Preview
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------------------------------------------------X
CHRISTOPHER LOEB, Index No.: 608624/2023
Plaintiff, AFFIRMATION
IN OPPOSITION TO
-against- CROSS-MOTION
AND REPLY
BARKET EPSTEIN KEARON ALDEA & LOTURCO,
LLP, BRUCE A. BARKET, and DAVID J. AYRES,
Defendants.
----------------------------------------------------------------------X
DAVID BLOOM, ESQ., an attorney duly admitted to practice law in the courts of the
State of New York, hereby affirms the following, pursuant to the penalties of perjury:
1. Your Affirmant is a partner of KAUFMAN BORGEEST & RYAN LLP,
attorneys for defendants BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP (“the
Barket Firm”), BRUCE A. BARKET (“Barket”) and DAVID J. AYRES (“Ayres”)
(collectively, “Defendants”), in the above-captioned matter, and as such, is fully familiar with all
of the facts and circumstances as hereinafter set forth.
2. This Affirmation is executed upon information and belief, the sources of which
are the files and records maintained by the law offices of KAUFMAN BORGEEST & RYAN
LLP pertaining to this matter.
3. This Affirmation is respectfully submitted in opposition to Plaintiff’s cross-
motion for sanctions, and in further support of Defendants’ motion to dismiss.
4. This case embodies the phrase “no good deed goes unpunished”. Plaintiff
Christopher Loeb (“Plaintiff” or “Loeb”) is a disgruntled, and frankly, a very disturbed, former
client of the Barket Firm, a reputable law firm that went to great lengths to try to protect Loeb
1
9373262
1 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
from harming himself. Plaintiff either has no memory of what actually transpired in the
underlying matter, or worse, is lying to this Court to try to avoid being sanctioned.
PROCEDURAL HISTORY
5. On April 4, 2023, over four years after the settlement of the underlying federal
civil rights action (Christopher Loeb v. Suffolk County, et al., Eastern District of New York Case
No. 2:15-cv-00578-JS-GXB) (“the underlying action”), and over three years after the attorney-
client relationship ended, Plaintiff commenced this action against his former attorneys seeking to
recover monetary damages for: (1) breach of contract; (2) conversion; (3) fraud; (4) unjust
enrichment; and (5) purported violations of New York Judiciary Law § 487. Plaintiff alleged
that he did not authorize the settlement disbursements and that the Defendants withheld records
of the disbursements (NYSCEF Doc. 2).
6. Prior to the commencement of this action, in September 2022, Plaintiff sought
documentation from the Barket Firm relating to the disbursements made in 2018, including
copies of the applicable retainer agreement, settlement checks, disbursement checks, and written
authorizations executed by Loeb approving the disbursements (NYSCEF Doc. 13). Ayres
furnished the initially requested documents and information on November 1, 2022 (NYSCEF
Doc. 14), including: the parties’ Retainer Agreement (NYSCEF Doc. 15); copies of the
settlement checks (NYSCEF Doc. 16); the signed disbursement statements (NYSCEF Doc. 17);
and the client IOLA Fund Activity report (NYSCEF Doc. 18) (these items were redacted to
maintain the confidentiality of the settlement).
7. On November 1, 2022, Plaintiff’s counsel, Christopher Cassar, Esq., demanded
additional records (NYSCEF Doc. 19). On November 3, 2022, Ayres emailed Mr. Cassar
acknowledging receipt of the itemized list of requested documents and advised that the Barket
Firm will seek compensation for the considerable amount of time that had already been spent
2
9373262
2 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
complying with the initial requests and for the additional time and effort needed to assemble and
produce the voluminous records (NYSCEF Doc. 20).
8. On November 14, 2022, the Barket Firm issued Invoice # 4739 to Plaintiff in the
amount of $13,526.25 for the extensive work performed in assembling, reviewing, producing,
and responding to Plaintiff’s onerous document requests. The invoice reflects that it took nearly
two months to complete these tasks (NYSCEF Doc. 32). Plaintiff refused to pay the invoice, and
this lawsuit ensued.
9. Defendants appeared and instituted a pre-answer motion to dismiss. Defendants
fully established their entitled to dismissal based upon Plaintiff’s failure to state any viable
claims upon which relief may be granted, the overwhelming documentary evidence utterly
refuting Plaintiff’s false accusations, and the expiration of the three-year statute of limitations
applicable to the causes of action for conversion and unjust enrichment. Defendants also
demonstrated that costs, sanctions, and attorney’s fees should be imposed upon Plaintiff or his
attorney, Mr. Cassar, for commencing this action in bad faith. Defendants were well within their
rights to charge their former client for the onerous task of assembling and providing the
voluminous records requested by Plaintiff concerning the settlement disbursements. Plaintiff
filed this suit for no reason other than to harass and maliciously injure his former attorneys and
to force them to furnish the records without compensation. Such conduct is frivolous and meets
the criteria for the imposition of costs, sanctions, and attorney’s fees pursuant to 22 NYCRR
130-1.1(a).
10. Plaintiff now opposes the dismissal motion and, without any legitimate basis in
fact or law, simultaneously cross-moves for sanctions. Loeb’s opposing affidavits merely
rehashed the conclusory allegations contained in his Complaint that Defendants lacked authority
to disburse the settlement funds, without offering any new factual allegations to suggest that
3
9373262
3 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
Defendants engaged in fraud or deceit, breached the Retainer Agreement, unlawfully converted
the settlement funds, or was unjustly enriched. Plaintiff’s opposition thus failed to remedy the
glaring pleading defects in this case.
FACTS
11. This Court is respectfully referred to the Affidavit of the Hon. David J. Ayres,
dated June 27, 2023 (NYSCEF Doc. 12) and the Affidavit of Bruce A. Barket, Esq. dated June
26, 2023 (NYSCEF Doc. 23), along with the exhibits annexed thereto, for a detailed recitation of
the facts and circumstances surrounding this matter. The following facts are well-supported by
Defendants’ submissions.
12. On April 9, 2014, Loeb entered into a Retainer Agreement with the Barket Firm
to pursue federal civil rights claims against Suffolk County and other police officials. The
Retainer Agreement provided that, if there is no recovery in the underlying action, the Barket
Firm would receive no legal fee but Loeb would still be responsible for reimbursing the Barket
Firm attorneys for disbursements. In the event of a recovery, the Barket Firm was entitled to
receive the greater of legal fees awarded by the court or one-third of the net recovery. Pursuant
to the Retainer Agreement, any liens or disbursements expended by the Barket Firm on behalf of
Loeb or by Loeb directly, any assignment of claims, or any other debts to be paid from the
recovery of settlement, shall not be deducted from the net recovery for purposes of calculating
the legal fee (NYSCEF Doc. 24, ¶ 2).
13. The Retainer Agreement also authorized the Barket Firm to receive the proceeds
of any settlement in the underlying action and granted the Barket Firm Power of Attorney to
endorse any checks on his behalf for purposes of deposing the checks and collecting legal fees
(NYSCEF Doc. 24, ¶ 4).
4
9373262
4 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
14. Critically, the Retainer Agreement provided that the Barket Firm may advance,
but that Loeb shall be responsible for, payment of all disbursements for expenses, including, but
not limited to, reasonable and necessary expenses incurred on behalf of Loeb in connection with
the representation. The Barket Firm had the contractual right and option, at any time, to require
Loeb to advance expenses needed to continue prosecuting the matter, and if Loeb failed or
refused to pay or advance such expenses upon request, the Barket Firm had the right to stop all
work and to withdraw as counsel (NYSCEF Doc. 24, ¶ 5).
15. Loeb admits that he knowingly and voluntarily entered into the Retainer
Agreement. Consequently, Loeb is precluded from challenging the contractual authority
expressly granted by him via the Retainer Agreement allowing the Barket Firm to advance
payment of all disbursements on his behalf and be reimbursed by Loeb for same.
16. Loeb also contends, for the first time in opposition to Defendants’ motion to
dismiss, that the Defendants “overcharged” him for services and other fees, that he never
approved various litigation expenses, and that he did not receive any invoices from the Barket
Firm. The claims fail because the Retainer Agreement contained an enforceable arbitration
clause requiring any fee disputes arising from the legal services to be resolved via arbitration
(NYSCEF Doc. 24, ¶ 7).
