PLLC CONDON ASSOCIATES PLLC v. SRC MICHAEL CARIDI (2025)

Before the Court is the motion in limine filed by Plaintiff seeking to preclude introduction of evidence of alleged legal malpractice, "for cause" termination of counsel, and/or breach of contract at trial. Defendants oppose the motion.

Background

This action arises from a legal fee dispute between Plaintiff Condon Paxos PLLC, as successors-in-interest to Condon & Associates, PLLC, and Defendants SRC Construction Corp. of Monroe ("SRC") and Michael Caridi. In 2010, Defendant SRC retained Plaintiff to represent it in an action against the Atlantic City Housing Authority (ACHA), an architect ("Lindemon"), and an engineering firm ("Czar") in a dispute surrounding the construction of a 48 unit low income senior housing project. Plaintiff filed an action in Federal Court, District of New Jersey, on behalf of SRC against ACHA, Lindemon, and Czar on August 8, 2010 (the "New Jersey Action"). A letter of engagement was signed by Defendants on August 9, 2010, in which the parties agreed to a 33% contingency legal fee.

Lindemon and Czar each moved to dismiss the suit against them, alleging that the complaint failed to state a claim upon which relief could be granted. Lindemon and Czar argued that the plaintiff had not filed Affidavits of Merit of professional negligence within 60 days of filing the complaint, as required by N.J.S.A. § 2A:53A-27. On April 12, 2011, the New Jersey District Court granted Czar's motion and partially granted Lindemon's motion (see SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2011 WL 1375680 [D.N.J. Apr. 12, 2011]). Two years later, Lindemon's motion for summary judgment on the same issue was granted (see SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2013 WL 5771142 [D.N.J. Oct. 24, 2013]).

The action against ACHA continued, and Plaintiff continued to represent Defendant SRC. The trial in the New Jersey Action was scheduled to commence on July 13, 2015 (see SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2017 WL 11462865 [D.N.J. May 5, 2017]). However, a week before the trial was to begin, the parties submitted a letter informing the court that they had "mutually agreed to submit to binding arbitration." (Id. at *1, citing ECF No. 168). Before actually starting arbitration, a disagreement about the scope of the arbitration brought the parties back to the court (see id.). The parties returned to arbitration per the court's order of March 3, 2016. (see id., citing ECF No. 175).

On December 5, 2016, ACHA again contacted the federal court, requesting a stay of the arbitration. That matter was decided on May 5, 2017, and the Court held that all of the issues that had been raised in the litigation were properly before the arbitrators (see id.). Specifically, the federal court held that the issue of whether ACHA could be held vicariously liable for the alleged negligence of Lindemon was to be decided by the arbitrators (see id.). The parties were directed to resume arbitration (see id.).

According to the Final Award issued by the arbitrators, on August 22, 2017, the panel issued an in limine decision on the vicarious liability issue (see NYSCEF Doc. 86 at p.3). The panel held that "any damages proven to have been suffered by SRC, which were caused by the professional malpractice of Lindemon or Czar, shall be reduced from the overall damages awarded to SRC in its claim against ACHA." (Id.).

According to Plaintiff, on the eve of the arbitration hearing in 2017, he was informed that Defendant Caridi had just discovered that Czar was no longer part of the action (Doc. 85, Aff. of Condon ¶ 4). Plaintiff alleges that co-counsel, Robert Hantman, advised Plaintiff to put his malpractice carrier on notice, but, despite this, Plaintiff believed that the firm would continue as lead counsel for the arbitration (id. ¶ 5-6). Plaintiff alleges that he decided not to continue representing SRC after consultation with his legal malpractice carrier (id. ¶ 9). Plaintiff claims that Caridi was disappointed by Plaintiff's decision to withdraw because Caridi did not want Plaintiff off the case (id. ¶¶ 9, 11).

According to Defendants, Plaintiff was terminated on October 10, 2017, based on Plaintiff's failure to file the affidavits of merit in 2011 (see Doc. 90, Caridi Aff. ¶¶ 9-11). Defendant Caridi alleges that the lead arbitrator advised him that Plaintiff could not continue to represent SRC (see id. ¶ 10). Caridi alleges that, in addition to the failure to file the Affidavits of Merit, there were other breakdowns in the legal relationship. Specifically, Caridi claims that there were repeated failures to communicate, unauthorized consents to adjournments requested by ACHA, and an intentional misrepresentation of the reason for the dismissal of Czar and Lindemon from the action (see id. ¶ 12).

Plaintiff agreed to a settlement of $150,000 payable to Defendants by Plaintiff's malpractice insurance carrier. SRC and Caridi individually each signed a General Release dated October 11, 2017, which states in relevant part:

Releasor . . . in consideration of the sum of $150,000 . . . release and discharge Condon & Associates, PLLC and Brian K. Condon, individually, [and their] . . . successors and assigns from all actions, causes of action, suits, . . . covenants, contracts, controversies, agreements, promises, . . . damages, . . . claims, and demands whatsoever, in law, . . . or equity . . . which the Releasors . . . ever had . . . shall or may have for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of the world to the day of the date of this Release.

