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15-3095-cv 

Makhoul v. Watt, Tieder, Hoffar & Fitzgerald LLP, et al. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 6th day of October, two thousand sixteen. 

PRESENT: JON O. NEWMAN, 

JOSÉ A. CABRANES, 

Circuit Judges, 

JANE A. RESTANI, 

 Judge.*

 

GEORGE MAKHOUL, INDIVIDUALLY, AND AS SUCCESSOR 

IN INTEREST TO M.E.S., INC., 

Plaintiff-Appellant, 15-3095-cv 

v. 

WATT, TIEDER, HOFFAR & FITZGERALD, L.L.P.,

MARK SGARLATA, CHRISTOPHER BRASCO, VIVIAN 

KATSANTONIS, CHRISTOPHER MICHAEL ANZIDEI, 

Defendants-Appellees. 

 

 

*

 The Honorable Jane A. Restani, Judge for the United States Court of International Trade, 

sitting by designation. 
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FOR PLAINTIFF-APPELLANT: Edward T. DeLisle, Cohen Seglias Pallas 

Greenhall & Furman PC, Philadelphia, 

PA. 

FOR DEFENDANTS-APPELLEES: Marian C. Rice, L’Abbate, Balkan, 

Colavita & Contini, L.L.P., Garden City, 

NY. 

Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Pamela K. Chen, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the September 2, 2015 judgment of the District Court be 

and is hereby AFFIRMED. 

Plaintiff-appellant George Makhoul, individually and as successor in interest to M.E.S., Inc. 

(“MES”), appeals from a September 2, 2015 decision of the District Court granting summary 

judgment to defendants-appellees Watt, Tieder, Hoffar & Fitzgerald, LLP, Mark Sgarlata, 

Christopher Brasco, Vivian Katsantonis, and Christopher Michael Anzidei (collectively, “WTH&F”). 

Makhoul alleges that WTH&F jointly represented both its own client, Safeco Insurance of America 

(“Safeco”), and MES in negotiations with the U.S. Army Corps of Engineers (“COE”) following 

MES’s default terminations on three federal-funded projects bonded by Safeco. Based on the alleged 

existence of an attorney-client relationship between MES and the defendants, plaintiff asserted 

claims for legal malpractice, breach of fiduciary duty and duty of care, tortious interference with a 

contract, and unjust enrichment. The District Court granted summary judgment to defendants on all 

of Makhoul’s claims. 

On appeal, Makhoul principally asserts that the District Court failed to consider relevant 

evidence, weighed the evidence it did consider improperly, and inappropriately based its ruling on an 

improper assessment of Makhoul’s credibility. We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal. 

“[W]e review de novo a [district court’s] grant of summary judgment under Rule 56 [of the 

Federal Rules of Civil Procedure], construing all evidence in the light most favorable to the nonmoving party.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015). “Summary judgment is required 

where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 39 (2d Cir. 

2015) (quoting Fed. R. Civ. P. 56(a)). Although the evidence is viewed in favor of the non-moving 

party, “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be 

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys 

v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal alterations and quotation marks 
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omitted). It is insufficient to “rely on conclusory allegations or unsubstantiated speculation” to 

defeat a motion for summary judgment. Id. at 554 (internal quotation marks omitted). 

Here, an independent review of the record and relevant case law confirms that the District 

Court properly granted the defendants summary judgment. We affirm substantially for the reasons 

stated by the District Court in its thorough September 2, 2015 decision and order. 

A. Legal Malpractice 

To sustain a claim of legal malpractice under New York law, the plaintiff must show the 

existence of an attorney-client relationship. Hanlin v. Mitchelson, 794 F.2d 834, 838 (2d Cir. 1986). As 

extensively detailed by the District Court, the plaintiff has failed to adduce sufficient evidence to 

demonstrate the presence of a genuine dispute of material fact as to the existence of an attorneyclient relationship between MES and WTH&F. Based on the undisputed facts in the record, there is 

no evidence of a fee arrangement between MES and WTH&F,1

 no evidence of any retainer or 

contract, and no evidence that WTH&F held itself out as MES’s counsel. The plaintiff 

acknowledged that MES was excluded from Safeco’s negotiations with the COE. And the extensive 

documentary evidence, meticulously examined and described by the District Court, belies the 

plaintiff’s claim that he and MES reasonably believed such a relationship existed. 

