Not Kosher

A claim for legal fees was rejected on appeal to the New York Appellate Division for the First Judicial Department

We affirm dismissal of the breach of contract claim, but on different grounds; namely, that the claim is barred by the statute of frauds. The unpaid legal fees at issue –for which plaintiff claims Katz agreed to be personally liable – were incurred in connection with plaintiff’s representation of defendant Kosher Sports, Inc. (KSI) in the Queens Ballpark Company, LLC (QBC) action. On appeal, even plaintiff characterizes this case as an effort to enforce an agreement “to pay for legal services provided to another,” namely, KSI. General Obligations Law § 5-701 (a)(2) requires that any “promise to answer for the debt . . . of another” be in writing and signed by the party to be charged therewith; however, plaintiff never produced a retainer agreement signed by Katz (see Parma Tile Mosaic & Marble Co. v Estate of Short, 87 NY2d 524, 527 [1996]; Rosenheck v Calcam Assoc., 233 AD2d 553, 554 [3d Dept 1996]). While plaintiff claims that this case does not involve an agreement to answer for the debt of another, and instead concerns an “original and primary” obligation owed to him by Katz, but the cases he cites in support are inapposite, either because they involved express acknowledgements by defendants that their obligations were “joint and several,” a factor absent from this case.

No basis to enforce fee agreement

Even if Katz had signed the retainer agreement, or whether upon application of the missing witness rule, it could be inferred that he did (e.g. Matter of Nassau Co. Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]), we would still affirm, as the retainer agreement, which included a single signature line for Katz, is inadequate for purposes of imposing personal liability upon him.

(Mike Frisch)