Angeli v. Barket

211 A.D.3d 896

180 N.Y.S.3d 564

Toni Marie ANGELI, appellant,

v.Bruce BARKET, et al., respondents.

2020–04459

Index No. 607788/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 11, 2022

December 21, 2022

Glynn Mercep and Purcell, LLP, Stony Brook, NY (A. Craig Purcell of counsel), for appellant.

Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY (Greg S. Zucker and Annie P. Kubic of counsel), for respondent Bruce Barket.

Cordova & Schwartzman, LLP, Garden City, NY (Jonathan B. Schwartzman of counsel), for respondent Barket, Epstein, Kearon, Aides & Loturco, LLP.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated May 14, 2020. The order granted the defendants’ separate motions pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs.

In 1997, the defendant Bruce Barket, an attorney, opened a law firm, nonparty Law Office of Bruce A. Barket, P.C. (hereinafter BAB). In 2002, nonparty Martin Tankleff retained BAB and other law firms to pursue vacatur of two judgments of criminal conviction rendered against him in 1990. These efforts were ultimately successful, as this Court vacated the judgments in 2007 (see People v. Tankleff, 49 A.D.3d 160, 161–162, 848 N.Y.S.2d 286 ). Tankleff thereafter retained BAB and two other law firms to pursue actions, inter alia, to recover damages for wrongful conviction.

During the course of his representation of Tankleff, Barket was affiliated with four law firms, beginning with BAB. In 2008, Barket partnered with the plaintiff, Toni Marie Angeli, to form nonparty Barket and Angeli, P.C. (hereinafter B & A). Their partnership ended in July 2009 when they executed a dissolution agreement relating to B & A (hereinafter the dissolution agreement). Barket joined nonparty Quadrino & Schwartz, LLP, shortly thereafter, before leaving in January 2012 to serve as a partner at the defendant Barket, Epstein, Kearon, Aides & Loturco, LLP (hereinafter BEKAL).

In 2018, a settlement was reached in a federal civil rights action that Barket and other attorneys had commenced on behalf of Tankleff (hereinafter the federal action), resulting in a legal fee. Based on their differing views regarding the effect and interpretation of the dissolution agreement, Angeli, Barket, and BEKAL disagreed on the percentage of the fee that Angeli was entitled to. Barket and BEKAL eventually agreed on a percentage of the fee that would be paid to Barket and Angeli for B & A's work on the federal action.

In April 2019, Angeli commenced this action against Barket and BEKAL. She asserted a cause of action against Barket to recover damages for breach of contact, and a cause of action against BEKAL to recover damages for tortious interference with contractual relations. The cause of action against BEKAL related solely to the fee dispute in the federal action, whereas Angeli alleged that Barket breached the dissolution agreement with regard to the fee dispute in the federal action and a variety of other matters. Barket and BEKAL separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. By order dated May 14, 2020, the Supreme Court granted both motions. Angeli appeals.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7). However, when evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one" ( Berland v. Chi, 142 A.D.3d 1121, 1122–1123, 38 N.Y.S.3d 57 [citations omitted]; see Sokol v. Leader, 74 A.D.3d 1180, 1181–1182, 904 N.Y.S.2d 153 ).

"The essential elements of a cause of action to recover damages for breach of contract are (1) the existence of an enforceable contract, (2) the plaintiff's performance pursuant to that contract, (3) the defendant's breach of the contract, and (4) damages resulting from that breach" ( Nassau Operating Co., LLC v. DeSimone, 206 A.D.3d 920, 926, 171 N.Y.S.3d 528 ). To succeed on a cause of action to recover damages for tortious interference with contractual relations, a plaintiff must establish, among other things, an actual breach by a third party of the contract that the defendant allegedly interfered with (see Influx Capital, LLC v. Pershin, 186 A.D.3d 1622, 1624, 131 N.Y.S.3d 712 ).

Here, the Supreme Court properly directed dismissal of so much of the cause of action against Barket, to recover damages for breach of contract, as was predicated upon an alleged breach of the dissolution agreement, and the cause of action against BEKAL, to recover damages for tortious interference with...