GOLDFARB v. ROMANO (2018)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 10, 2017, which granted defendants Joseph A. Romano, Esq., Joseph A. Romano, P.C., and Law Offices of Joseph A. Romano, P.C.'s motion to dismiss the causes of action for breach of express contract, breach of implied contract, and unjust enrichment as against them, and the cause of action for quantum meruit as against defendant Joseph A. Romano, Esq., and otherwise denied the motion as to the cause of action for quantum meruit, unanimously modified, on the law, to deny the motion as to the breach of express contract, breach of implied contract, and unjust enrichment causes of action as against defendants Joseph A. Romano, P.C., and Law Offices of Joseph A. Romano, P.C., and otherwise affirmed, without costs.

The statute of frauds (General Obligations Law § 5–701[a][1] ) does not bar the alleged oral agreement between plaintiff and defendant law firm, pursuant to which the firm agreed to pay plaintiff 50% of the legal fees it earned on cases that he procured or originated and performed work on.  In pertinent part, the statute renders void an agreement that “[b]y its terms is not to be performed within one year from the making thereof.”  The fact that plaintiff was an at-will employee, i.e., he could be terminated at any time (see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300–301, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] ), made the oral agreement capable of completion within the one-year period (see D & N Boening, Inc. v. Kirsch Beverages, 63 N.Y.2d 449, 456, 483 N.Y.S.2d 164, 472 N.E.2d 992 [1984];  compare Kalfin v. United States Olympic Comm., 209 A.D.2d 279, 280, 618 N.Y.S.2d 724 [1st Dept. 1994] [service contract that could not be terminated by defendant within one year absent breach by plaintiff was not terminable as of right and therefore ran afoul of statute of frauds] ).  The fact that legal fees earned during the one-year period would not be paid until after the period had ended did not make the agreement incapable of completion within the period (see Gold v. Katz, 193 A.D.2d 566, 566, 598 N.Y.S.2d 205 [1st Dept. 1993] [“Contingencies on which the payment of an attorney's fee can depend, such as jury verdicts and settlement negotiations, did not create a power in a third person to terminate the alleged ․ arrangement, such as would make it indefinite and incapable of performance within one year”] ).

Plaintiff's allegations, supplemented by email and affidavits by other associates at the firm attesting to a course of dealing, state a cause of action against the law firm for breach of implied contract (see Sivin–Tobin Assoc., LLC v. Akin Gump Strauss Hauer & Feld LLP, 68 A.D.3d 616, 617, 892 N.Y.S.2d 71 [1st Dept. 2009];  see Mirchel v. RMJ Sec. Corp., 205 A.D.2d 388, 390, 613 N.Y.S.2d 876 [1st Dept. 1994] ) and unjust enrichment (see Georgia Malone & Co., Inc. v. Rieder, 86 A.D.3d 406, 408, 926 N.Y.S.2d 494 [1st Dept. 2011], affd 19 N.Y.3d 511, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ).  These causes of action are properly pleaded in the alternative (see generally Farash v. Sykes Datatronics, 59 N.Y.2d 500, 503–504, 465 N.Y.S.2d 917, 452 N.E.2d 1245 [1983] ).

Plaintiff adequately pleaded a quantum meruit claim (see Balestriere PLLC v. BanxCorp., 96 A.D.3d 497, 498, 947 N.Y.S.2d 7 [1st Dept. 2012] ).

The complaint fails to state a cause of action against defendant Joseph Romano individually, since it does not allege that Romano personally entered into any agreement with plaintiff, or was enriched by plaintiff's work separately from the law firm (see Newman v. Berkowitz, 50 A.D.3d 479, 857 N.Y.S.2d 75 [1st Dept. 2008] ).

We have considered defendants' other arguments for affirmative relief and find them unavailing.