17. Rather than citing any particular provision of the Retainer Agreement he believes
was breached, Plaintiff in opposition merely takes issue with certain terms that were purportedly
omitted from the Retainer Agreement. For example, Loeb incorrectly asserts that the Retainer
Agreement failed to advise him of the right to cancel the Retainer Agreement and discharge his
attorneys at any time, and failed to address how the attorney’s fee would be determined in the
event of such cancellation and discharge. These new allegations are without merit because the
Retainer Agreement contains language that the Barket Firm may indeed be discharged by the
5
9373262
5 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
client and that, if discharged for cause, the Barket Firm shall be entitled to compensation under
the specific fee structure plus reimbursement of costs and expenses notwithstanding the client’s
discharge of the Barket Firm and substitution of another lawyer prior to receipt of any recovery
(NYSCEF Doc. 24, ¶ 9).
18. Plaintiff also misguidedly surmises that the Barket Firm did not file a
retainer/closing statement with the Office of Court Administration (OCA). 22 NYCRR 691.20
requires a retainer and closing statement to be filed “in connection with any action or claim for
damages for personal injury or for property damages, or for death or loss of services resulting
from personal injuries, due to negligence or any type of malpractice …”. The Barket Firm was
not required to file a retainer or closing statement with OCA because the underlying action did
not involve any claims of negligence or malpractice. The underlying action was brought solely
under federal statutory law based upon deprivations of Loeb’s civil rights under 42 U.S.C. §
1983; a true and correct copy of the complaint filed on behalf of Loeb in the underlying federal
civil rights action is annexed hereto as Exhibit “A”. Accordingly, in the absence of any
common law claims of negligence or malpractice, compliance with 22 NYCRR 691.20 was not
required.
19. In February 2018, Suffolk County agreed to settle the claims against it in the
underlying action in the amount of $1,500,000.00. Plaintiff, in opposition, contends that the
Barket Firm secured the monetary settlement “without [his] consent and over [his] objection”.
This allegation is demonstrably false. On February 6, 2018, Loeb executed a notarized General
Release, thereby agreeing to the settlement; a true and correct copy of the General Release that
was attached to the judicial approval of the settlement is annexed hereto as Exhibit “B”.
20. The foregoing exhibits are properly submitted in opposition to Plaintiff’s cross-
motion for sanctions, and in response to the brand-new allegations of wrongdoing asserted by
6
9373262
6 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
Loeb for the first time in opposition to the Defendants’ motion to dismiss. See Central Mortg.
Co. v. Jahnsen, 150 A.D.3d 661, 56 N.Y.S.3d 107 (2nd Dept. 2017); Wells Fargo Bank, N.A. v.
Marchione, 69 A.D.3d 204, 887 N.Y.S.2d 615 (2nd Dept. 2009).
21. Suffolk County unilaterally deducted $21,541.92 from the $1,500,000.00
settlement amount, pursuant to a Department of Social Services (DSS) lien (NYSCEF Doc. 25).
Loeb avers that he did not approve the DSS lien. However, the Barket Firm had no control over
the DSS lien nor was Loeb’s approval necessary for Suffolk County to effectuate that deduction.
Although Loeb denies approving the settlement and payment of the DSS lien, Loeb does not and
cannot deny the fact that he executed a disbursement calculations worksheet, dated March 1,
2018, and thereby confirmed his acknowledgement and authorization of these disbursements
arising from the Suffolk County settlement including the Barket Firm’s legal fee of $499,999.50,
i.e. one-third of the net recovery from the Suffolk County settlement, pursuant to the fee
structure set forth in the Retainer Agreement (NYSCEF Doc. 26).
22. The Barket Firm also secured a settlement from one of the individually-named
public official defendants in the underlying action, the terms of which are confidential as per the
settlement agreement. From that undisclosed amount, $5,524.85 was deducted and reimbursed
to the Barket Firm for litigation expenses. The Barket Firm also received a legal fee in
accordance with the agreed upon fee structure. A payoff in the amount of $31,108.27 was issued
to Necessity Funding Partners, LLC, pursuant to a Legal Funding Agreement previously entered
into by Loeb (NYSCEF Doc. 27). Once again, Loeb does not and cannot deny the fact that, on
February 26, 2018, he executed a disbursement calculations worksheet for this confidential
settlement and thus confirmed his acknowledged and agreement of these disbursements arising
from this confidential settlement (NYSCEF Doc. 26). Despite having revealed the terms of this
confidential settlement in his Complaint and accusing Defendants of wrongfully
7
9373262
7 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
withholding/disbursing money from that confidential settlement (NYSCEF Doc. 2, ¶ 14), Loeb
did not utter a single word about this settlement in his opposing affidavits.
23. Loeb voluntarily gave his permission to the Barket Firm to maintain the net
settlement funds in its client IOLA account until Loeb decided what he wanted to do with the
money. The Barket Firm agreed to do so, not for nefarious purpose, but strictly for Loeb’s own
benefit and out of concern for Loeb’s well-being and spending habits due to his criminal history
and struggles with drug addiction (NYSCEF Doc. 23, ¶ 10-11).
24. In the months that followed the settlement of the underlying action, with Loeb’s
permission, the Barket Firm maintained the settlement funds and effectively acted as Loeb’s
bookkeeper and financial manager, free of charge, having issued checks and effectuated wire
transfers for various disbursements and expenditures, all of which were for Loeb’s benefit.
These included: bail postings (NYSCEF Doc. 12, ¶ 8-9; NYSCEF Doc. 22, pp. 35-40, 77-97,
196-200); new retainer agreements with the Barket Firm for representation and handling of
Loeb’s other criminal matters, and legal fees and expenses related thereto (NYSCEF Doc. 22, pp.
41-50, 65-76, 201-247); Loeb’s airline tickets, hotel stays and admission to a Florida drug
rehabilitation facility in (NYSCEF Doc. 22, pp. 51-64); money given to Loeb’s brother
(NYSCEF Doc. 22, pp. 169-174); and reimbursement for out-of-pocket expenses. (NYSCEF
Doc. 22, pp. 98-168, 175-191). All disbursements were made with Loeb’s knowledge and
approval (NYSCEF Doc. 12, ¶ 9; NYSCEF Doc. 22, pp. 4, 9, 13, 16, 21-22, 24, 28, 33, 37, 43,
53, 58, 67, 76, 79, 95-96, 103, 124-125, 170-174, 195, 203, 231, 240, 250; NYSCEF Doc. 23, ¶
11; NYSCEF Doc. 29).
25. Loeb now conveniently denies that he signed the check request form dated March
22, 2018 which authorized the issuance of two checks for the sum total of $30,000—check
#1353 in the amount of $15,000 for a retainer in connection with a new criminal matter and
8
9373262
8 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
check #1354 in the amount $15,000 for bail payment (NYSCEF Doc. 22, pp. 37, 43). However,
Loeb does not accuse any particular defendant of forging his signature, nor can he establish any
ascertainable damages resulting from the issuance of these checks. These checks were issued
solely for Loeb’s benefit. Contrary to Loeb’s false accusations, Loeb did in fact enter into a new
retainer agreement for this criminal matter (NYSCEF Doc. 22, pp. 72-76); the new retainer
agreement expressly provided for the $15,000 retainer payment and set forth an hourly fee
structure, disproving the notion that Defendants promised to represent Loeb free of charge.
Moreover, Defendants furnished the bail receipt (NYSCEF Doc. 22, p. 39), as well as a copy of
check #10058 dated March 19, 2019 payable to Loeb in the amount of $15,000 with a memo
indicating the return of bail and signed/negotiated by Loeb (NYSCEF Doc. 22, p. 40).
26. Loeb also denies that he signed the check request form dated March 28, 2018
which authorized a reimbursement to the Barket Firm in the amount of $1,000 for an advance
payment made by the Barket Firm on Loeb’s behalf to cover a deposit for Loeb’s admission to
the Beachway drug rehabilitation facility in Florida (NYSCEF Doc. 22, p. 53). Loeb further
denies signing the check request form dated April 5, 2018 which authorized the issuance of two
checks, totaling $1,817.11, to reimburse the Barket Firm for advance payments made by on
Loeb’s behalf to cover the expense of Loeb’s hotel stay and his airline tickets to travel to the
Florida drug rehab facility (NYSCEF Doc. 22, p. 58). Once again, Loeb does not accuse any
particular defendant of forging his signature for these expenditures, nor can he show that he
suffered any ascertainable damages as these advance payments were clearly made for Loeb’s
benefit (NYSCEF Doc. 22, pp. 51-64).
