Carlin v. William Gottlieb Mgmt. Co.

212 A.D.3d 429

181 N.Y.S.3d 91

Allan H. CARLIN, Plaintiff–Respondent,

v.WILLIAM GOTTLIEB MANAGEMENT CO., LLC, Defendant–Appellant.

17042-, 17043

Index No. 655906/18

Case Nos. 2022-03203, 2022-03207

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

Entered January 10, 2023

Eisenberg & Baum, LLP, New York (Eric M. Baum of counsel), for appellant.

Allan H. Carlin, Willow, respondent pro se.

Acosta, P.J., Webber, Moulton, Shulman, Higgitt, JJ.

Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered February 24, 2022, in favor of plaintiff and against defendant in the total amount of $708,581.90, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 16, 2022, which granted plaintiff's motion for summary judgment on his claim that defendant breached the parties’ engagement letter dated September 18, 2014, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff demonstrated prima facie entitlement to judgment as a matter of law by submitting evidence that in September 2014 defendant real estate company retained him pursuant to a written general retainer agreement requiring him to be available for at least 20 hours per week, that he performed thereunder, and that defendant breached the agreement by failing to pay him the agreed monthly fee starting in August 2018 and then terminating him in October 2018 without providing the required 90 days’ notice of termination (see Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010] ). Among other things, plaintiff submitted his daily reports showing work performed, ledger entries, and testimony concerning his availability and work, and defendant's payment at the agreed rate through July 2018.

In response, defendant failed to submit evidence in admissible form sufficient to raise any issue of fact, but only vague and conclusory complaints about plaintiff's unavailability when its principal called him (see Stonehill Capital Mgt., LLC v. Bank of the W., 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016] ). Two of defendant's executives designated as witnesses on behalf of defendant testified that they were unaware of any evidence to support the claim that plaintiff was available for less than 20 hours per week.

The retainer arrangement was neither procedurally nor substantively unconscionable, as the sophisticated client fully understood the simple arrangement and performed pursuant to...