19

- 1279 Moreno

- Godoy v. Kartagener

I N THE 1 

# United States Court of Appeals 2 

# For the Second Circuit 3

________ 4 A UGUST T ERM , 202 0 5

6 A RGUED : J UNE 2, 202 1 7 D ECIDED : J ULY 30, 2021 8

9 No. 19

- 1279 10

11 

### L UIS 

### F ELIPE 

### M ORENO



### - G ODOY
, 12 Plaintiff

- Appellant

, 13

14

v. 15
16 

### S TEVEN 

### R. K ARTAGENER 

### , E SQ



### . , 17 Defendant

- Cross

- Claimant

- Appellee

, 18

19 

### G ALLET 

### D REYER 

### & B ERKEY 

### , LLP.

, 20 Defendant

- Counter

- Defendant

- Appellee, 21

22 

### R OGER 

### L. S TAVIS 

### , E SQ



### . , 23 Defendant

- Appellee, 24

25

________ 26

27 Appeal from the United States District Court 28 F or the Southern District of New York

. 29 14

- CV

- 07082

– Paul Engelmayer
, District Judge

. 30 31

________ 32

33

3419

- 1279 Moreno

- Godoy v. Kartagener

2 Before: C ALABRESI , M ENASHI , Circuit Judges

, AND C OTE , District Judge

. 1 1

________ 2

3 Luis Felipe Moreno

- Godoy and Monzer Al Kassar retained attorney Ro ger 4
L. Stavis of Gallet Dreyer & Berkey (“GDB”) for a flat fee of $125,000 to represent 5 them in a criminal appeal. Seeking additional legal support, t hey also retaine d 6 attorney Steven Kartagener for a flat fee of $100,000

. Al Kassar’s wife, R aghdaa 7 Habbal, transf erred both fees to the attorneys . Moreno

- Godoy, Al Kassar, and 8 Habbal all a s sert that the $100,000 transferred to Kartagener belonged to 9
Moreno

- Godoy. Then, w hen Kartagener was unable to work on the appeal, 10
Moreno

- Godoy asked for the money back. Instead, Kartagener transferred it to 11 Stavis , who kept it . Moreno

- Godoy subsequently initiated this action, alleging 12 breach of contract and quasi

- contract claims. The district court granted summary 13 judgment to all three defendants , GDB, Stavis, and Kartage ner

. 14 We conclude that the district court erred in granting summary judgment to 15 defendants on Moreno

- Godoy’s breach

- of

- contract claim because , under New 16 York law, Moreno

- Godoy can maintain a breach

- of

- contract claim without any 17 showing that the $100,000 belonged to him. Although Moreno

- Godoy’s quasi

18 contract claims against Stavis and GDB do require a showing that he owned the 19 money, we further conclude that the district court erred in granting summary 20 j udgment to those defendants on those claims because there is sufficient evidence 21
in the record from which a jury could conclude that the money indeed belonged 22
to Moreno

- Godoy . Finally, we hold that summary judgment for Stavis in his 23 individual capacity was also inappropriate

. 24 We therefore VACATE the grants of summary judgment to GDB, Stavis, 25 and Kartagener and REMAND for proceedings consistent with this opinion

. 26

27

1 Judge Denise Cote
, of the United States District Court for the Southern District of New York, sitting by designation.19

- 1279 Moreno

- Godoy v. Kartagener

3 1 J OHN M. T ANSKI , Axinn, Veltrop & Harkrider LLP (Drew A. Hiller, 2 Craig M. Reiser, on the brief )

, in support of Plaintiff

- Appellant

. 3

D AVID A. R OBINSON , Esq.
, in support of Defendant

- Appellee Steven R. 4 Kartagener, Esq. 5

D AVID S. D OUGLAS , Gallet Dryer & Berkey LLP ( Jared B. Foley
, on the 6 brief), in support of Defendants

- Appellees Gallete Dreyer & Berkey, LLP 7 and Roger L. Stavis, Esq. 8 9 10
C ALABRESI , Circuit Judge : 11 After a jury convicted them of several federal crimes, Plaintiff

- Appellant 12 Felipe Moreno

- Godoy and Monzer Al Kassar entered into two separate retainer 13
agreements for appellate legal services. The first stipulated that the law firm 14 Gallet Dreyer & Berkey LLP (“GDB”) would provide them both with “all post

15

verdic t legal services” for a flat fee of $125,000 (“GDB Agreement”). JA 217

. All 16 agree that the $125,000 paid to GDB belonged to Al Kassar. When Moreno

17 Godoy expressed interest in adding an additional lawyer to their team , Moreno

18 Godoy and Al Kassar brought on Steven R. Kartagener as additional counsel a t 19 the suggestion of GDB partner Roger L. Stavis . They signed a second retainer 20 agreement (“Kartagener Agreement”) providing that Kartagener would 21 represent both men in post