(Doc. 89).

The arbitration was held and Defendants were awarded $2,294,074.85 in a Final Award dated June 20, 2018 (see Doc. 86; SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2019 WL 1238822 [D.N.J. March 18, 2019] (denying motion by ACHA to vacate arbitration award)). Notably, the arbitrators determined that ACHA did not meet its burden to have any of the damages assigned to the negligence of Lindemon or Czar, so no set off was awarded to ACHA (Doc. 86, p. 11).

Procedural Posture

Plaintiff filed the instant action on April 22, 2022, alleging entitlement to a legal fee of $777,731.34, per the terms of the Letter of Engagement. Defendants filed an answer with counterclaims on July 25, 2022, denying that any fees were owed to Plaintiff. Defendants moved to compel arbitration. By Decision and Order dated July 18, 2024, this Court denied Defendant's motion because the amount in controversy exceeds $50,000. A note of issue and certificate of readiness was filed on March 18, 2025. Trial was scheduled to commence on May 7, 2025.

On April 6, 2025, Defendants filed a motion seeking various relief, including summary judgment, vacatur of the note of issue pursuant to 22 NYCRR 202.21(e), or, alternatively, leave to amend their answer. Plaintiff cross-moved for summary judgment on Defendants' counterclaims and for leave to amend the complaint pursuant to CPLR 3025 (b). In a Decision and Order dated May 2, 2025, this Court denied Defendants' motion in its entirety. (Doc. 63). Plaintiff's motion for summary judgment dismissing the counterclaims was granted. Specifically, this Court held, "[v]iewing the papers of both parties in a light most favorable to the Defendants, the Court finds that Defendants' negligence and malpractice counterclaims are barred by release and therefore summary judgment is warranted." (id. at 5). The Court further stated:

Defendant Caridi, acting in his individual capacity and on behalf of Defendant SRC Construction Corp., expressly released Plaintiff and its successors from any and all claims arising out of or relating to the prior representation in the New Jersey Action, the same transactions and occurrences at issue in this legal fee action. Defendants cannot revive the negligence and malpractice claims in this action.

(Id. at 6).

Plaintiff now moves in this motion in limine to preclude introduction of any evidence that would tend to prove that Plaintiff was terminated by Defendants for legal malpractice, breach of contract, and/or for cause.

Arguments

Plaintiff argues that any evidence or arguments suggesting the Plaintiff was terminated for cause, for legal malpractice, or for breach of contract should be precluded. First, Plaintiff argues that the General Releases prevent Defendants from raising the issue. Second, Plaintiff argues that Defendants are barred from raising these issues because they are "unpled claims." Finally, Plaintiff argues that the allegations of malpractice are unsubstantiated, unduly prejudicial, and irrelevant.

On the first point, Plaintiff points to the broad language in the General Releases. Plaintiff points out that the meaning of a general release depends on the matter being settled. Plaintiff argues that this release was given explicitly as part of the settlement of the alleged malpractice. Therefore, Plaintiff argues that the General Releases bar any attempts to raise exactly the issues that Defendants seek to raise in this matter, whether as counterclaims or affirmative defenses.

Plaintiff next argues that these purported defenses are untimely and unpled legal causes of action. Plaintiff points out that there was no adjudication of any claim of legal malpractice or breach of contract. Plaintiff argues that allowing Defendant to raise these issues would result in undue prejudice.

Finally, Plaintiff argues that the claims of legal malpractice are irrelevant. Plaintiff argues that at his deposition, Caridi admitted that Plaintiff was not terminated as counsel, but instead chose to step down. Plaintiff argues that the alleged malpractice, if any, only pertains to the claims against Lindemon and Czar, and those claims were resolved. Plaintiff points out that Condon continued for six additional years as Defendants' lawyers in the New Jersey Action after the date of the alleged malpractice. Plaintiff argues that its work prior to October 2017 was crucial to the eventual award of $2,294,074.84 in the arbitration. Plaintiff argues that any claim of malpractice as to the dismissal of Lindemon and Czar is irrelevant as to the fee owed by Defendants for the work Plaintiff performed on Defendants' behalf in the action against ACHA.

In opposition to the motion in limine, Defendants argue that the General Releases are only releases as to affirmative claims, but do not cover any defenses that might be raised. Defendants point out that they executed a one-way release. They argue that it was not limited to any particular subject matter. Defendants argue that Plaintiff is conflating a release of claims, which they acknowledge is provided in the General Releases, from a waiver of the ability to assert a defense. Defendants argue that the releases use standard "boilerplate" language that does not include the word "defense" or "counterclaim" or "set-off." They argue that absent those particular words, the General Release cannot be construed as a clear, contractual waiver of the right to raise the defense of malpractice or termination by cause.

Defendants argue that a legal fee lawsuit cannot be decided without considering the quality of the legal services provided. Defendants point out that an attorney terminated for cause is not entitled to compensation. Defendants argue that even if Plaintiff was not terminated for cause, because he was terminated prior to the completion of services, attorneys' fees should be based on the fair and reasonable value of the services rendered, rather than the contingency agreement. Defendants argue that they should be allowed to introduce evidence to establish that Plaintiff was terminated for cause and evidence that goes to the value of the services provided.

