Max Marcus Katz PC v. King

DECISION AND ORDER

*1  The defendant herein moves, pursuant to CPLR §§503, 510, and 511, to change the venue of this action from New York County to Bronx County. The plaintiff opposes the motion and cross-moves, pursuant to CPLR §3211(a), to dismiss the defendant’s counterclaims for failure to state a cause of action, and pursuant to CPLR §3211(b), to dismiss the defendant’s first, second, third, fourth, sixth, seventh, eighth, and ninth affirmative defenses. For the reasons set forth herein, the defendant’s motion to change venue is denied, the plaintiff’s motion to dismiss the counterclaims is denied, and the plaintiff’s motion to dismiss the affirmative defenses is granted as to the sixth and ninth affirmative defenses and otherwise denied.BACKGROUNDThe plaintiff, Max Marcus Katz, P.C. (“Katz”), is a law firm. The defendant, Edwin King, is a former client of the plaintiff. Plaintiff’s complaint seeks $21,632.77 plus costs and legal fees in causes of action for breach of contract and account stated. The defendant retained the plaintiff, in 2008, to assist in the sale of a property located at 3269-3273 Third Avenue in the Bronx (the “property”). A contract for sale of the property was executed on February 15, 2011 (Plaintiff’s Exh. A). However, the sale did not go through because an easement on the property was not removed. In February of 2012, the buyer of the property commenced an action seeking specific performance on the contract of sale (see, Summons with Notice, Koplowitz v. King, Plaintiff’s Exh. B). Thereafter, Katz represented Mr. King in an action to extinguish the easement on the property (King v. 3267 3rd Ave. Laundromat Corp., Plaintiff’s Exh. C). The plaintiff was relieved as counsel on the specific performance litigation and easement litigation on or about January 10, 2013, the date that Katz was informed Mr. King had retained substitute counsel. Additionally, Katz represented Mr. King in defending a negligence action filed in June of 2012 (see, Bickram v. The City of New York, Plaintiff’s Exh. D). The plaintiff was granted leave to withdraw as counsel in the negligence action pursuant to the March 6, 2014, decision