DeToffol & Associates, New York (David J. DeToffol of
counsel), for appellant-respondent.
I. Behar, P.C., New York (Leon I. Behar of counsel), for
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.
Supreme Court, New York County (Ellen M. Coin, J.), entered
August 8, 2013, which, to the extent appealed from as limited
by the briefs, denied plaintiff's motion for partial
summary judgment on liability and to dismiss defendant's
affirmative defenses and counterclaim, and ruled that
defendant must bear the cost of either traveling to depose
plaintiff or conducting the deposition by video conference,
unanimously modified, on the law, to grant the motion as to
the second defense, and otherwise affirmed, without costs.
Order, same court and Justice, entered September 3, 2013,
which, to the extent appealed from, denied plaintiff's
motion to seal certain documents, unanimously affirmed,
without costs. Order, same court and Justice, entered on or
about July 22, 2015, which granted defendant's motion for
partial summary judgment dismissing plaintiff's request
for punitive damages, and denied defendant's motion for
reargument of so much of his motion for summary judgment as
sought dismissal of the complaint based on judicial estoppel,
unanimously reversed, on the law, with respect to
defendant's motion to dismiss the request for punitive
damages, and that motion denied, and the appeal therefrom
otherwise dismissed, without costs, as taken from a
order denying defendant's motion for reargument is not
appealable (see e.g. Fontanez v St. Barnabas Hosp.,
24 A.D.3d 218');">24 A.D.3d 218 [1st Dept 2005]). Defendant's claim that he
actually moved for renewal is without merit.
failed to show that the judicial estoppel defense "is
not stated or has no merit" (CPLR 3211[b]). Plaintiff
was a defendant in a federal criminal case in which he
obtained relief (a lower fine and forfeiture amount) by
omitting his claim that defendant owed him $200, 000 from his
sworn personal financial statement. Thus, defendant has
stated a defense that plaintiff should be judicially estopped
from claiming in the instant action that defendant owes him
$200, 000 (see e.g. Manhattan Ave. Dev. Corp. v
Meit, 224 A.D.2d 191');">224 A.D.2d 191 [1st Dept 1996], lv denied
88 N.Y.2d 803');">88 N.Y.2d 803 ).
defendant concedes, his second defense, that "plaintiff
is not entitled to any [of] the relief requested, " is
not an affirmative defense.
contends that he is entitled to summary judgment in the
amount of $200, 000 or, in the alternative, on liability.
However, while nonrefundable retainer fee agreements are
against public policy (Matter of Cooperman, 83
N.Y.2d 465, 471 ), defendant submitted an expert's
affirmation saying that defendant's flat-fee retainer
agreement was not a nonrefundable fee agreement. Furthermore,
even if the agreement is found to be an unenforceable
nonrefundable agreement, defendant will still be entitled to
quantum meruit payment for services he actually rendered
(id. at 475). In light of the parties'
conflicting affidavits as to why plaintiff discharged
defendant, plaintiff is not entitled to summary judgment on
the ground that he discharged defendant for cause (see
Campagnola v Mulholland, Minion & Roe, 76 N.Y.2d 38,
44 ). Similarly, given the parties' conflicting
affidavits about the work that defendant did, plaintiff has
not established that defendant performed no services at all.
seeks to dismiss, pursuant to CPLR 3211, defendant's
counterclaim for the $50, 000 of the agreed-upon $250, 000
that plaintiff did not pay. As indicated, issues of fact as
to the retainer agreement and defendant's discharge
preclude summary judgment. A fortiori, plaintiff is not
entitled to dismissal of the counterclaim on the pleadings.
respect to his request for punitive damages, plaintiff claims
that defendant tried to coerce him into admitting crimes that
he did not commit. Plaintiff also claims that, after he
discharged defendant and asked for a refund, defendant
threatened to write a harmful letter to the judge presiding
over plaintiff's criminal case. "It is for the jury
to decide whether [defendant's]... dealings with
[plaintiff] were so reprehensible as to warrant punitive
damages" (Swersky v Dreyer & Traub, 219
A.D.2d 321, 328 [1st Dept 1996], appeal withdrawn 89
N.Y.2d 983 ). To obtain punitive damages for breach of
fiduciary duty in a tort case, plaintiff was not required to
allege that defendant's conduct was directed to the
general public (Don Buchwald & Assoc. v Rich,
281 A.D.2d 329, 330 [1st Dept 2001]).
motion court noted, defendant did not argue that traveling to
the state where plaintiff is incarcerated or conducting a
video conference would cause him financial hardship
(see CPLR 3116[d]).
utterly failed to show good cause for sealing the remaining
unsealed documents (see Mosallem v Berenson, 76
A.D.3d 345, 349 [1st Dept 2010]). For example, the sample
proffer agreement does not even mention him, and the