange of mutual releases, which
Cohen agreed to, and Rottenstreich forwarded a draft release
to Naseman-but did not request that Naseman sign and return
the release. (Dkt. No. 141 ¶¶ 24- 26.) The parties
dispute whether Cohen Lans advised Naseman that the
settlement was contingent upon arriving at a release mutually
acceptable to Harding and Naseman. (Id. ¶¶
29.) In discussing the confidentiality provisions of the
proposed settlement agreement, Mr. Naseman informed Cohen
Lans that he “must” be able to respond to
inquiries about the allegations in the Harding Action. (Dkt.
No. 145 ¶¶ 24-25.)
parties dispute whether Judge Patterson then
“so-ordered” the settlement; Naseman claims that
Judge Patterson did, but Cohen Lans claims that Judge
Patterson only approved the adjournment of a scheduling
conference. (Dkt. No. 141 ¶¶ 8-9.) Through December
31, 2007, less than $19, 000 in fees and costs had been
incurred by Cohen Lans in connection with its representation
of Naseman. (Id. ¶ 16.)
the putative settlement, the parties continued to litigate
the Harding Action. On May 27, 2008, Cohen Lans filed a
motion for summary judgment on Naseman's behalf, seeking
to dismiss Harding's claims in their entirety and to
enforce the December 2007 settlement. (Dkt. No. 145 ¶
33.) Cohen Lans did not seek an evidentiary hearing on
Naseman's summary judgment motion. (Dkt. No. 141 ¶
11.) On August 1, 2008, Harding filed a motion to dismiss
Naseman's counterclaim for attorney's fees, which
Cohen Lans successfully opposed. (Dkt. No. 145 ¶¶
41-42.) On October 2, 2008, Cohen Lans partner Deborah Lans
again raised the possibility of a “mutual
‘walk[-a]way'” agreement. (Id.
¶ 26.) On November 13, 2008, Judge Patterson granted
Naseman's motion for summary judgment as to Harding's
ten non-fraud claims, denied the motion as to the enforcement
of the settlement agreement, and allowed the two fraud-based
claims to proceed to trial. (Id. ¶¶
trial was held before Judge Patterson from December 16 to 19,
2008. (Id. ¶ 39.) At trial, Cohen Lans
presented evidence in support of Naseman's fees
counterclaim, but did not call Cohen as a witness to testify
concerning the potential settlement. (Id.
¶¶ 28, 43; Dkt. No. 141 ¶ 15.) On July 8,
2009, Judge Patterson issued an Opinion and Order dismissing
Harding's remaining fraud-based claims. (Dkt. No. 145
¶ 40.) The Opinion and Order also dismissed
Naseman's fees counterclaim on the basis that the
parties' PSA precluded the requested relief.
(Id. ¶ 45.)
Lans terminated its representation of Naseman by letter dated
July 20, 2009. (Id. ¶ 48.) Both Harding and
Naseman filed notices of appeal from the July 8, 2009,
Opinion and Order; Naseman retained separate appellate
counsel to do so. (Id. ¶¶ 49-50.) On May
14, 2010, the United States Court of Appeals for the Second
Circuit affirmed Judge Patterson's Order in its entirety.
(Id. ¶ 51.)
The Fee Dispute
Cohen Lans' representation of Naseman, it sent him (and
he received) a series of bills reflecting current charges and
unpaid balances. (Id. ¶¶ 52-53, 55.) The
bills include some identification of the tasks being
performed and the costs incurred, though the parties dispute
the completeness and specificity of the bills. (Id.
¶¶ 59-60.) Naseman concedes that his defense in the
Harding Action required, for certain periods, a significant
amount of time and effort by attorneys who were working long
hours, and that it was “very important” to
Naseman that he win the Harding Action. (Id.
¶¶ 67-68, 70.) After the termination of its
representation, Cohen Lans sent Naseman statements of
accounts reflecting an unpaid balance due. (Id.