27. Next, Loeb asserts that Defendants wrongfully converted a $19,000 payment for
his bail in April 2018. The evidence shows that, on April 17, 2018, a check in the amount of
$19,000 was issued to Ayres for the purpose of cashing and posting Loeb’s bail in connection
9
9373262
9 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
with his subsequent Suffolk Criminal Contempt matter. Ayres brought that check directly to
Signature Bank to be cashed and promptly posted that exact amount in cash to Suffolk County
that same day. Suffolk County returned the checks, in the total amount of $19,000. That money
was then put into the client IOLA account immediately. A check payable to Loeb in the amount
of $19,000 had been issued, but Loeb confirmed that he never deposited that check. Loeb
approved a stop payment for that check, and he agreed to apply the $19,000 to a new retainer
agreement with the Barket Firm for legal representation involving this latest criminal matter
(NYSCEF Doc. 12, ¶ 10; NYSCEF Doc. 22, pp. 77-97). Loeb does not dispute signing these
authorizations or the subsequent retainer agreement dated April 16, 2019. Rather, Loeb vaguely
asserts that he was “coerced” into signing these documents because he was incarcerated and that
Defendants threatened to stop working on his case. However, Loeb clearly did not have to retain
the Barket Firm to represent him in this criminal matter and could have hired another attorney if
he did not wish to sign the new retainer with the Barket Firm.
28. According to Loeb’s opposing affidavits, in an email dated July 12, 2018, Loeb
voiced his displeasure with the Barket Firm’s holding of the settlement funds for various reasons.
In that same email, Loeb authorized (but did not instruct) the Barket Firm to release the
remaining net settlement funds to his bank account. However, Loeb’s email confirmed that he,
in his own words, “voluntarily gave permission” to the Barket Firm to hold onto the settlement
funds until he decided what he wanted to do with the money (NYSCEF Doc. 28). Loeb further
acquiesced to the voluntary arrangement as evidenced by a follow up email from Loeb to the
Barket Firm on August 24, 2018 wherein he requested that his weekly allowance be transferred
to his account (NYSCEF Doc. 28).
29. As of August 30, 2018, after all authorized disbursements made on Loeb’s behalf
through that date, there was a total of $680,802.63 remaining in the client IOLA account
10
9373262
10 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
(NYSCEF Doc. 30). On August 31, 2018, Loeb instructed the Barket Firm to transfer the
settlement funds to another law firm (Abrams Fensterman) but authorized the Barket Firm to
retain a portion of the remaining funds for payment of outstanding expenses that the Barket Firm
paid on his behalf as well as for future legal fees in connection with the Barket Firm’s handling
of Loeb’s other pending criminal matters (NYSCEF Doc. 22, pp. 192-195; NYSCEF Doc. 31).
On September 4, 2018, pursuant to Loeb’s authorization, the Barket Firm wired $630,000 to
Abrams Fensterman (NYSCEF Doc. 32).
30. On November 13, 2018, the Barket Firm issued a check payable to cash in the
amount of $3,000 for the purpose of posting Loeb’s bail in yet another criminal matter. Contrary
to Loeb’s assertions, this amount was indeed deposited into Loeb’s IOLA account (NYSCEF
Doc. 22, pp. 196-200).
31. On December 21, 2018, $11,458.49 was paid to the Barket Firm for
reimbursement of expenses incurred during August 2018 as reflected in Invoice #12449.
Although Loeb denies having signed the check request authorization form, he once again does
not accuse any particular defendant of forging his signature, nor can he demonstrate damages
resulting therefrom as these advance payments were made for Loeb’s benefit to cover his hotel
charges, transportation expenses, and cash allowances (NYSCEF Doc. 22, pp. 201-237).
32. On December 31, 2018, the Barket Firm was paid a total of $5,445.00 for legal
fees in connection with Invoice #12425 and Invoice #12426 (NYSCEF Doc. 33). Loeb denies
having signed the check request authorization form, but once again he does not accuse any
particular defendant of forging his signature, nor can he demonstrate damages resulting
therefrom as this check covered the expense of legal services provided by the Barket Firm to
Loeb, for his benefit, in connection with the criminal matter for which the Barket Firm was
retained (NYSCEF Doc. 22, pp. 237-247).
11
9373262
11 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
33. On January 3, 2019, the remaining balance, which by then totaled $31,076.14,
was returned to Loeb (NYSCEF Doc. 34). Loeb denies having signed the check request
authorization form, but once again does not accuse any particular defendant of forging his
signature, nor can he demonstrate damages resulting therefrom as this check was issued for no
reason other than to return the remaining balance that was owed to him (NYSCEF Doc. 22, pp.
248-250).
POINT I
LOEB’S OPPOSING AFFIDAVITS FAILED TO OFFER ANY
NEW FACTUAL ALLEGATIONS TO CURE HIS
INSUFFICIENTLY PLEADED CAUSES OF ACTION.__________
34. On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally
construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff
the benefit of every favorable inference, and determine only whether the facts as alleged fit
within any cognizable legal theory. See Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972
(1994). The court may consider affidavits submitted by the plaintiff to remedy pleading defects.
See Dinger v. Cefola, 133 A.D.3d 816, 20 N.Y.S.3d 416 (2nd Dept. 2015). However, bare legal
conclusions and factual claims which are flatly contradicted by the record are not presumed to be
true. See Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 843 N.Y.S.2d 104 (2nd
Dept. 2007). Here, Loeb’s affidavits are replete with baseless inflammatory accusations of
wrongdoing which amount to bare legal conclusions and are plainly refuted by the records.
35. In order to sustain a claim for breach of contract, the plaintiff must plead “the
existence of a contract, the plaintiff’s performance thereunder, the defendant's breach thereof,
and resulting damages.” Harris v. Seward Park Housing Corp., 79 A.D.3d 425, 913 N.Y.S.2d
161 (1st Dept. 2010). Plaintiff is required to allege “in non-conclusory language …, the essential
terms of the parties’ … contract, including those specific provisions of the contract upon which
12
9373262
12 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
liability is predicated, whether the alleged agreement was, in fact, written or oral, and the rate of
compensation. Caniglia v. Chicago Tribune-New York News Syndicate, Inc., 204 A.D.2d 233,
612 N.Y.S.2d 146 (1st Dept. 1994). Much like his Complaint, Loeb’s affidavits failed to set forth
the terms of the retainer agreement that were allegedly breached by Defendants, how such terms
were breached, or damages caused by any breach.
36. To properly plead a cause of action for fraud, plaintiff must allege that (1)
defendant made a false representation of fact, (2) defendant had knowledge of the falsity, (3) the
misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable
reliance on the part of the plaintiff, and (5) plaintiff was injured by the reliance. See Eurycleia
Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 883 N.Y.S.2d 147 (2009); Lama Holding
Co. v. Smith Barney, 88 N.Y.2d 413, 646 N.Y.S.2d 76 (1996); Mariano v. Fiorvante, 118 A.D.3d
961, 989 N.Y.S.2d 55 (2nd Dept. 2014). In addition, CPLR 3016(b) requires that where, as here,
a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust,
or undue influence, the circumstances constituting the wrong shall be stated in detail. See
Oppedisano v. D’Agostino, 196 A.D.3d 497, 151 N.Y.S.3d 150 (2021); Saul v. Cahan, 153
A.D.3d 947, 61 N.Y.S.3d 265 (2nd Dept. 2017) (affirming the dismissal of a cause of action
alleging fraud which contained only bare and conclusory allegations, without any supporting
detail, and thus failed to satisfy the requirements of CPLR 3016(b)).
37. Likewise, a plaintiff seeking to recover damages under Judiciary Law § 487
requires must plead and prove “egregious conduct or a chronic and extreme pattern of behavior”
on the part of the defendant attorney that caused damages. See Freeman v. Brecher, 155 A.D.3d
453, 64 N.Y.S.3d 13 (1st Dept. 2017); Schiller v. Bender, Burrows & Rosenthal, LLP, 116
A.D.3d 756, 983 N.Y.S.2d 594 (2nd Dept. 2014). Allegations regarding an act of deceit or intent
to deceive must be stated with particularity. See Bill Birds, Inc. v. Stein Law Firm, P.C., 164
13
9373262
13 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
A.D.3d 635, 82 N.Y.S.3d 91 (2nd Dept. 2018). The Courts of this State have repeatedly
dismissed claims brought under the Judiciary Law where, as here, the allegations against the
attorney as to scienter and damages are conclusory and factually insufficient. See, e.g., New
York Tile Wholesale Corp. v. Thomas Fatato Realty Corp., 153 A.D.3d 1351, 61 N.Y.S.3d 136
(2nd Dept. 2017); Putnam County Temple & Jewish Center, Inc. v. Rhinebeck Savings Bank, 87
A.D.3d 1118, 930 N.Y.S.2d 42 (2nd Dept. 2011).
