The plaintiff commenced this action on June 10, 2010, with the filing of the Summons and Verified Complaint. The plaintiff, an attorney, brings this action to collect from the defendants the sum of $38,000 in legal fees, as well as $2,450 in disbursements for a total of $40,450, which has been duly demanded but remains unpaid. On June 10, 2010, the plaintiff also filed a lis pendens against certain real property previously owned by the Estate of Fotios N. Bakos and presently owned by the defendant Nicholas Bakos.

The decedent, Fotios N. Bakos, died in 2005, survived by his two children, Martha Bakos [*2]Dietz and Nicholas Bakos. In or about October 2005, Martha Bakos Dietz hired the services of the plaintiff, an attorney, to prepare and file a Petition for Letters of Administration, as well as other necessary and required documents, with the Surrogate's Court of Queens County, in order for Dietz to obtain Letters of Administration for the Estate of her father.

On October 28, 2005, the defendant Martha Bakos Dietz executed the Petition and her brother, the defendant Nicholas Bakos, executed a Waiver of Citation Renunciation and Consent. The Petition and Waiver were prepared and timely filed with the Surrogate's Court. On July 24, 2006, Martha Bakos Dietz was then appointed Administrator of the decedent's Estate.

After this appointment, Nicholas Bakos allegedly found a draft of a document purporting to be the decedent's will from May 2005, under which Nicholas Bakos would receive the entire residuary estate and Martha Bakos Dietz would receive nothing. Nicholas Bakos further claimed that Martha Bakos Dietz played a role in suppressing the original May 2005 will, which was never found. Nicholas Bakos threatened litigation to enforce the terms of this will which he alleged was executed.

On October 23, 2007, the defendants Nicholas Bakos and Martha Bakos Dietz entered into a stipulation, known as the Final Settlement Agreement. Under the Final Settlement Agreement, Nicholas Bakos received the decedent's entire residuary estate, including real property in the Malba section of Queens County ("the Malba property"), within the neighborhood of Whitestone, Queens County, and the decedent's shares in the family business, after the payment of $10,000 to each of the decedent's three grandchildren and $75,000 to Martha Bakos Dietz. If the family business or the Malba property was sold above set prices, Nicholas Bakos agreed to pay Martha Bakos Dietz an additional sum.

As part of the Settlement Agreement the defendant Nicholas Bakos agreed to be responsible to pay "all claims and creditors of the Estate of Fotios N. Bakos, as well as the expenses of said Estate, including but not limited to estate taxes and attorney fees." The complaint alleges that the defendant Nicholas Bakos received a distribution from the Estate of the Malba property.

The plaintiff then sent Nicholas Bakos an invoice totaling $40,450.00 for fees and disbursements. Nicholas Bakos has not paid this invoice for legal fees. The plaintiff then commenced this action.

Defendant Nicholas F. Bakos moves, pursuant to CPLR 6514(c), for an order directing the County Clerk of the County of Queens to cancel the Lis Pendens filed against real property located at 5 Malba Drive, Whitestone, New York 11357, and indexed under Block 4437, Lot 41, and, pursuant to 22 NYCRR section 130-1.1(a), for an order awarding costs and attorneys fees as a result of the frivolous conduct engaged in by the plaintiff's counsel in the filing of the Lis Pendens. Defendants Nicholas F. Bakos and Martha Bakos Dietz have both moved, pursuant to CPLR 3211(a)(1), to dismiss the complaint. [*3]

First, the defendant Nicholas Bakos, upon the foregoing papers, moves to cancel the Notice of Pendency. A lis pendens may be filed "in any action . . . in which the judgment demanded would affect the title to, or the possession of, real property" (CPLR 6501). The defendant argues that inasmuch as plaintiff's complaint seeks money damages for the payment of legal fees he was not entitled to a Notice of Pendency (see, Tropeano v Tropeano, 35 AD3d 444 [2nd Dept. 2006]). While the plaintiff seeks damages for the failure to pay legal fees, the complaint in the alternative seeks to have the Court declare the defendant Nicholas Bakos be in material breach of the Final Settlement Agreement and have the agreement declared void, and the property would be returned to the Estate of Fotios Bakos.

The plaintiff, however, was not a party to the Final Settlement Agreement and cannot ask the Court to convey the property to the Estate. Thus, the defendant Nicholas Bakos's motion to cancel the lis pendens is granted. The defendant, however, has failed to establish that the plaintiff did not act in good faith in filing the lis pendens. Therefore, the branch of the motion for costs and attorney fees is denied.