- verdict legal proceedings f or a flat fee of $100,000. 22 Because both men were in prison, Al Kassar’s wife Raghdaa Habbal handled the 23
payment to the respective attorneys. Moreno

- Godoy
, Al Kassar , and Habbal all 24

a s sert that the $100,000 paid to Kartagener belonged to Moreno

- Godoy. 2519

- 1279 Moreno

- Godoy v. Kartagener

4 But Kartagener never p rovided any legal services. Nor did he return the 1
$100,000 fee, as Moreno

- Godoy requested . Instead, he transferred it to Stavis, 2

who in due course remitted them to GDB

. 3

Moreno

- Godoy brought this law suit. He allege d breach of contract against 4 Stavis, GDB, and Kartagener, as well as quasi

- contract claims for unjust 5 enrichment, money had and received, and constructive trust against Stavis and 6 GDB. The district court (Engelmayer, J.) believed that Moreno

- Godoy’s claims all 7 turned on whether he could prove ownership of the $100,000 , because otherwise, 8

Moreno

- Godoy could not prove that he was damaged by the defendants’ breach

. 9

The district court did not find enough admissible evidence i n the record for th e 10
question of More no

- Godoy’s ownership of the money to reach a jury, and so 11 granted summary judgment to defendants. 12 We see things differently. To prove damages for his breach

- of

- contract 13
claim, Moreno

- Godoy did not need to make a ny showing that he owned the 14
$100,000

. See Markson v. Markson’s Furniture Stores , 195 N.E. 824, 826 (N.Y. 1935)

. 15 Rather, he was entitled to expectation damages, so long as he could “show a 16 stable foundation for a reasonable estimate” of Kartagener’s services

. Tractebel 17 Energy Mktg., I nc. v. AEP Power Mktg., Inc ., 487 F.3d 89, 110 (2d Cir. 2007); see also 18 Freund v. Washington Square Press, Inc ., 34 N.Y.2d 379, 383 (1974) (articulating the 19 “stable foundation for reasonable estimate” standard); Broadway Photoplay Co. v. 20 World Film Corp.
, 225 N.Y. 104, 109 (1919) (requiring “some basis of computation” 21 for expectation damages). 22 To prevail on his quasi

- contract claims, however, Moreno

- Godoy did need 23
to prove that he owned the $100,000. On our de novo review of the record, we find 2419

- 1279 Moreno

- Godoy v. Kartagener

5 sufficient evidence for these claims to proceed. If Moreno

- Godoy can convince a 1 jury that he owned the funds paid to Kartagener, he may prevail on the quasi

2 contract claims against Stavis and GDB
, assuming , of course, that he can also 3 satisfy the other elements of th ose claims. 4 Finally, the district court granted summary judgment to Stavis in his 5 personal capacity on the grounds that New York Partnership Law § 26 (a) shields 6

him from personal liability. Based on the record before us, we believe a jury 7 could find that Stavis committed a “wrongful act or misconduct” for which he 8 could be held personally liable under New York Partnership Law § 26(b). 9

We therefore VACATE the district co urt’s grants of summary judgment to 10 GDP, Kartagener, and Stavis, and REMAND for proceedings consistent with this 11
opinion. 12

BACKGROUND 13 A. Factual Background 14
In November of 2008, a federal jury convicted Felipe Moreno

- Godoy and 15

Monzer Al Kassar of several cri minal charges, including conspiracy to kill 16 officers and employees of the United States, and money laundering. They asked 17 their trial counsel, Roger L. Stavis, Esq.
, of the firm Gallet Dreyer & Berkey 18 (“GDB”) to represent both of them in all post

- convictio n proceedings

. While 19

incarcerated
, Moreno

- Godoy and Al Kassar signed a retainer agreement to that 20

effect ; it provided that GDB would represent both of them for a flat fee of 21
$125,00 0 (“GDB Agreement”). Al Kassar’s family transferred the money to GDB 22

without incident. 2319

- 1279 Moreno

- Godoy v. Kartagener

6 Around that time, Moreno

- Godoy indicated that he wanted additional 1 legal support for the appeal, so Stavis suggested that Moreno

- Godoy also retain 2

Stavis’s friend , attorney Steven R. Kartagener. On th at advice, Moreno

- Godoy 3 and Al Kassar signed a second retainer agreement with Kartagener, which 4 provided that Kartagener
, for a flat fee of $100,000
, would represent both of them 5 in post

- verdict legal proceedings (“Kartagener Agreement”). Raghdaa Habbal, 6

A l Kassar’s wife, sent the money to Kartagener from her personal account at a 7
bank in Beirut, Lebanon. 8

Moreno

- Godoy claims that the $100,000 fee for Kartagener’s services 9 belonged to him. He says that it came out of his savings, and that Habbal 10

transferred it to Kartagener on his behalf. Al Kassar and Habbal both testified 11 that the money belonged to Moreno