38. In this case, the causes of action for fraud and Judiciary Law § 487 both fail
because the Complaint fails to satisfy the heightened pleading standard under CPLR 3016(b),
and Loeb’s opposing affidavits alleged no additional facts to avoid dismissal. Neither the
Complaint nor Loeb’s opposing affidavits alleged any false representation of fact knowingly
made by these Defendants. Loeb failed to explain how any statements were in any way
untruthful. Loeb likewise failed to plead justifiable reliance on any misrepresentation or material
omissions. Loeb’s submissions are devoid of any particular allegations of a chronic or extreme
pattern of deceitful behavior. At a minimum, Loeb failed to plead and will never be able to
prove actual, ascertainable damages resulting from such fraud or deceit.
39. Plaintiff fared no better with his non-viable claim for conversion. In order to
succeed on a cause of action to recover damages for conversion, Plaintiff must show: (1) legal
ownership or an immediate right of possession to a specific identifiable thing; and (2) that the
defendant exercised an unauthorized dominion over the thing in question to the exclusion of the
plaintiff's right. Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d 822, 6
N.Y.S.3d 65 (2nd Dept. 2015). “The tort of conversion is established when one who owns and
has a right to possession of personal property proves that the property is in the unauthorized
possession of another who has acted to exclude the rights of the owner.” Republic of Haiti v.
Duvalier, 211 A.D.2d 379, 626 N.Y.S.2d 472 (1st Dept. 1995).
14
9373262
14 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
40. Here, Loeb’s Complaint and opposing affidavits contain no factual allegations
that he had legal ownership over or an immediate right of possession to the entirety of the
settlement funds recovered by the Barket Firm his behalf or that Defendants exercised
unauthorized dominion of the settlement to the exclusion of Plaintiff’s rights. Any such claim is
belied by Loeb’s admission that the parties entered into a Retainer Agreement that gave the
Barket Firm the contractual right to a contingency fee in the amount of one-third of the amount
recovered in the underlying federal civil rights action. Alternatively, the conversion claim must
be dismissed as duplicative of the breach of contract claim, as the conversion claim is predicated
on the alleged breach of the Retainer Agreement and Plaintiff alleged no facts that would give
rise to tort liability. See Johnson v. Cestone, 162 A.D.3d 526, 80 N.Y.S.3d 15 (1st Dept. 2018).
41. An action for restitution based on unjust enrichment requires the plaintiff to plead
and prove that: (1) defendant received money, property or services belonging to or provided by
the plaintiff; (2) defendant benefited from the receipt of the money, property or services; and (3)
under principles of equity and good conscience, defendant should not be permitted to retain the
money or property or should be required to pay for the services. Cohn v. Rothman-Goodman
Management Corp., 155 A.D.2d 579, 547 N.Y.S.2d 881 (2nd Dept. 1989); Wiener v. Lazard
Freres & Co., 241 A.D.2d 114, 672 N.Y.S.2d 8 (1st Dept. 1998). Here, the Complaint failed to
sufficiently plead that Defendants received money or property that belonged to Loeb, that
Defendants benefited from the receipt of money or property rightfully owned by Loeb, or that
Defendants were unjustly enriched thereby. The Complaint also failed to allege that equity and
good conscience require the return of all disbursements, expenses, and legal fees paid to
Defendants during the course of the underlying representation. Loeb’s opposing affidavits failed
to cure these defects.
15
9373262
15 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
42. Moreover, the unjust enrichment claim fails because the dispute over the
disbursements and the Barket Firm’s fees/expenses is governed by the Retainer Agreement. The
existence of a valid and enforceable written contract governing a particular subject matter precludes
recovery in quasi-contract or unjust enrichment for events arising out of the same subject matter.
Cox v. NAP Const. Co., Inc., 10 N.Y.3d 592, 861 N.Y.S.2d 238 (2008); Clark-Fitzpatrick, Inc. v.
Long Island R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653 (1987); Ashwood Capital, Inc. v. OTG
Management, Inc., 99 A.D.3d 1, 948 N.Y.S.2d 292 (1st Dept. 2012) (holding that only where the
contract does not cover the dispute at issue may a plaintiff proceed upon a quasi-contract theory of
unjust enrichment); Cohen v. Nassau Educators Federal Credit Union, 37 A.D.3d 751, 832
N.Y.S.2d 50 (2nd Dept. 2007) (holding that the exercise of a right accorded by a contract cannot
give rise to a claim for unjust enrichment).
43. Lastly, Plaintiff made no attempt to salvage his claims against Ayres through
either a fact-based or legal argument. Ayres established that he was not involved in the handling
of Loeb’s disbursements as he had no signatory authority over the client IOLA account or any
other Barket Firm account for the purposes of deposits or withdrawals (NYSCEF Doc. 12, ¶ 11).
Plaintiff, in opposition, did not brief or address this point at all. Thus, all claims against Ayres
must be dismissed as abandoned and waived. See Kane v. Triborough Bridge & Tunnel
Authority, 8 A.D.3d 239, 778 N.Y.S.2d 52 (2nd Dept. 2004).
POINT II
THE DOCUMENTARY EVIDENCE SHOWS THAT LOEB
AUTHORIZED ALL DISBURSEMENTS AND LEGAL FEES,
AND ANY DISPUTES ARISING THEREFROM ARE SUBJECT
TO MANDATORY ARBITRATION PURSUANT TO THE
PARTIES’ RETAINER AGREEMENT.________________________
44. A motion to dismiss on the basis of CPLR 3211(a)(1) may be granted where “the
documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a
16
9373262
16 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
defense as a matter of law”. See Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314,
746 N.Y.S.2d 858 (2002). Where a defense is based on documentary evidence proving that the
plaintiff does not have and/or cannot prove a viable cause of action, the claim must be dismissed.
See Kaufman v. I.B.M. Corp., 61 N.Y.2d 930, 474 N.Y.S.2d 721 (1984); Endless Ocean, LLC v.
Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 979 N.Y.S.2d 84 (2nd
Dept. 2014). Allegations contradicted by documentation do not suffice. See Dweck Law Firm,
LLP v. Mann, 283 A.D.2d 292, 727 N.Y.S.2d 58 (1st Dept. 2001).
45. The documentary evidence shows that the Barket Firm was to be paid a
contingency fee in the amount of one-third of any settlement recovery in the underlying action.
The Retainer Agreement required Loeb to reimburse the Barket Firm for any expenses advanced
by the firm (NYSCEF Doc. 23, ¶ 6, NYSCEF Doc. 24). Loeb acknowledged his approval of the
disbursements from the settlements recovered in the underlying action (NYSCEF Doc. 23, ¶ 8-9;
NYSCEF Docs. 26, 27). Thereafter, with Loeb’s permission, the Barket Firm held the settlement
funds in its client IOLA account until Loeb decided what he wanted to do with the money
(NYSCEF Doc. 23, ¶ 10-12, NYSCEF Docs. 28-30); Loeb cites no evidence to support his new
accusation of commingling of funds. Loeb authorized each and every disbursement and
expenditure (NYSCEF Doc. 12, ¶ 9; NYSCEF Doc. 22, pp. 4, 9, 13, 16, 21-22, 24, 28, 33, 37,
43, 53, 58, 67, 76, 79, 95-96, 103, 124-125, 170-174, 195, 203, 231, 240, 250; NYSCEF Doc.
23, ¶ 13-17; NYSCEF Docs. 31-33). The remaining balance was returned to Loeb on January 3,
2019, after which the Defendants were no longer in possession or control of any of the settlement
funds (NYSCEF Doc. 23, ¶ 16; NYSCEF Doc. 34).
46. Loeb cannot avoid the consequences of his signatures. The Courts of this State
have consistently held that a party who signs a document is conclusively bound by its terms
absent a valid excuse for having failed to read it. See, e.g., Abdulatif Abdulayev v. Yadgarov,
17
9373262
17 of 24
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023
105 A.D.3d 877, 964 N.Y.S.2d 545 (2nd Dept. 2013); Hutchinson Burger, Inc. v. Hutch
Restaurant Associates, L.P., 100 A.D.3d 531, 954 N.Y.S.2d 87 (1st Dept. 2012).
