Kucker Marino Winiarsky & Bittens, LLP v. Nuevo Modern, LLC

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2023 NY Slip Op 30281(U)

KUCKER MARINO WINIARSKY & BITTENS, LLP, Plaintiff, v. NUEVO MODERN, LLC, and SEBASTIAN PEREZ, Defendants.

Index No. 653826/2021, Motion Seq. No. 001

Supreme Court, New York County

January 25, 2023

Unpublished Opinion

DECISION + ORDER ON MOTION

VERNA L. SAUNDERS, JSC

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for SUMMARY JUDGMENT.

Plaintiff Kucker Marino Winiarsky & Bittens, LLP ("plaintiff or "the Firm") brings this action against defendants Nuevo Modern, LLC (Nuevo) and its sole member Sebastian Perez ("Perez"), for unpaid legal fees. Perez now moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint against him. Plaintiff opposes the motion and cross-moves, pursuant to CPLR 3212, for summary judgment in its favor against Perez.

In 2019, plaintiff represented Nuevo in a commercial landlord/tenant dispute captioned Nuevo Modern LLC v Furniture Mix Inc., Civ Ct, NY County, Index No 62519/2019 (Landlord/Tenant Action) (NYSCEF Doc. No. 25 Perez's response to plaintiffs statement of material facts, ¶ 2). A written retainer agreement dated May 17, 2019 ("Retainer") outlines the scope of its representation (id., ¶ 3). The Retainer identifies the parties to the agreement as "Nuevo Modern, LLC ('Client'), and the Firm" (NYSCEF Doc. No. 16, Kucker affirmation, Ex E at 1 and 3). The payment provision in the Retainer reads, in part:

"The Firm provides clients with timely, detailed invoices for professional services performed. Invoices are rendered on a monthly basis and are due and payable upon receipt.

Failure to pay the bill by the (30th) day after receipt will result in the imposition of a late charge equal to nine percent (9%) per annum on the unpaid balance" (id. at 1-2).

The Retainer also states that Perez would be liable for payment as follows:

"It is further understood and agreed that in matters relating to a corporation or other limited liability entity, the Firm bills the corporation or entity directly for legal services. In the event payment is not timely made, it is understood that the Firm has a claim against the directors and officers of the corporation or members of the entity in their individual capacities for the entire amount and the corporation or entity may reimburse the individuals for the amount paid" (id. at 3).

The last page of the Retainer states that "[i]f you wish to engage our firm, please sign the original retainer agreement where indicated below and return same to my office together with a check in the sum of $2,500.00" (id. at 4).

A paralegal at the Firm emailed the Retainer to Perez on May 17, 2019 (NYSCEF Doc. No. 17, Kucker affirmation, Ex F at 1). Perez responded the same day, writing "I want to mention that Alan and I discussed possibly a reduced rate in this case. Can you please check with him on that to determine if he can accommodate me on this matter?" (id. at 1). Although defendants did not return a counter-signed copy (NYSCEF Doc No. 25, ¶ 7), plaintiff was paid the initial $2,500.00 fee (NYSCEF Doc. No. 4, Perez answer ¶¶ 10 and 14; NYSCEF Doc. No. 18, Kucker affirmation, Ex G at 3).

Between June 12 and November 8, 2019, plaintiff emailed six invoices to Perez for its services (NYSCEF Doc. No. 20, Kucker affirmation, Ex 20 at 1-17). Between November 14 and December 27, 2019, plaintiff emailed Perez three separate requests to pay the outstanding amount of $24,549.40 (id. at 18-19). Then, on April 28, 2021, plaintiff served defendants with a Notice of Client's Right to Arbitrate the $24,549.40 due in legal fees, exclusive of late fees (NYSCEF Doc. No. 25, ¶ 12; NYSCEF Doc. No. 2, complaint, Ex A at 2). Defendants did not file a request for fee arbitration (NYSCEF Doc. No. 4, ¶ 22).

Plaintiff commenced this action on June 15, 2021 by filing a summons and complaint asserting two causes of action for (1) breach of contract against Nuevo and (2) breach of contract against Perez. It alleges that $26,758.84, inclusive of late fees charged at 9% per annum from November 8, 2019, is due. Perez has interposed an answer (NYSCEF Doc. No. 4), but Nuevo has not. Perez now moves for summary judgment dismissing the complaint. Plaintiff opposes and cross-moves for summary judgment in its favor on the second cause of action.