- Godoy, and no one else claims to have 12 owned the money. 13 Kartagener
, unable to obtain a security clearance to review classified 14

materials relevant to the case
, did not provide the bargained

- for appellate 15

services

. Before discussing it with his clients, Kartagener transferred $90,000 of 16

his retainer to GDB. Moreno

- Godo y requested that Kartag ener return the 17 retainer fee, but Kartagener did not respond. Instead, Kartagener transferred the 18
remaining $10,000 to Stavis

. 19

Moreno

- Godoy wrote to Stavis for an explanation. “I believe that there is 20

an error, ” wrote Moreno

- Godoy, “ because we signed a contract of agreement on 21 December 9, 2008, where you were to represent us as primary counsel on our 22 defense. On the subsequent month, I decided to have additional help and a 23 different opinion of someone that would provide with new ideas. . . . 2419

- 1279 Moreno

- Godoy v. Kartagener

7 [U] ltimately, I accepted your suggestion to hire your friend Mr. Steven 1 Kartagener on basis you continue to be primary counsel in the defense." JA 162

- 2

163. 3 Stavis responded
, “I always considered you my ‘client’ even if Steven 4 Kartagener was coming in to work with me on your case. ” JA 163. He told 5

Moreno

- Godoy, “Mr. Kartagener has refunded the retainer to me and I am using 6 it to represent you on this appeal.” JA 163. When pressed further, Stavis and 7 GDB expressly refused to return the $100,000 to Moreno

- Godoy. 8 For his part, Al Kassar repeatedly asked Stavis to return the money to 9

Moreno

- Godoy, visit Moreno

- Godoy in prison, and establish a new contract with 10 him in light of Kartagener’s ina bility to participate. Instead, Stavis never visited 11

Moreno

- Godoy or spoke to him by phone about the Kartagener fee. Neither 12 party suggests that Stavis and Moreno

- Godoy entered into a separate agreement 13

which would entitle Stavis to an additional $100,000. 14 B. Procedural Background 15 Proceeding pro se , Moreno

- Godoy initiated this action on August 4, 2014. 16 He p led claims for breach of contract, breach of fiduciary duty, and malpractice

. 17

After t he district court granted D efendants’ motions to dismiss the fiduciary 18 duty and malpractice claims

— but no t the breach

- of

- contract claim

— Moreno

19 Godoy obtained counsel and filed an amended complaint, pleading claims for 20 breach of contract against Stavis, GDB, and Kartagener, as well as quasi

- contract 21 claims for unjust enrichment, money had and received, and constructive trust 22 against Stavis and GDB. 2319

- 1279 Moreno

- Godoy v. Kartagener

8 The parties cross

- moved for summary judgment. Defendants argued that 1 without proof of ownership , Moreno

- Godoy could not prove damages and 2 therefore could not proceed . In t urn, Moreno

- Godoy argued that it was not 3 necessary for him to prove ownership, but alternatively, that he had proven 4 ownership as a matter of law. 5

The court determined that in order to prevail on any of his claims, 6

Moreno

- Godoy would need to prove that he in fact owned the disputed money. 7

The court understood Moreno

- Godoy to be seeking only restitution damages, in 8
other words, to have the $100,000 returned to him

. On the district court’ s theory, 9

Moreno

- Godoy could not seek restitution of money that was never his to begin 10

with. To that end, it found that Moreno

- Godoy and Al Kasser’s deposition 11 testimony would be insufficient to establish Moreno

- Godoy’s ownership because 12

neither of them ha d been a percipient witness to the transfer. T he court noted
, 13
however, that Moreno

- Godoy had also submitted a declaration from Habbal, 14 who could potentially testify about the transfer from her personal knowledge, 15

and thus provide a basis to find that the m oney did belong to Moreno

- Godoy. 16 With that possibility left open , the district court denied summary judgment to 17 GDB, Kartagener, and Moreno

- Godoy. 18
At the same time, however , the district court granted summary judgment 19

for defendant Stavis . Citing New York Partnership Law § 26 (b), it found that 20

Stavis was acting in his capacity as a GDB partner in a limited liability 21 partnership when he requested and accepted the $100,000 fro m Kartagener , and 22

that he was therefore immune from liability in his personal capacity

. 2319

- 1279 Moreno

- Godoy v. Kartagener

9 In the lead

- up to trial , Moreno

- Godoy sought leave for Habbal, who lives in 1 Spain, to provide her trial testimony by a pretrial video deposition. The court 2 granted the motion, and Habbal testified that she had sold Moreno

- Godoy’s cars 3 and “put the money for him.” JA 637

. S he , however, said that she eventually 4 gave that money to Moreno

- God o y’s daughters and suggested that the money 5 paid to Kartagener instead came out of savings Moreno

- God o y had accrued over 6 years of working for Alkaport, Al Kassar’s company. D espite this possible 7 inconsistency, Habbal emphasized her belief that the money belonged to 8