47. Even assuming, arguendo, that an issue of fact exists as to whether Loeb signed
the authorizations, Loeb’s mere denial of his signatures cannot save his Complaint because there
is no dispute that he executed the Retainer Agreement; that documentary evidence demonstrates
that Loeb was contractually obligated to reimburse the Barket Firm for advance payments made
on his behalf. There is no dispute that the advance payments for which the Barket Firm was
reimbursed was effectuated for Loeb’s benefit. It is also undisputed that the Barket Firm had his
voluntary permission to hold onto the settlement funds until he decided what to do with the
money. Accordingly, notwithstanding Loeb’s half-hearted denial of his signatures, Defendants
are entitled to dismissal because the factual allegations contained in the Complaint and his
opposing affidavits failed to satisfy the pleading requirements necessary to establish all of the
elements of claim for breach of contract, fraud, Judiciary Law § 487, conversion, or unjust
enrichment.
48. Furthermore, all of Loeb’s claims in this action fall within the broad scope of the
arbitration provision contained in the Retainer Agreement. The same h
Preview
FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------------X CHRISTOPHER LOEB, Index No.: 608624/2023 Plaintiff, AFFIRMATION IN OPPOSITION TO -against- CROSS-MOTION AND REPLY BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP, BRUCE A. BARKET, and DAVID J. AYRES, Defendants. ----------------------------------------------------------------------X DAVID BLOOM, ESQ., an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following, pursuant to the penalties of perjury: 1. Your Affirmant is a partner of KAUFMAN BORGEEST & RYAN LLP, attorneys for defendants BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP (“the Barket Firm”), BRUCE A. BARKET (“Barket”) and DAVID J. AYRES (“Ayres”) (collectively, “Defendants”), in the above-captioned matter, and as such, is fully familiar with all of the facts and circumstances as hereinafter set forth. 2. This Affirmation is executed upon information and belief, the sources of which are the files and records maintained by the law offices of KAUFMAN BORGEEST & RYAN LLP pertaining to this matter. 3. This Affirmation is respectfully submitted in opposition to Plaintiff’s cross- motion for sanctions, and in further support of Defendants’ motion to dismiss. 4. This case embodies the phrase “no good deed goes unpunished”. Plaintiff Christopher Loeb (“Plaintiff” or “Loeb”) is a disgruntled, and frankly, a very disturbed, former client of the Barket Firm, a reputable law firm that went to great lengths to try to protect Loeb 1 9373262 1 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 from harming himself. Plaintiff either has no memory of what actually transpired in the underlying matter, or worse, is lying to this Court to try to avoid being sanctioned. PROCEDURAL HISTORY 5. On April 4, 2023, over four years after the settlement of the underlying federal civil rights action (Christopher Loeb v. Suffolk County, et al., Eastern District of New York Case No. 2:15-cv-00578-JS-GXB) (“the underlying action”), and over three years after the attorney- client relationship ended, Plaintiff commenced this action against his former attorneys seeking to recover monetary damages for: (1) breach of contract; (2) conversion; (3) fraud; (4) unjust enrichment; and (5) purported violations of New York Judiciary Law § 487. Plaintiff alleged that he did not authorize the settlement disbursements and that the Defendants withheld records of the disbursements (NYSCEF Doc. 2). 6. Prior to the commencement of this action, in September 2022, Plaintiff sought documentation from the Barket Firm relating to the disbursements made in 2018, including copies of the applicable retainer agreement, settlement checks, disbursement checks, and written authorizations executed by Loeb approving the disbursements (NYSCEF Doc. 13). Ayres furnished the initially requested documents and information on November 1, 2022 (NYSCEF Doc. 14), including: the parties’ Retainer Agreement (NYSCEF Doc. 15); copies of the settlement checks (NYSCEF Doc. 16); the signed disbursement statements (NYSCEF Doc. 17); and the client IOLA Fund Activity report (NYSCEF Doc. 18) (these items were redacted to maintain the confidentiality of the settlement). 7. On November 1, 2022, Plaintiff’s counsel, Christopher Cassar, Esq., demanded additional records (NYSCEF Doc. 19). On November 3, 2022, Ayres emailed Mr. Cassar acknowledging receipt of the itemized list of requested documents and advised that the Barket Firm will seek compensation for the considerable amount of time that had already been spent 2 9373262 2 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 complying with the initial requests and for the additional time and effort needed to assemble and produce the voluminous records (NYSCEF Doc. 20). 8. On November 14, 2022, the Barket Firm issued Invoice # 4739 to Plaintiff in the amount of $13,526.25 for the extensive work performed in assembling, reviewing, producing, and responding to Plaintiff’s onerous document requests. The invoice reflects that it took nearly two months to complete these tasks (NYSCEF Doc. 32). Plaintiff refused to pay the invoice, and this lawsuit ensued. 9. Defendants appeared and instituted a pre-answer motion to dismiss. Defendants fully established their entitled to dismissal based upon Plaintiff’s failure to state any viable claims upon which relief may be granted, the overwhelming documentary evidence utterly refuting Plaintiff’s false accusations, and the expiration of the three-year statute of limitations applicable to the causes of action for conversion and unjust enrichment. Defendants also demonstrated that costs, sanctions, and attorney’s fees should be imposed upon Plaintiff or his attorney, Mr. Cassar, for commencing this action in bad faith. Defendants were well within their rights to charge their former client for the onerous task of assembling and providing the voluminous records requested by Plaintiff concerning the settlement disbursements. Plaintiff filed this suit for no reason other than to harass and maliciously injure his former attorneys and to force them to furnish the records without compensation. Such conduct is frivolous and meets the criteria for the imposition of costs, sanctions, and attorney’s fees pursuant to 22 NYCRR 130-1.1(a). 10. Plaintiff now opposes the dismissal motion and, without any legitimate basis in fact or law, simultaneously cross-moves for sanctions. Loeb’s opposing affidavits merely rehashed the conclusory allegations contained in his Complaint that Defendants lacked authority to disburse the settlement funds, without offering any new factual allegations to suggest that 3 9373262 3 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 Defendants engaged in fraud or deceit, breached the Retainer Agreement, unlawfully converted the settlement funds, or was unjustly enriched. Plaintiff’s opposition thus failed to remedy the glaring pleading defects in this case. FACTS 11. This Court is respectfully referred to the Affidavit of the Hon. David J. Ayres, dated June 27, 2023 (NYSCEF Doc. 12) and the Affidavit of Bruce A. Barket, Esq. dated June 26, 2023 (NYSCEF Doc. 23), along with the exhibits annexed thereto, for a detailed recitation of the facts and circumstances surrounding this matter. The following facts are well-supported by Defendants’ submissions. 12. On April 9, 2014, Loeb entered into a Retainer Agreement with the Barket Firm to pursue federal civil rights claims against Suffolk County and other police officials. The Retainer Agreement provided that, if there is no recovery in the underlying action, the Barket Firm would receive no legal fee but Loeb would still be responsible for reimbursing the Barket Firm attorneys for disbursements. In the event of a recovery, the Barket Firm was entitled to receive the greater of legal fees awarded by the court or one-third of the net recovery. Pursuant to the Retainer Agreement, any liens or disbursements expended by the Barket Firm on behalf of Loeb or by Loeb directly, any assignment of claims, or any other debts to be paid from the recovery of settlement, shall not be deducted from the net recovery for purposes of calculating the legal fee (NYSCEF Doc. 24, ¶ 2). 13. The Retainer Agreement also authorized the Barket Firm to receive the proceeds of any settlement in the underlying action and granted the Barket Firm Power of Attorney to endorse any checks on his behalf for purposes of deposing the checks and collecting legal fees (NYSCEF Doc. 24, ¶ 4). 4 9373262 4 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 14. Critically, the Retainer Agreement provided that the Barket Firm may advance, but that Loeb shall be responsible for, payment of all disbursements for expenses, including, but not limited to, reasonable and necessary expenses incurred on behalf of Loeb in connection with the representation. The Barket Firm had the contractual right and option, at any time, to require Loeb to advance expenses needed to continue prosecuting the matter, and if Loeb failed or refused to pay or advance such expenses upon request, the Barket Firm had the right to stop all work and to withdraw as counsel (NYSCEF Doc. 24, ¶ 5). 