Pollack v. Crocker - 660 F. Supp. 1284 (S.D.N.Y. 1987)

Rule:

A motion for summary judgment lies only when there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. The movant may discharge this burden by demonstrating to the court that there is an absence of evidence to support the nonmoving party's case. The nonmoving party then has the burden of coming forward with special facts showing that there is a genuine issue for trial, Fed. R. Civ. P. 56(e), and must do more than simply show that there is some metaphysical doubt as to the material facts. Speculation, conclusory allegations and mere denials are insufficient to raise genuine issues of material fact.

Facts:

Plaintiff attorney Michael B. Pollack and the defendant client Frankie Crocker entered into several fee contracts concerning several different matters of representation. The defendant made only partial payments under the contracts. The defendant also induced plaintiff to release his lien on the defendant’s tax refund in exchange for a check on which the defendant later stopped payment. Plaintiff then filed an action alleging the defendant’s breach of contract, repudiation of a contract, and fraud. Defendant filed a motion for partial summary judgment, and plaintiff attorney filed a cross-motion for summary judgment, in the plaintiff’s action.

Issue:

Should the defendant’s motion for summary judgment be granted?

Answer:

No.

Conclusion:

The court granted in part and denied in part both the parties’ motion for summary judgment. The court granted summary judgment to the client as to the second claim and as to consequential damages in the third and fourth claims. The court held that the summary judgment in plaintiff’s favor was appropriate on the issue of the rate of payment where one of the contracts clearly stated the rate to be applied to all past, present and future representation of the client; on the other, the summary judgment in defendant’s favor was proper on the consequential damages claim where the plaintiff was limited to the recovery of interest on the amounts owed by the defendant under their contracts, however, summary judgment was not warranted on plaintiff’s fraud claim where he set forth facts supporting the defendant’s breach of a legal duty existing independent of the parties' contractual relations.