TOKAYER v. Jonathan Katz, Defendant–Respondent. (2024)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about April 4, 2023, which, after a nonjury trial, dismissed the complaint as against defendant Jonathan Katz, unanimously affirmed, without costs.

We affirm dismissal of the breach of contract claim, but on different grounds;  namely, that the claim is barred by the statute of frauds.  The unpaid legal fees at issue – for which plaintiff claims Katz agreed to be personally liable – were incurred in connection with plaintiff's representation of defendant Kosher Sports, Inc. (KSI) in the Queens Ballpark Company, LLC (QBC) action.  On appeal, even plaintiff characterizes this case as an effort to enforce an agreement “to pay for legal services provided to another,” namely, KSI. General Obligations Law § 5–701(a)(2) requires that any “promise to answer for the debt ․ of another” be in writing and signed by the party to be charged therewith;  however, plaintiff never produced a retainer agreement signed by Katz (see Parma Tile Mosaic & Marble Co., Inc. v. Estate of Short, 87 N.Y.2d 524, 527, 640 N.Y.S.2d 477, 663 N.E.2d 633 [1996];  Rosenheck v. Calcam Assoc., Inc., 233 A.D.2d 553, 554, 649 N.Y.S.2d 247 [3d Dept. 1996]).  While plaintiff claims that this case does not involve an agreement to answer for the debt of another, and instead concerns an “original and primary” obligation owed to him by Katz, but the cases he cites in support are inapposite, either because they involved express acknowledgements by defendants that their obligations were “joint and several,” a factor absent from this case (Paribas Props., Inc. v. Benson, 146 A.D.2d 522, 536 N.Y.S.2d 1007 [1st Dept. 1989];  see also Roth Law Firm, PLLC v. Sands, 82 A.D.3d 675, 920 N.Y.S.2d 72 [1st Dept. 2011]), or veil-piercing allegations, also not present here (see Lederer v. King, 214 A.D.2d 354, 625 N.Y.S.2d 149 [1st Dept. 1995]).

Plaintiff's argument, in the alternative, that if the statute of frauds applies it was satisfied by other writings, is unavailing.  Plaintiff refers to a $3,000 check Katz signed, payable to plaintiff, which stated “retainer agreement” in the memo line.  However, the check was written on KSI's account, not Katz's personal account.  Plaintiff also cites Katz's emails to him, written over the course of the QBC action, yet fails to address the trial court's point that none of the emails show that Katz agreed to be liable for legal fees incurred in connection with plaintiff's work on behalf of KSI. Plaintiff avers that, in general, an unsigned retainer agreement can be enforceable, but this general proposition is not probative of the specific issue here, i.e., Katz's exposure for legal fees in connection with services rendered to KSI.

Even if Katz had signed the retainer agreement, or whether upon application of the missing witness rule, it could be inferred that he did (e.g. Matter of Nassau Co. Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995]), we would still affirm, as the retainer agreement, which included a single signature line for Katz, is inadequate for purposes of imposing personal liability upon him (cf.  Summit Solomon & Feldesman v. Matalon, 216 A.D.2d 91, 91, 627 N.Y.S.2d 690 [1st Dept. 1995], lv denied 86 N.Y.2d 711, 635 N.Y.S.2d 948, 659 N.E.2d 771 [1995]);  see also Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74 [1961];  Epstein Becker & Green, P.C. v. Amersino Mktg. Group, LLC, 111 A.D.3d 428, 429, 974 N.Y.S.2d 393 [1st Dept. 2013]).  We further note that the retainer agreement was addressed to Jonathan Katz/Kosher Sports, Inc. (cf.  Mintz & Gold LLP v. Daibes, 125 A.D.3d 488, 489, 4 N.Y.S.3d 170 [1st Dept. 2015]).

Supreme Court correctly dismissed the account stated claim because plaintiff failed to demonstrate “the existence of some indebtedness” owed to him from Katz (Martin H. Bauman Assoc., Inc. v. H & M Intl. Transp., Inc., 171 A.D.2d 479, 485, 567 N.Y.S.2d 404 [1st Dept. 1991]).  Contrary to plaintiff's assertions, the bills at issue do not support the imposition of personal liability upon Katz under an account stated theory, having been sent to “Mr. Jonathan Katz/Kosher Sports Inc.,” with accompanying time records similarly stating:  “Invoice submitted to:  Jonathan Katz/Kosher Sports, Inc.”

Finally, Supreme Court properly dismissed the quantum meruit claim.  Under the circumstances, plaintiff did not have a “reasonable expectation of being compensated” by Katz personally (American–European Art Assoc., Inc. v. Trend Galleries, Inc., 227 A.D.2d 170, 171, 641 N.Y.S.2d 835 [1st Dept. 1996];  see Martin H. Bauman Assoc., 171 A.D.2d at 484, 567 N.Y.S.2d 404]).

We have considered plaintiff's remaining arguments and find them unavailing.