15. Loeb admits that he knowingly and voluntarily entered into the Retainer Agreement. Consequently, Loeb is precluded from challenging the contractual authority expressly granted by him via the Retainer Agreement allowing the Barket Firm to advance payment of all disbursements on his behalf and be reimbursed by Loeb for same. 16. Loeb also contends, for the first time in opposition to Defendants’ motion to dismiss, that the Defendants “overcharged” him for services and other fees, that he never approved various litigation expenses, and that he did not receive any invoices from the Barket Firm. The claims fail because the Retainer Agreement contained an enforceable arbitration clause requiring any fee disputes arising from the legal services to be resolved via arbitration (NYSCEF Doc. 24, ¶ 7). 17. Rather than citing any particular provision of the Retainer Agreement he believes was breached, Plaintiff in opposition merely takes issue with certain terms that were purportedly omitted from the Retainer Agreement. For example, Loeb incorrectly asserts that the Retainer Agreement failed to advise him of the right to cancel the Retainer Agreement and discharge his attorneys at any time, and failed to address how the attorney’s fee would be determined in the event of such cancellation and discharge. These new allegations are without merit because the Retainer Agreement contains language that the Barket Firm may indeed be discharged by the 5 9373262 5 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 client and that, if discharged for cause, the Barket Firm shall be entitled to compensation under the specific fee structure plus reimbursement of costs and expenses notwithstanding the client’s discharge of the Barket Firm and substitution of another lawyer prior to receipt of any recovery (NYSCEF Doc. 24, ¶ 9). 18. Plaintiff also misguidedly surmises that the Barket Firm did not file a retainer/closing statement with the Office of Court Administration (OCA). 22 NYCRR 691.20 requires a retainer and closing statement to be filed “in connection with any action or claim for damages for personal injury or for property damages, or for death or loss of services resulting from personal injuries, due to negligence or any type of malpractice …”. The Barket Firm was not required to file a retainer or closing statement with OCA because the underlying action did not involve any claims of negligence or malpractice. The underlying action was brought solely under federal statutory law based upon deprivations of Loeb’s civil rights under 42 U.S.C. § 1983; a true and correct copy of the complaint filed on behalf of Loeb in the underlying federal civil rights action is annexed hereto as Exhibit “A”. Accordingly, in the absence of any common law claims of negligence or malpractice, compliance with 22 NYCRR 691.20 was not required. 19. In February 2018, Suffolk County agreed to settle the claims against it in the underlying action in the amount of $1,500,000.00. Plaintiff, in opposition, contends that the Barket Firm secured the monetary settlement “without [his] consent and over [his] objection”. This allegation is demonstrably false. On February 6, 2018, Loeb executed a notarized General Release, thereby agreeing to the settlement; a true and correct copy of the General Release that was attached to the judicial approval of the settlement is annexed hereto as Exhibit “B”. 20. The foregoing exhibits are properly submitted in opposition to Plaintiff’s cross- motion for sanctions, and in response to the brand-new allegations of wrongdoing asserted by 6 9373262 6 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 Loeb for the first time in opposition to the Defendants’ motion to dismiss. See Central Mortg. Co. v. Jahnsen, 150 A.D.3d 661, 56 N.Y.S.3d 107 (2nd Dept. 2017); Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204, 887 N.Y.S.2d 615 (2nd Dept. 2009). 21. Suffolk County unilaterally deducted $21,541.92 from the $1,500,000.00 settlement amount, pursuant to a Department of Social Services (DSS) lien (NYSCEF Doc. 25). Loeb avers that he did not approve the DSS lien. However, the Barket Firm had no control over the DSS lien nor was Loeb’s approval necessary for Suffolk County to effectuate that deduction. Although Loeb denies approving the settlement and payment of the DSS lien, Loeb does not and cannot deny the fact that he executed a disbursement calculations worksheet, dated March 1, 2018, and thereby confirmed his acknowledgement and authorization of these disbursements arising from the Suffolk County settlement including the Barket Firm’s legal fee of $499,999.50, i.e. one-third of the net recovery from the Suffolk County settlement, pursuant to the fee structure set forth in the Retainer Agreement (NYSCEF Doc. 26). 22. The Barket Firm also secured a settlement from one of the individually-named public official defendants in the underlying action, the terms of which are confidential as per the settlement agreement. From that undisclosed amount, $5,524.85 was deducted and reimbursed to the Barket Firm for litigation expenses. The Barket Firm also received a legal fee in accordance with the agreed upon fee structure. A payoff in the amount of $31,108.27 was issued to Necessity Funding Partners, LLC, pursuant to a Legal Funding Agreement previously entered into by Loeb (NYSCEF Doc. 27). Once again, Loeb does not and cannot deny the fact that, on February 26, 2018, he executed a disbursement calculations worksheet for this confidential settlement and thus confirmed his acknowledged and agreement of these disbursements arising from this confidential settlement (NYSCEF Doc. 26). Despite having revealed the terms of this confidential settlement in his Complaint and accusing Defendants of wrongfully 7 9373262 7 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 withholding/disbursing money from that confidential settlement (NYSCEF Doc. 2, ¶ 14), Loeb did not utter a single word about this settlement in his opposing affidavits. 23. Loeb voluntarily gave his permission to the Barket Firm to maintain the net settlement funds in its client IOLA account until Loeb decided what he wanted to do with the money. The Barket Firm agreed to do so, not for nefarious purpose, but strictly for Loeb’s own benefit and out of concern for Loeb’s well-being and spending habits due to his criminal history and struggles with drug addiction (NYSCEF Doc. 23, ¶ 10-11). 24. In the months that followed the settlement of the underlying action, with Loeb’s permission, the Barket Firm maintained the settlement funds and effectively acted as Loeb’s bookkeeper and financial manager, free of charge, having issued checks and effectuated wire transfers for various disbursements and expenditures, all of which were for Loeb’s benefit. These included: bail postings (NYSCEF Doc. 12, ¶ 8-9; NYSCEF Doc. 22, pp. 35-40, 77-97, 196-200); new retainer agreements with the Barket Firm for representation and handling of Loeb’s other criminal matters, and legal fees and expenses related thereto (NYSCEF Doc. 22, pp. 41-50, 65-76, 201-247); Loeb’s airline tickets, hotel stays and admission to a Florida drug rehabilitation facility in (NYSCEF Doc. 22, pp. 51-64); money given to Loeb’s brother (NYSCEF Doc. 22, pp. 169-174); and reimbursement for out-of-pocket expenses. (NYSCEF Doc. 22, pp. 98-168, 175-191). All disbursements were made with Loeb’s knowledge and approval (NYSCEF Doc. 12, ¶ 9; NYSCEF Doc. 22, pp. 4, 9, 13, 16, 21-22, 24, 28, 33, 37, 43, 53, 58, 67, 76, 79, 95-96, 103, 124-125, 170-174, 195, 203, 231, 240, 250; NYSCEF Doc. 23, ¶ 11; NYSCEF Doc. 29). 25. Loeb now conveniently denies that he signed the check request form dated March 22, 2018 which authorized the issuance of two checks for the sum total of $30,000—check #1353 in the amount of $15,000 for a retainer in connection with a new criminal matter and 8 9373262 8 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 check #1354 in the amount $15,000 for bail payment (NYSCEF Doc. 22, pp. 37, 43). However, Loeb does not accuse any particular defendant of forging his signature, nor can he establish any ascertainable damages resulting from the issuance of these checks. These checks were issued solely for Loeb’s benefit. Contrary to Loeb’s false accusations, Loeb did in fact enter into a new retainer agreement for this criminal matter (NYSCEF Doc. 22, pp. 72-76); the new retainer agreement expressly provided for the $15,000 retainer payment and set forth an hourly fee structure, disproving the notion that Defendants promised to represent Loeb free of charge. Moreover, Defendants furnished the bail receipt (NYSCEF Doc. 22, p. 39), as well as a copy of check #10058 dated March 19, 2019 payable to Loeb in the amount of $15,000 with a memo indicating the return of bail and signed/negotiated by Loeb (NYSCEF Doc. 22, p. 40). 