Moreno

- Godoy. She said that Al Kassar had called her to tell her “that this is 9 money for Felipe, belong to Felipe.” JA 644. Later she spoke directly to Moreno

10 Godoy, who “ta lked to me and said the name of the lawyer to transfer the money 11

to him.” Id. 12

In view of Habbal’s testimony, defendants moved in limine to exclude her 13 testimony as to the ownership of the $100,000, and also moved for summary 14 judgment a second time . They argued that Habbal’s testimony was inadmissible 15 hearsay because the only source of her knowledge regarding who owned the 16

money was conversations with her husband. Moreno

- Godoy countered that 17 Habbal was competent to testify about the ownership of the funds, and that other 18

admi ssible evidence supported his claim to it as well

. The district court agreed 19

with the defendants. It excluded Habbal’s testimony on the grounds that it 20

would be inadmissible if offered for its truth value. And, absent Habbal’s 21 testimony, the court found th at Moreno

- Godoy could not maintain any of his 22

claims. 2319

- 1279 Moreno

- Godoy v. Kartagener

10 T he district court concluded that the remaining evidence i n the record was 1 insufficient to support Moreno

- Godoy’s claim to the money. It noted that his 2 theory of ownership had changed: Before Habbal’s deposition, Moreno

- Godoy 3

had maintained that he instructed members of the Al Kassar family to sell some 4 valuable assets, like cars and watches, to pay for his legal defense. Al Kassar’s 5 testimony and Habbal’s initial declaration advanced the same theory. After 6 Habbal’s deposition, however, Moreno

- Godoy’s ownership theory changed to 7 suggest that Moreno

- Godoy had earned the money as an Alkaport employee. 8

As a result, the district court determined that the record contained 9 insufficient admissible evidence to support Moreno

- Godoy’s ownership claim. 10 Without proof of ownership, the district court reasoned, Moreno

- Godoy could 11
not prove that defendants’ breach dama ge d him , and hence granted summary 12 judgment to defendants on all of the remaining claims. 13 On appeal, Moreno

- Godoy argues that the district court erred in granting 14 summary judgment to the defendants and in denying him summary judgment

. 15

He contend s that New York law does not require him to prove ownership to 16

maintain a breach

- of

- contract claim . In the alternative, he argues that even if 17 proof of ownership were required, the record support s his claim that the money 18

was his . Finally, he argues that Sta vis should be reinstated as a defendant 19 because he is personally and fully liable under New York Partnership law. 20

Defendants do not here contest the underlying breach of contract . They 21 instead mount a defense based on the purported necessity of determinin g whose 22 $100,000 paid Kartagener ’s fee

. For the following reasons, we agree with 23

Moreno

- Godoy

. 2419

- 1279 Moreno

- Godoy v. Kartagener

11 DISCUSSION 1 It is tempting to boil this case down to one question: Who owns the 2 $100,000 that Habbal paid to Kartagener? But that would be a mistake. Under 3
New York law, Moreno

- Godoy can maintain a breach

- of

- contract claim without 4 any showing that he owned the $100,00 0 . His additional quasi

- contract claims for 5 unjust enrichment, money had and received, and constructive trus t , however, do 6 require such proof . And we find that the record contains sufficient admissible 7 evidence from which a jury could determine that Moreno

- Godoy owned the 8
funds, and hence that he may pursue these quasi

- contract claims. We also find 9 sufficient evidence in the record from which a jury could conclude that Stavis can 10 be held personally liable for refusing to return funds that did not belong to him 11

or to his firm. 12 We review a district court’s grant of summary judgment de novo. ING 13

B ank N.V. v. M/V TEMARA, IMO No. 9333929 , 892 F.3d 511, 518 (2d Cir. 2018)

. 14 “Summary judgment is properly granted when there is no genuine issue of 15 material fact and one party is entitled to judgment as a matter of law.” Zalaski v. 16 City Bridgeport Police De p’t , 613 F.3d 336, 340 (2d Cir. 2010) (per curi a m ); see Fed. 17 R. Civ. P. 56(a). A dispute about a “genuine issue” exists for summary judgment 18 purposes where the evidence is such that a reasonable jury could decide in the 19

nonmovant's favor. Beyer v. Cty. of Nassau , 524 F.3d 160, 163 (2d Cir. 2008). “[I]n 20 assessing the record to determine whether there is a genuine issue to be tried as 21 to any material fact, the court is required to resolve all ambiguities and draw all 22 permissible factual inferences in favor of the party against whom summary 23 judgment is sought.” Holcomb v. Iona College , 521 F.3d 130, 137 (2d Cir. 2008). 2419

- 1279 Moreno

- Godoy v. Kartagener

12 A. Breach of Contract 1 To prevail on a breach

- of

- contract claim in New York, a plaintiff must 2

prove : “(1) the existence of a contract, (2) performance by the party seeking 3 recovery, (3) nonperformance by the other party, and (4) damages attributable to 4

the breach.” RCN Telecom Servs., Inc. v. 202 Ctr. St. Realty LLC ., 156 F. App'x 349, 5