In a separate motion, the defendant Nicholas Bakos moves to dismiss the complaint. On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, a court must accept as true all the allegations in the complaint (see, Goldman v Metro. Life Ins. Co., 5 NY3d 561 [2005]; Leon v Martinez, 84 NY2d 83 [1994]; Konidaris v Aeneas Capital Mgt., LP, 8 AD3d 244 [2nd Dept. 2004]). The defendant Nicholas Bakos argues that the plaintiff did not state a cause of action for breach of contract because there was no contractual privity between him and the plaintiff. However, the plaintiff alleges he is a third-party beneficiary of the Final Settlement Agreement. A third-party beneficiary may sue as a beneficiary on a valid contract when there is a an intent to benefit the third party and the benefit is not merely incidental (see, Kotchina v Luna Park Housing Corp., 27 AD3d 696 [2nd Dept. 2006]); Mutual Ticket Agents, Local 23293 v Roosevelt Raceway Assoc., 172 AD2d 595 [2nd Dept. 1991]).

Here, the language of the Final Settlement Agreement establishes that the plaintiff was an intended third-party beneficiary agreement. The plaintiff's cause of action for breach of contract is based on the failure to pay the plaintiff, as the third-party beneficiary, his attorney fees for representing the Estate of Fotios Bakos, as required by the Final Settlement Agreement. The plaintiff has, thus, adequately stated a cause of action for breach of contract. The defendant Nicholas Bakos's argument that the there can be no breach of contract cause of action because he did not sign a retainer agreement in violation of 22 NYCRR section 1215.1 is without merit.

The defendant Nicholas Bakos did not retain the plaintiff, but instead agreed to pay all attorney fees incurred by the Estate of Fotios Bakos. Since there was no attorney client relationship formed between Nicholas Bakos and the plaintiff, there was no requirement of a retainer agreement or letter of engagement between the plaintiff and Nicholas Bakos. Therefore, the defendant Nicholas Bakos's motion to dismiss the cause of action for breach of contract must be denied. [*4]

The complaint further states a cause of action for account stated. The elements for a cause of action for account stated are the rendering of an account and the failure of the responsible party to object within a reasonable period of time (Ernest Edward Badway Encyclopedia of New York Causes of Action: Elements and Defenses, section 5-2, at 37-38 [2nd ed. 2010 New York Law Journal Practice series]; see, e.g., Nebraskaland, Inc. v Best Selections, 303 AD2d 662 [2nd Dept. 2003]; Bay Ridge Lumber Co., Inc. v Summit Renovation Corp., 271 AD2d 559 [2nd Dept. 2000]). The plaintiff, in the complaint, alleges that he sent an invoice to Nicholas Bakos. The plaintiff, in his affidavit in opposition, states that he told the defendant Nicholas Bakos the amount of legal fees owed at the time the defendant signed the Final Settlement Agreement and that the defendant did not question or object to the fees.

The defendant Martha Bakos Dietz moves under CPLR 3211(a)(1) to dismiss the complaint against her. In order to be successful on a motion to dismiss, pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must resolve all factual issues and completely dispose of the claim (Country Pointe at Dix Hills Home Owners Ass'n, Inc. v Beechwood Org.,AD3d, 2011 WL 182243, 2011 NY Slip Op 00345 [2nd Dept. 2006] [citing cases]; see, Held v Kaufman, 91 NY2d 425 [1998]; Teitler v Max J. Pollack & Sons, 288 AD2d 302 [2nd Dept. 2001]).

The defendant Martha Bakos Dietz submitted the Final Settlement Agreement in support of her motion to dismiss. The Final Settlement Agreement established that Nicolas Bakos would be responsible for all debts including attorney fees of the Estate. The plaintiff was retained by Martha Bakos Dietz in connection with her appointment as Administrator of the Estate. The plaintiff then represented Martha Bakos Dietz in her capacity as Administrator. When the stipulation was signed, the plaintiff represented the Estate, and both Martha Bakos Dietz and Nicholas Dietz had individual counsel. The defendant Martha Bakos Dietz established that the plaintiff's fees are an estate expense and are covered by the provision in the Final Settlement Agreement. Therefore, the plaintiff can only recover from the defendant Nicholas Dietz. The motion to dismiss is granted.

Accordingly, the motion to cancel the notice of pendency is granted. The County Clerk of Queens County is directed, upon the payment of any fees which may be due and owing, to cancel the notice of pendency filed in this action against the property located at 5 Malba Drive, Whitestone, New York 11357, and indexed under Block 4437, Lot 41. The Clerk shall enter, upon the margin of the record, a notice of cancellation referring to this order.

The branch of the motion for attorneys fees and costs, pursuant to 22 NYCRR section 130-1.1(a), is denied.

The motion to dismiss by defendant Nicholas Bakos is denied.

The motion to dismiss by defendant Martha Bakos Dietz is granted and the complaint is dismissed against the defendant Martha Bakos Dietz. [*5]

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: February 4, 2011

J.S.C.