Summary
discussing inconsistent contract-related theories of recovery under New York law
Summary of this case from Gensler v. Sanolfi-AventisOpinion
April 11, 1995
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Defendants note that any retainer agreement, any discussion concerning the Surrogate's Court matter in which plaintiff represented the individual and corporate defendants named herein, and any billing involved only defendant Michele Beiny Harkins, in her individual capacity, and argue that contract claims for the legal fees therefore cannot be maintained as against the remaining defendants. However, plaintiff received written authorizations from defendants, Michele Beiny Harkins having signed certain of the authorizations in her capacity as a director or principal of the business entities, submitted answers on behalf of all defendants without objection, and maintained the Surrogate's Court matter in the name of all the defendants without objection, all of which created a presumption of an attorney-client relationship (see, Cooke v Laidlaw Adams Peck, 126 A.D.2d 453, 455), and, at the least, an implied promise to pay for services performed (Paulsen v Halpin, 74 A.D.2d 990, 991), notwithstanding the absence of a formal retainer agreement including all of the parties (see, Rann v Lerner, 160 A.D.2d 922, 923). The cause of action for quantum meruit was also properly sustained. That plaintiff might be ultimately precluded from recovering against each defendant under theories of both breach of contract and quantum meruit (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 389), does not preclude her from pleading both in the alternative. However, the fifth cause of action for fraud and misrepresentation should have been dismissed, the allegations contained therein being essentially the same as those relating to the breach of contract cause of action (see, Mastropieri v Solmar Constr. Co., 159 A.D.2d 698, 700), and thus not independently actionable (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., supra; Eastman Kodak Co. v Roopak Enters., 202 A.D.2d 220). Nor are allegations claiming only unfulfilled promissory expectations as to future performance actionable (Chimento Co. v Banco Popular, 208 A.D.2d 385). We have considered defendants' remaining contentions and find them to be without merit.
Concur — Wallach, J.P., Asch, Nardelli, Tom and Mazzarelli, JJ.