350

– 51 (2d Cir. 2005) ; accor d Riccio v. Genworth Fin. , 124 N.Y.S.3d 370, 372 (App. 6
Div. 2020)

. In this case, the only element in dispute is damages. The district court 7

believed that Moreno

- Godoy ’s only path to prov ing damages was to show that 8 he owned the $100,000. This was legal error. 9

Moreno

- Godoy may pursue his breach

- of

- contract claim regardless of 10 whether the funds belonged to him. Simply put, Moreno

- Godoy and Al Kassar 11 fulfilled their end of the bargain, but Kart agener did not. It follows that they may 12 sue for breach of contract regardless of whether either of them owned the 13 $100,000 consideration paid to Kartagener. See Markson v. Markson’s Furniture 14

Stores , 195 N.E. 824, 826 (N.Y. 1935) ; see also 22 N.Y. Jur. 2d Contracts § 62; 3 15 Williston on Contracts § 7:20 (4th ed.); Restatement (Second) of Contracts § 71(4). 16
Of course, Moreno

- Godoy must still prove damages

. In New York, it is 17

well established that the non

- breaching party may recover “ general damages 18 which are the natural and probable consequence of the breach. ” Kenford Co. v. 19 Cty. of Erie , 73 N.Y.2d 312, 319 ( N.Y. 1989 )

. These direct damages are usually 20 expectation damages, measured “ by what it would take to put the non

- breaching 21 party in the same position that it would be in had the breaching party performed 22 as promised under the contract .” Latham Land I, LLC v. TGI Friday’s, Inc

. , 948 23
N.Y.S.2d 147, 151

- 52 (N.Y. App. Div. 2012) (citing J.R. Loft us, Inc. v. White , 85 2419

- 1279 Moreno

- Godoy v. Kartagener

13 N.Y.2d 874, 877 (N.Y. 1995 ) ; Simon v. Electrospace Corp. , 28 N.Y.2d 136, 14 5 (N.Y. 1

1971 ) ; Restatement [Second] of Contracts § 347). 2 2

The district court seemed to believe that Moreno

- Godoy was not damaged 3 by Kartagener’s breach because his merits appeal of his original conviction was 4

unsuccessful. But e ven if Kartagener’s performance “would [not] have done” 5

Moreno

- Godoy “any good” in hindsight, that does not negate Moreno

- Godoy’s 6 ability to demonstrate expectation damages. 7 In New York, “the general rule is that damages for breach of contract are 8 computed at the time of breach.” J.M. Rodriguez & Co. v. Moore

- McCormack Lines, 9

Inc ., 299 N.E.2d 243, 244 (N.Y. 1973). In other words, a party’s “breach and the 10
loss caused [is] fixed and determined .

. . [when] plaintiff’s cause of action 11

accrued.” Simon v. Electrospace Corp ., 269 N.E.2d 21, 26 (N.Y. 1971). And it is from 12 that “time when the value to him of defendant’s performance [is] to be 13 measured” because “[i]t was then that plaintiff was to be made whole.” Id

. As we 14 have previously noted
, New York courts reject damages awards calculated with 15

2 Although Moreno

- Godoy’s submissions placed a greater emphasis on a theory of restitution damages, he has also offered a theory of expectation damages throughout this litigation. In his pro se complaint, for example, he wrote that he “wanted an additional t hird attorney with a fresh set of eyes to work ... on [the] appeal.” J A 26 (alterations omitted). He then explained that the defendants’ decision not to return the $100,000 left him “no money to hire additional Counsel” and this “forced [him] to let Stavis solely represent him on appeal.” J A 32. Indeed, the district court init ially understood Moreno

- Godoy to be advancing a theory of expectation damages. When it denied the defendants’ motions to dismiss, it concluded that that Moreno

Godoy had “adequately plead[ed]” that Stavis and GDB’s breach “damaged Godoy by costing him $100 ,000 and by impeding Godoy’s ability to use that money to choose and hire a different attorney .” J A 80 (emphasis added).19

- 1279 Moreno

- Godoy v. Kartagener

14 the benefit of hindsight. See Lucente v. IBM Corp ., 310 F.3d 243, 262 (2d Cir. 2002) 1 (quoting Aroneck v. Atkin , 456 N.Y.S.2d 558, 559 (App. Div. 1982)). 2
In this case, Moreno

- Godoy was deprived of Kartagener’s legal assistance, 3 and he is entitled to damages for the value of those services if he can “show a 4

stable foundation for a reasonable estimate ” of that value. Tractebel Energy Mktg., 5 Inc. v. AEP Power Mktg., Inc ., 487 F.3d 89, 110 (2d Cir. 2007) (interpreting New 6 York law)