Discussion

The function of a motion in limine is to permit a party to obtain a preliminary order excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting the use of such evidence (see State of New York v Metz, 241 AD2d 192 [1st Dept 1998]). A trial judge has broad discretion over the admissibility of evidence offered at trial (see Radosh v Shipstad, 20 NY2d 504 [1967]). A ruling on a motion in limine constitutes, essentially, an advisory opinion of the trial court, and is not appealable (see Winograd v Price, 21 AD3d 956 [2d Dept 2005]); Gerard v Cahill, 2012 NY Slip Op 30305[U] [Sup Ct Nassau Co 2012] (denying motion in limine that was made in response to statement in Appellate Division order from same action)).

Here, the motion in limine is directed to an entire potential category of evidence: anything tending to establish that Plaintiff committed legal malpractice in the New Jersey Action and anything tending to establish that Defendants discharged Plaintiff for cause. Having dismissed the counterclaim alleging legal malpractice and for cause termination based on the General Releases, this Court must determine whether the General Releases also bar introduction of evidence or argument that puts forth legal malpractice and/or for cause termination as a defense. In other words, do the General Releases bar only an affirmative claim for damages related to the alleged malpractice, or do the General Releases bar any mention of the alleged malpractice in this lawsuit?

A release is a contract, and its interpretation is governed by contract law principles (see Kaminsky v Gamache, 298 AD2d 361 [2d Dept 2002] (citing Mangini v McClurg, 24 NY2d 556, 562 [1969])). A release "that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms" (Alvarez v Amicucci, 82 AD3d 687, 688 [2d Dept 2011]; see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269 [2011]). "Whether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Finally, "[t]he meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given." (Gale v Citicorp, 278 AD2d 197, 197 [2d Dept 2000]).

The Court finds that the language of the General Releases is not ambiguous. The releases refer generally to the matter of SRC Construction Corp of Monroe d/b/a SRC Industries Inc. v. Atlantic City Housing Authority, et al., and release any claims that Defendants ever had against Plaintiff. Therefore, the Court finds that General Releases preclude Defendants from raising the issue of alleged malpractice. Further, defense counsel is prohibited from attempting to adduce proof at trial that Plaintiff was terminated for cause based on any alleged malpractice that occurred.

Preventing Defendants from raising these matters as defenses is required by the General Releases and follows logically from the General Releases. While the General Releases do not explicitly refer to any waiver on Defendants' part of defenses, it would be a mistake if this analysis did not go further. The practical effect of opening the door to Defendants to raise (1) malpractice and/or (2) for cause termination as defenses would result in Defendants attempting to prove those claims. While Defendants, of course, seek to distinguish having released affirmative claims against Plaintiff from retaining defenses in the legal fee litigation, that is a distinction without a difference.

These proposed defenses are, in reality, affirmative claims which would not only result in a prohibited "trial within a trial" but would clearly run afoul of the General Releases whereby Defendants released Plaintiff from all "claims", "controversies" etc. These proposed defenses cannot be said to be anything other than those released "claims" or "controversies." Thus, the General Releases not only protect Plaintiff against the claims being used as swords seeking affirmative relief, but also prevent these claims from being used to shield Defendants in this litigation.

Having previously determined that Defendants' counterclaims alleging malpractice and for cause termination required dismissal, it follows that allowing introduction of evidence attempting to prove these claims must be precluded.

To draw this analysis out a bit further, it is clear that Defendants resolved any claim of malpractice in the context of a negotiation which resulted in the exchange of a payment of $150,000 for the General Releases. There was no determination or admission that malpractice had been committed and the essence of the General Releases was to close the door on that issue. Thus, once Defendants chose to resolve that issue, they foreclosed any opportunity to sue for malpractice either as a plaintiff or in the form of a counterclaim in a fee litigation.

An allegation of malpractice is, of course, often seen as a counterclaim in an attorney fee suit, but having released any such claim, the Defendants may not now attempt to prove a malpractice even as a defense.

Defendants also argue that there was a for cause termination which prevents Plaintiffs from recovering a legal fee. While it is true that under the rule established by the Court of Appeals in Crowley v Wolf, 281 NY59 (1939) when an attorney is justifiably discharged there can be no fee recovery. However, an adjudication is required to determine whether Defendants terminated Plaintiff justifiably or for cause. (Teichner v W & J Holsteins, 64 NY2d 977 (1985)). Here, there has been no such adjudication and when Defendants executed the General Releases they released their entitlement to pursue an adjudication of that issue.

Precluding Defendants from adducing any evidence as to an alleged malpractice, for cause termination or breach of contract will maintain the litigation's focus upon Plaintiff's services provided, measure of damages and any defenses remaining which are not precluded by this Decision and Order.

Therefore, it is

ORDERED that the motion in limine is GRANTED to preclude Defendants from adducing evidence of any alleged malpractice, breach of contract and for cause termination.

Dated: September 15, 2025

New City, New York

HON. KEITH J. CORNELL, A.J.S.C

Keith J. Cornell, J.