¶ 54.) Naseman's last payment to Cohen Lans was for
$300, 000 in December 2008. (Id. ¶ 56, 62.)
This payment was made after repeated warnings from Cohen and
Lans that if Naseman failed to pay prior to the commencement
of the trial, Cohen Lans would cease its representation.
(Dkt. No. 141 ¶¶ 42-45.) Cohen Lans alleges, though
Naseman denies, that Naseman owes Cohen Lans $651, 867.68 for
legal services it provided him and disbursements it incurred
on his behalf in the period after November 2008, including
for trial preparation and post-trial submissions. (Dkt. No.
145 ¶¶ 65-66.) The parties agree that this sum
includes $12, 000 that Cohen Lans paid in expert fees
relating to the Harding Action. (Dkt. No. 141 ¶ 54.)
Naseman claims, though Cohen Lans denies, that following
Cohen Lans' termination of representation, Naseman
proposed a settlement of claims between the two parties.
(Id. ¶¶ 51-52.)
Lans claims, though Naseman denies, that Naseman has a
pattern of claiming non-performance by professionals who seek
to be paid by him for services rendered. (Dkt. No. 145 ¶
72.) Naseman admits that he has been sued for non-payment for
professional services no fewer than five times, including the
instant action, with one such lawsuit resulting in
significant liability for him. (Id. ¶ 73.) For
example, Naseman was sued for unpaid fees and costs by both
his appellate counsel and the handwriting expert in the
Harding Action. (Id. ¶¶ 75, 78.) Moreover,
in some instances, malpractice or non-performance were among
the issues involved in the lawsuits. (Id. ¶
Lans initiated this action on June 4, 2014 (Dkt. No. 1), and
filed the operative, Amended Complaint on September 2, 2014
(Compl.). Cohen Lans asserts four claims relating to
Naseman's alleged failure to pay for its legal services:
(1) breach of contract; (2) account stated; (3) unjust
enrichment; and (4) quantum meruit. (Compl. ¶¶
33-51.) Naseman asserts counterclaims alleging that Cohen
Lans and some of its attorneys-Cohen, Lans, Weiner, and
Rottenstreich-are liable for malpractice, breach of contract,
and breach of fiduciary duty as a result of, among other
things, their failure to settle the civil suit before trial.
(See Dkt. No. 83.) Cohen Lans initially moved for
summary judgment on its claims and on Naseman's
counterclaims on October 22, 2014, before the completion of
discovery. (Dkt. No. 26.) This Court denied that motion
without prejudice as “premature.” (Dkt. No. 65.)
The parties now cross-move for summary judgment.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56. A fact
is material if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if, considering the record as a whole, a rational
jury could find in favor of the non-moving party. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
summary judgment, the party bearing the burden of proof at
trial must provide evidence on each element of its claim or
defense. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “If the party with the burden of proof
makes the requisite initial showing, the burden shifts to the
opposing party to identify specific facts demonstrating a
genuine issue for trial, i.e., that reasonable jurors could
differ about the evidence.” Clopay Plastic Prods.
Co. v. Excelsior Packaging Grp., Inc., No. 12 Civ. 5262,
2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014) (citing
Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at
250-51). The court views all evidence “in the light
most favorable to the nonmoving party” and summary
judgment may be granted only if “no reasonable trier of
fact could find in favor of the nonmoving party.”
Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995)
(internal quotation marks omitted).
Lans and Naseman each move for summary judgment on Cohen
Lans' breach of contract and account stated claims, with
Naseman raising several affirmative defenses and Cohen Lans
claiming that it is entitled to prejudgment interest. All
Counterclaim-Defendants move for summary judgment
Cohen Lans' Claims
Breach of Contract
New York law, a breach of contract claim requires proof of
(1) an agreement, (2) adequate performance by the plaintiff,
(3) breach by the defendant, and (4) damages."
Clopay, 2014 WL 4652548, at *4 (quoting Fischer
& Mandell, ...