. And t his remains true even if we believe that Kartagener’ s services 7 would not have changed the outcome of Moreno

- Godoy’s ap peal. See 8

Chamberlain v. Parker , 45 N.Y. 569, 572 (1871) (providing that even when “it could 9 be seen that performance would have not benefited” a party who contracted for 10 construction services on his land, that party “would be entitled to recover the 11

value of the work and labor which the defendant was to perform, although the 12 thing to be produced had no marketable value”). 3 13 While the bulk of our analysis focuses on Moreno

- Godoy’s legal 14 arguments, we pause to address Stavis and GDB’s implicit argument that they 15

3 It is worth noting that New York law permits intended third

- party beneficiaries to pursue breach

- of

- contract claims under certain circumstances. Hence, e ven if Moreno

- Godoy was not a party to the Kartagener Agreement, which he is, and thus the money clearly had not come from him, Moreno

- Godoy still would have an avenue to maintain breach of contract against these defendants

. Under New York law, an intended third

- party beneficia ry is found where “reliance by the beneficiary [is] both reasonable and probable.” Fourth Ocean Putnam Corp. v. Interstate Wrecking Co. , 66 N.Y.2d 38, 44, (N.Y. 1985). Intended third

- party beneficiaries may sue for breach of contract where the contract “ expressly contemplates that [the defendant] will undertake an obligation . . . on behalf of the [plaintiffs].” Bayerische Landesbank, New York Branch v. Aladdin Cap. Mgmt. LLC , 692 F.3d 42, 57 (2d Cir. 2012). Moreno

- Godoy could pass this test. At oral argument, Moreno

- Godoy understandably rejected any arguments based on third

- party beneficiary status, asserting forcefully his rights as a party to this contract.19

- 1279 Moreno

- Godoy v. Kartagener

15 earned the $100,000 through legal services rendered , and therefore are entitled to 1 keep it

. Contract law principles suggest otherwise . Stavis agreed to represent 2

Moreno

- Godoy and Al Kassar on all post

- verdict matters in their criminal case 3

for a flat fee of $125,000. No one disputes that the fee was paid in full, nor do 4 Stavis or GDB argue that they entered into a binding modification of that 5 agreement with Moreno

- Godoy and Al Kassar. The existence of the Kartagener 6 Agreement does not change the terms of the GDB Agreement, which required 7 Stavis to litigate the case in the Second Circuit in exchange for $125,000, no more 8

and no less. And New York regulations prohibit unilateral changes in 9
representation agreements. New York Rule of Professional Con duct 1.5(b)

. 10
B. Quasi

- Contract Claims 11 In order to prevail on his additional claims
, Moreno

- Godoy must
, 12
however, prove that he owned the $100,000

. As the district court recognized, his 13

claims for unjust enrichment, money had, and constructive trust all sound in 14

qua s i

- con tract, a theory that “ rests upon the equitable principle that a person 15 shall not be allowed to enrich himself unjustly at the expense of another .” State v. 16 Barclays Bank of N.Y. , 5 63 N.E.2d 11, 15 (N.Y. 1990)

. In fact, “money had” 17 explicitly requires that the defendant “received money belonging to the 18 plaintiff .” Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat. Ass'n , 731 F.2d 19 112, 125 (2d Cir. 1984) (citing Miller v. Schloss
, 218 N.Y. 400, 409 (N.Y. 1916 ) ). If 20

Moreno

- Godoy did not own the money , neither Stavis nor GDB could have been 21 enriched “at the expense of” Moreno

- Godoy by retaining the se funds, and the 22
quasi

- contr a ct claims would fail. Barclays Bank , 563 N.E.2d at 14

- 15 (dismissing 23 the plaintiff’s claim for unjust enrichment because it “never acquired a property 2419

- 1279 Moreno

- Godoy v. Kartagener

16 interest in [the funds] and cannot be said to have suffered a loss”); see also Nat’l 1 Bank of Com. v. Manufacturers’ & Traders’ Bank , 25 N.E. 355, 356 (N .Y. 1890) (“The 2 action cannot be sustained as in effect one for money had and received, as it does 3 not appear that defendant received moneys belonging to the plaintiff, or to 4 which it was entitled.”). 5 i. Evidence of Ownership 6
On our review of the record, we find the admissible evidence supporting 7

Moreno

- Godoy’s claim that he owned the funds to be sufficient for his quasi

8

contract claims to reach a jury. The d istrict c ourt held that neither Moreno

9 Godoy nor Al Kassar were “competent” to testify as to ownership because they 10 were in prison at the time of the transfer and therefore lacked first

- hand 11 knowledge. But regardless of whe re they were at the time of the transfer
, it does 12 not follow that they could not offer admissible testimony that the jury coul d 13 consider in determining where the funds originated. A rule to the contrary could 14 bar incarcerated people from providing valuable testimony based on their first