A party moving for summary judgment under CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the non-moving party to furnish evidentiary proof in admissible form sufficient to raise a material issue of fact, (see Alvarez, 68 N.Y.2d at 324). The moving party's "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id).

At the outset, the court declines to deny Perez's motion as procedurally defective. The version of Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (a) in effect at the time Perez made the motion required him to submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,"^[1] and plaintiff argues that Perez has failed to file a statement of undisputed facts. While noncompliance with the rule may result in the denial of the movant's motion for summary judgment (see Amos Fin. LLC v Crapanzano, 73 Misc.3d 448, 453 [Sup Ct, Rockland County 2021]), '"[b]lind adherence'" to the rule is not mandated (On the Water Prods., LLC v Glynos, -A.D.3d -, 2022 NY Slip Op 07320, *1 [4th Dept 2022], quoting Leberman v Instantwhip Foods, Inc., 207 A.D.3d 850, 851 [3d Dept 2022]). The court exercises its discretion to excuse Perez's failure to submit the requisite statement. Plaintiff has not alleged that it has been prejudiced, and the court observes that in support of its cross-motion, plaintiff has tendered a statement of material facts, to which defendant has responded.

Turning to the merits, Perez argues that the breach of contract claim pled against him is barred by General Obligations Law § 5-701(a)(2). He avers in an affidavit that he never received and never signed the Retainer (NYSCEF Doc No. 7, Perez aff, ¶¶ 3-5). He states that "[p]laintiff never informed me of any personal obligation on my part to act as a guarantor, or in any other manner answer [sic] for the debts of Nuevo" and that he never consented to act in such capacity, either orally or in writing (id., ¶¶ 13-14). Perez further avers that he did not superadd his personal liability to that of Nuevo. He states that he acted as Nuevo's agent and that plaintiff was aware that he was only an agent (id, ¶¶ 7-8).

Plaintiff counters that Perez has waived the statute of frauds defense, which, in any event, is inapplicable. On the latter point, plaintiff argues that: (1) Perez subscribed to the Retainer as evidenced in the "signature block" in his May 17, 2019 email to plaintiff; (2) Perez undertook a primary obligation to pay plaintiff; (3) plaintiff fully performed under the terms of the Retainer; and (4) Perez is estopped from asserting a statute of frauds defense.

CPLR 3018(b) provides that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as ... statute of frauds." A defendant waives its right to rely on the statute of frauds by failing to move for dismissal before service of an answer is required (see CPLR 3211 [e]; Papell v Calogero, 68 N.Y.2d 705, 707 [1986]) or by failing to plead the statute of frauds as an affirmative defense in its answer (Ryan v Kellogg Partners Inst. Servs., 79 A.D.3d 447, 448 [1st Dept 2010], affd 19 N.Y.3d 1 [2012]).

General Obligations Law § 5-701(a)(2) provides that "[e]very agreement, promise or undertaking is void unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith ... if such agreement, promise or undertaking ... [i]s a special promise to answer for the debt, default or miscarriage of another person." Perez has not pled General Obligations Law § 5-701 as an affirmative defense, nor has he moved to amend his answer to do so. Nevertheless, "[f]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result" (Matthew Adam Props., Inc. v United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 126 A.D.3d 599, 600 [1st Dept 2015] [internal quotation marks and citation omitted]). In the absence of prejudice or surprise to the plaintiff, and where the plaintiff has had the opportunity to address the merits of the unpled defense, the court may consider an unpled statute of frauds defense raised on a defendant's motion for summary judgment (Rogoff v San Juan Racing Assn., 77 A.D.2d 831, 832 [1 st Dept 1980], affd 54 N.Y.2d 883 [1981]). Here, Perez's counsel has submitted two emails he sent to plaintiffs counsel on September 13 and 17, 2021, in which he specifically advised counsel of the applicability of General Obligations Law § 5-701 to plaintiffs claim (NYSCEF Doc. Nos. 26-27, Perez reply affirmation, Exs A and B). Thus, p...