Jennifer A. Mendelsohn, appellant-respondent, v Steven B. Ferber, et al., respondents-appellants. v. << (2010)

Argued-April 8, 2010

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated October 6, 2009, as granted those branches of the defendants' motion which were for summary judgment dismissing the first and third causes of action in the amended verified complaint, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the second cause of action in the amended verified complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action to recover damages in the amount of the unearned retainer fees based on the defendants' alleged breach of contract by demonstrating that the plaintiff is neither a party to, nor a third-party beneficiary of, the contracts at issue, i.e., the retainer agreements between the defendants and the subject clients (see East Coast Athletic Club, Inc. v Chicago Tit. Ins. Co., 39 AD3d 461, 463).   In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).   Even assuming, as the plaintiff claims, that her first cause of action is, in fact, one for money had and received, it is still subject to dismissal since the plaintiff failed to allege in the amended verified complaint that the unearned retainer fees at issue belong to her, whether by assignment or otherwise (see State of New York v International Asset Recovery Corp., 56 AD3d 849, 852).   Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action.

Moreover, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the third cause of action to recover, inter alia, damages in the amount of the unearned retainer fees based on the defendants' alleged breach of their fiduciary duty owed to the plaintiff with respect to those funds under Rules of Professional Conduct (22 NYCRR 1200.0) Rule 1.15(a), by demonstrating that the plaintiff failed to allege in the amended verified complaint that the unearned retainer fees belong to her (cf.   Rules of Professional Conduct [22 NYCRR 1200.00] Rule 1.15[a];  see generally Art Capital Group, LLC v Neuhaus, 70 AD3d 605).   In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324).   Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the third cause of action.

The defendants, however, failed to establish their prima facie entitlement to judgment as a matter of law dismissing the second cause of action to recover damages for their alleged breach of the employment agreement by demonstrating an accord and satisfaction (see Altamuro v. Capoccetta, 212 A.D.2d 904, 905).   Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the second cause of action regardless of the sufficiency of the plaintiff's opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324).

RIVERA, J.P., FLORIO, MILLER and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court