26. Loeb also denies that he signed the check request form dated March 28, 2018 which authorized a reimbursement to the Barket Firm in the amount of $1,000 for an advance payment made by the Barket Firm on Loeb’s behalf to cover a deposit for Loeb’s admission to the Beachway drug rehabilitation facility in Florida (NYSCEF Doc. 22, p. 53). Loeb further denies signing the check request form dated April 5, 2018 which authorized the issuance of two checks, totaling $1,817.11, to reimburse the Barket Firm for advance payments made by on Loeb’s behalf to cover the expense of Loeb’s hotel stay and his airline tickets to travel to the Florida drug rehab facility (NYSCEF Doc. 22, p. 58). Once again, Loeb does not accuse any particular defendant of forging his signature for these expenditures, nor can he show that he suffered any ascertainable damages as these advance payments were clearly made for Loeb’s benefit (NYSCEF Doc. 22, pp. 51-64). 27. Next, Loeb asserts that Defendants wrongfully converted a $19,000 payment for his bail in April 2018. The evidence shows that, on April 17, 2018, a check in the amount of $19,000 was issued to Ayres for the purpose of cashing and posting Loeb’s bail in connection 9 9373262 9 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 with his subsequent Suffolk Criminal Contempt matter. Ayres brought that check directly to Signature Bank to be cashed and promptly posted that exact amount in cash to Suffolk County that same day. Suffolk County returned the checks, in the total amount of $19,000. That money was then put into the client IOLA account immediately. A check payable to Loeb in the amount of $19,000 had been issued, but Loeb confirmed that he never deposited that check. Loeb approved a stop payment for that check, and he agreed to apply the $19,000 to a new retainer agreement with the Barket Firm for legal representation involving this latest criminal matter (NYSCEF Doc. 12, ¶ 10; NYSCEF Doc. 22, pp. 77-97). Loeb does not dispute signing these authorizations or the subsequent retainer agreement dated April 16, 2019. Rather, Loeb vaguely asserts that he was “coerced” into signing these documents because he was incarcerated and that Defendants threatened to stop working on his case. However, Loeb clearly did not have to retain the Barket Firm to represent him in this criminal matter and could have hired another attorney if he did not wish to sign the new retainer with the Barket Firm. 28. According to Loeb’s opposing affidavits, in an email dated July 12, 2018, Loeb voiced his displeasure with the Barket Firm’s holding of the settlement funds for various reasons. In that same email, Loeb authorized (but did not instruct) the Barket Firm to release the remaining net settlement funds to his bank account. However, Loeb’s email confirmed that he, in his own words, “voluntarily gave permission” to the Barket Firm to hold onto the settlement funds until he decided what he wanted to do with the money (NYSCEF Doc. 28). Loeb further acquiesced to the voluntary arrangement as evidenced by a follow up email from Loeb to the Barket Firm on August 24, 2018 wherein he requested that his weekly allowance be transferred to his account (NYSCEF Doc. 28). 29. As of August 30, 2018, after all authorized disbursements made on Loeb’s behalf through that date, there was a total of $680,802.63 remaining in the client IOLA account 10 9373262 10 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 (NYSCEF Doc. 30). On August 31, 2018, Loeb instructed the Barket Firm to transfer the settlement funds to another law firm (Abrams Fensterman) but authorized the Barket Firm to retain a portion of the remaining funds for payment of outstanding expenses that the Barket Firm paid on his behalf as well as for future legal fees in connection with the Barket Firm’s handling of Loeb’s other pending criminal matters (NYSCEF Doc. 22, pp. 192-195; NYSCEF Doc. 31). On September 4, 2018, pursuant to Loeb’s authorization, the Barket Firm wired $630,000 to Abrams Fensterman (NYSCEF Doc. 32). 30. On November 13, 2018, the Barket Firm issued a check payable to cash in the amount of $3,000 for the purpose of posting Loeb’s bail in yet another criminal matter. Contrary to Loeb’s assertions, this amount was indeed deposited into Loeb’s IOLA account (NYSCEF Doc. 22, pp. 196-200). 31. On December 21, 2018, $11,458.49 was paid to the Barket Firm for reimbursement of expenses incurred during August 2018 as reflected in Invoice #12449. Although Loeb denies having signed the check request authorization form, he once again does not accuse any particular defendant of forging his signature, nor can he demonstrate damages resulting therefrom as these advance payments were made for Loeb’s benefit to cover his hotel charges, transportation expenses, and cash allowances (NYSCEF Doc. 22, pp. 201-237). 32. On December 31, 2018, the Barket Firm was paid a total of $5,445.00 for legal fees in connection with Invoice #12425 and Invoice #12426 (NYSCEF Doc. 33). Loeb denies having signed the check request authorization form, but once again he does not accuse any particular defendant of forging his signature, nor can he demonstrate damages resulting therefrom as this check covered the expense of legal services provided by the Barket Firm to Loeb, for his benefit, in connection with the criminal matter for which the Barket Firm was retained (NYSCEF Doc. 22, pp. 237-247). 11 9373262 11 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 33. On January 3, 2019, the remaining balance, which by then totaled $31,076.14, was returned to Loeb (NYSCEF Doc. 34). Loeb denies having signed the check request authorization form, but once again does not accuse any particular defendant of forging his signature, nor can he demonstrate damages resulting therefrom as this check was issued for no reason other than to return the remaining balance that was owed to him (NYSCEF Doc. 22, pp. 248-250). POINT I LOEB’S OPPOSING AFFIDAVITS FAILED TO OFFER ANY NEW FACTUAL ALLEGATIONS TO CURE HIS INSUFFICIENTLY PLEADED CAUSES OF ACTION.__________ 34. On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994). The court may consider affidavits submitted by the plaintiff to remedy pleading defects. See Dinger v. Cefola, 133 A.D.3d 816, 20 N.Y.S.3d 416 (2nd Dept. 2015). However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true. See Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 843 N.Y.S.2d 104 (2nd Dept. 2007). Here, Loeb’s affidavits are replete with baseless inflammatory accusations of wrongdoing which amount to bare legal conclusions and are plainly refuted by the records. 35. In order to sustain a claim for breach of contract, the plaintiff must plead “the existence of a contract, the plaintiff’s performance thereunder, the defendant's breach thereof, and resulting damages.” Harris v. Seward Park Housing Corp., 79 A.D.3d 425, 913 N.Y.S.2d 161 (1st Dept. 2010). Plaintiff is required to allege “in non-conclusory language …, the essential terms of the parties’ … contract, including those specific provisions of the contract upon which 12 9373262 12 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 liability is predicated, whether the alleged agreement was, in fact, written or oral, and the rate of compensation. Caniglia v. Chicago Tribune-New York News Syndicate, Inc., 204 A.D.2d 233, 612 N.Y.S.2d 146 (1st Dept. 1994). Much like his Complaint, Loeb’s affidavits failed to set forth the terms of the retainer agreement that were allegedly breached by Defendants, how such terms were breached, or damages caused by any breach. 36. To properly plead a cause of action for fraud, plaintiff must allege that (1) defendant made a false representation of fact, (2) defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) plaintiff was injured by the reliance. See Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 883 N.Y.S.2d 147 (2009); Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 646 N.Y.S.2d 76 (1996); Mariano v. Fiorvante, 118 A.D.3d 961, 989 N.Y.S.2d 55 (2nd Dept. 2014). In addition, CPLR 3016(b) requires that where, as here, a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail. See Oppedisano v. D’Agostino, 196 A.D.3d 497, 151 N.Y.S.3d 150 (2021); Saul v. Cahan, 153 A.D.3d 947, 61 N.Y.S.3d 265 (2nd Dept. 2017) (affirming the dismissal of a cause of action alleging fraud which contained only bare and conclusory allegations, without any supporting detail, and thus failed to satisfy the requirements of CPLR 3016(b)). 37. Likewise, a plaintiff seeking to recover damages under Judiciary Law § 487 requires must plead and prove “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorney that caused damages. See Freeman v. Brecher, 155 A.D.3d 453, 64 N.Y.S.3d 13 (1st Dept. 2017); Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 983 N.Y.S.2d 594 (2nd Dept. 2014). Allegations regarding an act of deceit or intent to deceive must be stated with particularity. See Bill Birds, Inc. v. Stein Law Firm, P.C., 164 13 9373262 13 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 A.D.3d 635, 82 N.Y.S.3d 91 (2nd Dept. 2018). The Courts of this State have repeatedly dismissed claims brought under the Judiciary Law where, as here, the allegations against the attorney as to scienter and damages are conclusory and factually insufficient. See, e.g., New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp., 153 A.D.3d 1351, 61 N.Y.S.3d 136 (2nd Dept. 2017); Putnam County Temple & Jewish Center, Inc. v. Rhinebeck Savings Bank, 87 A.D.3d 1118, 930 N.Y.S.2d 42 (2nd Dept. 2011). 