15 hand knowledge simply because some subsequent events transpired outside 16 prison walls

. And of course there is no rule requiring any one witness to provide 17

a complete universe of evidence supporting a party’s claim

. 18

Defendants make much of the fact that Moreno

- Godoy submitted 19 conflicting evidence about which of his assets generated the $100,000 tr ansfer . It 20 is certainly true that Moreno

- Godoy at one time suggested that it came from 21

money that Al Kassar’s family acquired by selling his property, and that he also 22 suggested that he earned the money by working for Al Kassar, who simply held 2319

- 1279 Moreno

- Godoy v. Kartagener

17 it for him. Through ou t this litigation, however, Moreno

- Godoy has maintained 1

that the money was his and a reasonable jury could believe that it was

. 4 2

Moreno

- Godoy provided various sworn statements that in different 3 degrees support his direct ownership tes timony

. First, i n his initial sworn 4 deposition, he testified that he asked Al Kassar’s family and associates to sell 5 some of his possessions in anticipation of future legal fees. Second, Al Kassar 6

also testified that “the $100,000 came from the selling of property.” JA 499. 7
Third, Moreno

- Godoy argued in his initial motion for summary judgment 8 that the funds paid to Kartagener included both his “ past earnings as an 9 employee of Al Kassar’s company, Alkaport

. . . and the proceeds of s ales of his 10

assets .” Mem. of Law in Supp. of Pl

. ’s Mot. for Summary Ju d gment 4 , Dist. Ct. 11

Dkt. No. 124. In support of the former claim, Moreno

- Godoy pointed to the 12 portion of his deposition where he testified that after he entered into a n 13 employment contract with Alkaport and Al

- Kassar addressed his salary, 14

Moreno

- Godoy told Al

- Kassar to “just keep it, if I need anything, I ’ ll ask for it.” 15
J A 351. 16

Fourth
, while Habbal testified that she transferred the money from the sale 17

of Moreno

- Godoy’s cars to his daughters
, she further testified that Al Kassar told 18

her th at Moreno

- Godoy’s money which was to be transferred to Kartagener 19

4 Moreover, this is not a case in which the only evidence for Moreno

- Godoy’s ownership of the funds is Moreno

- Godoy’s own shifting testimony. We have observed that when earlier “testimony is contradicted by evidence other than the deponent ’ s subsequent affidavit,

. . . the concern that the proffere d issue of fact is a mere ‘sham’ is alleviated.” Palazzo ex rel. Delmage v. Corio , 232 F.3d 38, 43

- 44 (2d Cir. 2000).19

- 1279 Moreno

- Godoy v. Kartagener

18 stemmed from his work for Alkaport. Finally, she at one point suggested that she 1 had also spoken directly to Moreno

- Godoy in prison, who also asked that she 2 transfer the money. She recalled Moreno

- Godoy saying “transfer my money to 3 [Kartagener].” Id

. Even if Habbal’s testimony is inadmissible to prove that 4

Moreno

- Godoy owned the funds, i t might be admissible to show that the only 5 person who ever claimed ownership of the funds transfe rred to Kartagener was 6

Moreno

- Godoy

. 7

F ifth , Moreno

- Godoy offered a sworn declaration from Juan Rodriguez 8 Ocaña, a lawyer and former business associate of Alkaport who said he had 9 personal knowledge that “Mr. Moreno

- Godoy worked for Alkaport for about ten 10 years. During that time, he did not draw a salary; instead the money he earned 11 was put in savings for him by the Al Kassar family.” JA 274

. Moreno

- Godoy 12 supported t his assertion t hat he worked for Alkaport with documentary 13
evidence, including a business card and work authorization, as well as a work 14 contract listing him as a “salaried” employee of Habbal’s

. 5 15

5 Moreno

- Godoy did not place Ocana on his list of proposed witnesses in the parties’ Proposed Joint Preliminary Pre

- Trial Order, which wa s submitted after the district court initially denied the defendants’ motions for summary judgment. That omission does not justify the district
court ’s failure to address this sworn declaration when granting the defendants’ motion for summary judgment. The declaration was discussed in Moreno

- Godoy’s summary judgment submissions, and the declaration does not suggest that the testimony it contains would be inadmissible at trial. The district court could have determined that Moreno

- Godoy was not planning to ca ll Ocana to testify at the trial only because of the unusual procedural posture of the case, which involved a second round of summary judgment motions subsequent to the parties’ trial preparations.19

- 1279 Moreno

- Godoy v. Kartagener

19 Taken together , we find this evidence sufficient to create a genuine 1
question of fact as to Moreno

- Godoy’s ownership of the relevant funds. 2 Accordingly, that question must be decided by a jury

