NEWMAN v. KALDERON

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Supreme Court, Appellate Term, New York.

Finkelstein NEWMAN, L.L.P., Respondent, v. Kurit KALDERON, Appellant.

Decided: September 27, 2001

PRESENT:  McCOOE, J.P., DAVIS and SUAREZ, JJ. Andrew Lavoott Bluestone, for appellant. Finkelstein Newman, L.L. P., (Barry Gottlieb, Daniel Finkelstein of counsel), respondent pro se.

Order entered October 25, 2000 (Paul G. Feinman, J.) modified by reversing so much thereof as granted partial summary judgment on the cause of action in quantum meruit;  as modified, order affirmed, without costs.

 Plaintiff law firm seeks recovery of fees incurred in the representation of defendant in a landlord-tenant dispute.   The complaint asserts causes of action for breach of contract, account stated, and quantum meruit.   Since it is clear from the record that plaintiff is suing for the outstanding balance on invoices billed in accordance with the parties' retainer agreement, there can be no recovery in quantum meruit (see, Heller, Horowitz & Feit, P.C. v. Stage II Apparel Corp., 270 A.D.2d 58, 704 N.Y.S.2d 240).   Accordingly, the award of partial summary judgment on that cause of action is vacated.

 Defendant's counterclaim for legal malpractice was properly dismissed in the absence of any factual showing that “but for” plaintiff's alleged negligence, defendant would have prevailed in the underlying litigation (see, Levine v. Lacher & Lovell-Taylor, 256 A.D.2d 147, 149, 681 N.Y.S.2d 503).   The alleged “affirmative defenses” were also properly stricken since they amount to no more than denials of the allegations in the complaint upon which plaintiff bears the burden of proof.

PER CURIAM.