38. In this case, the causes of action for fraud and Judiciary Law § 487 both fail because the Complaint fails to satisfy the heightened pleading standard under CPLR 3016(b), and Loeb’s opposing affidavits alleged no additional facts to avoid dismissal. Neither the Complaint nor Loeb’s opposing affidavits alleged any false representation of fact knowingly made by these Defendants. Loeb failed to explain how any statements were in any way untruthful. Loeb likewise failed to plead justifiable reliance on any misrepresentation or material omissions. Loeb’s submissions are devoid of any particular allegations of a chronic or extreme pattern of deceitful behavior. At a minimum, Loeb failed to plead and will never be able to prove actual, ascertainable damages resulting from such fraud or deceit. 39. Plaintiff fared no better with his non-viable claim for conversion. In order to succeed on a cause of action to recover damages for conversion, Plaintiff must show: (1) legal ownership or an immediate right of possession to a specific identifiable thing; and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's right. Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d 822, 6 N.Y.S.3d 65 (2nd Dept. 2015). “The tort of conversion is established when one who owns and has a right to possession of personal property proves that the property is in the unauthorized possession of another who has acted to exclude the rights of the owner.” Republic of Haiti v. Duvalier, 211 A.D.2d 379, 626 N.Y.S.2d 472 (1st Dept. 1995). 14 9373262 14 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 40. Here, Loeb’s Complaint and opposing affidavits contain no factual allegations that he had legal ownership over or an immediate right of possession to the entirety of the settlement funds recovered by the Barket Firm his behalf or that Defendants exercised unauthorized dominion of the settlement to the exclusion of Plaintiff’s rights. Any such claim is belied by Loeb’s admission that the parties entered into a Retainer Agreement that gave the Barket Firm the contractual right to a contingency fee in the amount of one-third of the amount recovered in the underlying federal civil rights action. Alternatively, the conversion claim must be dismissed as duplicative of the breach of contract claim, as the conversion claim is predicated on the alleged breach of the Retainer Agreement and Plaintiff alleged no facts that would give rise to tort liability. See Johnson v. Cestone, 162 A.D.3d 526, 80 N.Y.S.3d 15 (1st Dept. 2018). 41. An action for restitution based on unjust enrichment requires the plaintiff to plead and prove that: (1) defendant received money, property or services belonging to or provided by the plaintiff; (2) defendant benefited from the receipt of the money, property or services; and (3) under principles of equity and good conscience, defendant should not be permitted to retain the money or property or should be required to pay for the services. Cohn v. Rothman-Goodman Management Corp., 155 A.D.2d 579, 547 N.Y.S.2d 881 (2nd Dept. 1989); Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 672 N.Y.S.2d 8 (1st Dept. 1998). Here, the Complaint failed to sufficiently plead that Defendants received money or property that belonged to Loeb, that Defendants benefited from the receipt of money or property rightfully owned by Loeb, or that Defendants were unjustly enriched thereby. The Complaint also failed to allege that equity and good conscience require the return of all disbursements, expenses, and legal fees paid to Defendants during the course of the underlying representation. Loeb’s opposing affidavits failed to cure these defects. 15 9373262 15 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 42. Moreover, the unjust enrichment claim fails because the dispute over the disbursements and the Barket Firm’s fees/expenses is governed by the Retainer Agreement. The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract or unjust enrichment for events arising out of the same subject matter. Cox v. NAP Const. Co., Inc., 10 N.Y.3d 592, 861 N.Y.S.2d 238 (2008); Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653 (1987); Ashwood Capital, Inc. v. OTG Management, Inc., 99 A.D.3d 1, 948 N.Y.S.2d 292 (1st Dept. 2012) (holding that only where the contract does not cover the dispute at issue may a plaintiff proceed upon a quasi-contract theory of unjust enrichment); Cohen v. Nassau Educators Federal Credit Union, 37 A.D.3d 751, 832 N.Y.S.2d 50 (2nd Dept. 2007) (holding that the exercise of a right accorded by a contract cannot give rise to a claim for unjust enrichment). 43. Lastly, Plaintiff made no attempt to salvage his claims against Ayres through either a fact-based or legal argument. Ayres established that he was not involved in the handling of Loeb’s disbursements as he had no signatory authority over the client IOLA account or any other Barket Firm account for the purposes of deposits or withdrawals (NYSCEF Doc. 12, ¶ 11). Plaintiff, in opposition, did not brief or address this point at all. Thus, all claims against Ayres must be dismissed as abandoned and waived. See Kane v. Triborough Bridge & Tunnel Authority, 8 A.D.3d 239, 778 N.Y.S.2d 52 (2nd Dept. 2004). POINT II THE DOCUMENTARY EVIDENCE SHOWS THAT LOEB AUTHORIZED ALL DISBURSEMENTS AND LEGAL FEES, AND ANY DISPUTES ARISING THEREFROM ARE SUBJECT TO MANDATORY ARBITRATION PURSUANT TO THE PARTIES’ RETAINER AGREEMENT.________________________ 44. A motion to dismiss on the basis of CPLR 3211(a)(1) may be granted where “the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a 16 9373262 16 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 defense as a matter of law”. See Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 746 N.Y.S.2d 858 (2002). Where a defense is based on documentary evidence proving that the plaintiff does not have and/or cannot prove a viable cause of action, the claim must be dismissed. See Kaufman v. I.B.M. Corp., 61 N.Y.2d 930, 474 N.Y.S.2d 721 (1984); Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 979 N.Y.S.2d 84 (2nd Dept. 2014). Allegations contradicted by documentation do not suffice. See Dweck Law Firm, LLP v. Mann, 283 A.D.2d 292, 727 N.Y.S.2d 58 (1st Dept. 2001). 45. The documentary evidence shows that the Barket Firm was to be paid a contingency fee in the amount of one-third of any settlement recovery in the underlying action. The Retainer Agreement required Loeb to reimburse the Barket Firm for any expenses advanced by the firm (NYSCEF Doc. 23, ¶ 6, NYSCEF Doc. 24). Loeb acknowledged his approval of the disbursements from the settlements recovered in the underlying action (NYSCEF Doc. 23, ¶ 8-9; NYSCEF Docs. 26, 27). Thereafter, with Loeb’s permission, the Barket Firm held the settlement funds in its client IOLA account until Loeb decided what he wanted to do with the money (NYSCEF Doc. 23, ¶ 10-12, NYSCEF Docs. 28-30); Loeb cites no evidence to support his new accusation of commingling of funds. Loeb authorized each and every disbursement and expenditure (NYSCEF Doc. 12, ¶ 9; NYSCEF Doc. 22, pp. 4, 9, 13, 16, 21-22, 24, 28, 33, 37, 43, 53, 58, 67, 76, 79, 95-96, 103, 124-125, 170-174, 195, 203, 231, 240, 250; NYSCEF Doc. 23, ¶ 13-17; NYSCEF Docs. 31-33). The remaining balance was returned to Loeb on January 3, 2019, after which the Defendants were no longer in possession or control of any of the settlement funds (NYSCEF Doc. 23, ¶ 16; NYSCEF Doc. 34). 46. Loeb cannot avoid the consequences of his signatures. The Courts of this State have consistently held that a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it. See, e.g., Abdulatif Abdulayev v. Yadgarov, 17 9373262 17 of 24 FILED: SUFFOLK COUNTY CLERK 10/03/2023 04:43 PM INDEX NO. 608624/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/03/2023 105 A.D.3d 877, 964 N.Y.S.2d 545 (2nd Dept. 2013); Hutchinson Burger, Inc. v. Hutch Restaurant Associates, L.P., 100 A.D.3d 531, 954 N.Y.S.2d 87 (1st Dept. 2012). 47. Even assuming, arguendo, that an issue of fact exists as to whether Loeb signed the authorizations, Loeb’s mere denial of his signatures cannot save his Complaint because there is no dispute that he executed the Retainer Agreement; that documentary evidence demonstrates that Loeb was contractually obligated to reimburse the Barket Firm for advance payments made on his behalf. There is no dispute that the advance payments for which the Barket Firm was reimbursed was effectuated for Loeb’s benefit. It is also undisputed that the Barket Firm had his voluntary permission to hold onto the settlement funds until he decided what to do with the money. Accordingly, notwithstanding Loeb’s half-hearted denial of his signatures, Defendants are entitled to dismissal because the factual allegations contained in the Complaint and his opposing affidavits failed to satisfy the pleading requirements necessary to establish all of the elements of claim for breach of contract, fraud, Judiciary Law § 487, conversion, or unjust enrichment. 48. Furthermore, all of Loeb’s claims in this action fall within the broad scope of the arbitration provision contained in the Retainer Agreement. The same h