. 3 C. Stavis’s Personal Liability 4 Finally, we are not persuaded that Stavis may not be held personally 5

liable in this case. New York Partnership Law § 26(2) generally shields partners 6 in limited liability partnerships (“LLP”) from personal liability for actions taken 7 as part of the course of the LLP’s business. S ubsection (c)
, however, provides the 8 following exception: 9
[E] ach partner, employee or agent of a partnership which is a 10 registered limited liability partnership shall be personally and fully 11

liable and accountable for any negligent or wrongful act or 12

misconduct committed by him or her . . . while rende ring 13 professional services on behalf of such registered limited liability 14 partnership

. 15

If Moreno

- Godoy’s allegations are true, Stavis refused to return funds that 16 did not belong to him or to his firm. He also failed to provide a written 17 engagement letter entitling him to the $100,000 after Kartagener dropped out

. 18

This may constitute unilateral changes to the scope of the agreed

- to 19 representation in contravention of New York regulations. New York Rule of 20

Professional Conduct 1.5(b) (requiring attorneys to communicate to a client “the 21 scope of the representation” and “any changes in the scope of the representation 22 or the basis or rate of the fee or expenses”). Moreover, t hese actions could qualify 23

as a “wrongful act or misconduct” fo r which Stavis may be personally liable even 2419

- 1279 Moreno

- Godoy v. Kartagener

20 if the actions did violate a specific rule of professional conduct

. S ee Schuman v. 1 Gallet, Dreyer & Berkey, L.L.P. , 689 N.Y.S.2d 628, 629 (Sup. Ct. 1999) (holding that 2 a partner in an LLP may be held personally liable for his role in “wrongfully 3 disburs[ing]” a client’s funds), aff’d 719 N.Y.S.2d 864 (App. Div. 2001) (holding 4 that these allegations “sufficiently state claims against” that partner 5 “individually”). 6

That Stavis disbursed these funds to GDB and not to his personal bank 7 account or that the Bar Disciplinary Committee did not discipline Stavis for these 8

actions does not preclude his personal liability

. See Scarborough v. Napoli, Kaiser & 9
Bern, LLP , 880 N.Y.S. 2d 800, 801

- 02 (App. Div. 2009) (holding that lawyers in an 10 LLP may be held personally liable for specific “wrongful” conduct without 11 discussing allegations that the lawyers personally benefited from the conduct or 12 were disciplined as a result); Connolly v . Napoli, Kaiser & Bern, LLP , 817 N.Y.S.2d 13
872, 874

- 75, 879 (Sup. Ct. 2006) (same). Furthermore, the Bar Disciplinary 14 Committee made no factual findings regarding Moreno

- Godoy’s complaint. It 15 merely “determined to take no further action and closed the file .” J A 299. 16 Accordingly , we find that summary judgment for Stavis was unwarranted. 17

D

. Kartagener ’s Alternative Arguments 18 Kartagener argues that we may affirm the district court’s decision to grant 19 summary judgment in his favor for two additional reasons. First, Kart a gener 20

contends that , pursuant to the impossibility doctrine, he is not liable for breach of 21

contract because he was unab le to obtain a security clearance to review classified 22

materials relevant to Moreno

- Godoy ’s and Al Kassar’s appeal and therefore 23 could not represent them in the appeal

. We agree with the district court that 2419

- 1279 Moreno

- Godoy v. Kartagener

21 summary judgment was not warranted on this ground. Even if the impossibility 1

doctrine could “excuse [ Kartagener ] performance ,” it could not relieve him 2 “from the obligation of repayment of the amount received .” Sokoloff v. Nat'l City 3 Bank of N.Y, 204 N.Y.S. 69, 71 (App. Div. 1924); accord Univ. of Minn. v. Agbo , 673 4 N.Y.S.2d 812, 813 (App. Term 1998)

. 5
Second, Kartagener claims that he should face no consequences for his 6

failure to return his retainer fee to Moreno

- Godoy because he gave the funds to 7 Stavis in his capacity as a lawyer

— and therefore an agent

— for Moreno

- Godoy. 8 Again, the district court correctly declined to grant summary judgment to 9 Kartagener on this ground. Even if Kartagener ’s agency theor y were sound as a 10 general matter, at this stage of the litigation the record does not indicate that 11 Kartagener g a ve the funds to Stavis because he believed Stavis was acting as an 12 agent for Moreno

- Godoy. To the contrary, the record suggest s that Kartagener 13

had no intention that the funds be handled in accordance with Moreno

- Godoy’s 14

wishes. The record lacks evidence that Kartagener attempted to contact Moreno

15 Godoy, his client, before he transferred $ 9 0,000 of the $100,000 retainer fee to 16

Stavis , and Kartagener even admitted that he transferred the last $10,000 to 17

Stavis after Moreno

- Godoy sent him a letter demanding that he not return the fee 18

to Stavis

. 19 Accordingly, we find that summary judgment for Kartagener is 20

unwarranted. 21

CONCLUSION 22

We VACATE the district court’s decision and REMAND for further 23 proceedings consistent with this opinion

. 24