Plaintiff argues that his affidavit, as well as the affidavits of three non-parties,2 raise a 

material question of fact as to the existence of an attorney-client relationship. Given the 

overwhelming documentary evidence to the contrary, the District Court rightly found that 

Makhoul’s affidavit is so blatantly contradicted by the record evidence that no reasonable jury could 

believe its version of events. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell 

two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury 

could believe it, a court should not adopt that version of the facts for purposes of ruling on a 

motion for summary judgment.”); see also Jeffreys, 426 F.3d at 553–55. Nor do the non-party 

affidavits, which are either silent or largely speculative as to the relationship between WTH&F and 

MES, raise a genuine issue of material fact. 

 

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 The fact that the plaintiff presented evidence that MES agreed to pay WTH&F’s legal fees 

and requested and received invoices for WTH&F’s legal fees from Safeco does not establish the 

existence of an attorney-client relationship. MES had agreed to indemnify Safeco for any costs, 

including legal fees, as a result of its default on the COE contracts. As the District Court correctly 

noted, MES’s duty to reimburse Safeco for legal fees charged to Safeco by WTH&F does not 

establish an attorney-client relationship between MES and WTH&F. 

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 These non-parties are Mark T. Zawisny and Michael H. Payne, MES’s attorneys, Jitendra 

Hirani, the Managing Partner of H/MES, and Henry C. Chan, an attorney for Hirani Engineering & 

Land Surveying P.C. 
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Plaintiff also attests that the District Court improperly based its decision on an inappropriate 

evaluation of Makhoul’s credibility. The District Court, however, expressly acknowledged that its 

role on summary judgment did not include assessing Makhoul’s credibility. Its findings were clearly 

grounded in the record as a whole, not on Makhoul’s credibility.

B. Fiduciary Duty 

“Under New York law, where a claim for breach of fiduciary duty is premised on the same 

facts and seeking the identical relief as a claim for legal malpractice, the claim for fiduciary duty is 

redundant and should be dismissed.” Nordwind v. Rowland, 584 F.3d 420, 432–33 (2d Cir. 2009) 

(internal quotation marks omitted). Though the plaintiff argues that the District Court failed to 

consider that its fiduciary duty claims were “plead [sic] in the alternative,” it is distinctly clear that his 

legal malpractice claim and fiduciary duty claims are premised on the same legal advice purportedly 

rendered by WTH&F. Accordingly, the District Court properly granted summary judgment to the 

defendants on the plaintiff’s fiduciary duty claims. 

C. Tortious Interference 

The elements of a claim for tortious interference with a contract under New York law are 

“the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of 

that contract, defendant’s intentional procurement of the third-party’s breach of the contract 

without justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding 

Co. v. Smith Barney Inc., 668 N.E.2d 1370, 1375 (N.Y. 1996). The plaintiff, citing only his affidavit as 

an example, argues that the District Court failed to properly consider other evidence in support of 

this claim. These bare allegations, which are largely “conclusory allegations or unsubstantiated 

speculation,” are not enough to sustain his tortious interference claim. See Jeffreys, 426 F.3d at 554 

(internal quotation marks omitted). 

D. Unjust Enrichment 

Lastly, under New York law, a plaintiff may prevail on a claim for unjust enrichment by 

demonstrating “(1) that the defendant benefitted; (2) at the plaintiff’s expense; and (3) that equity 

and good conscience require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of 

N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006) (internal quotation marks omitted). On appeal, the 

plaintiff claims that WTH&F was enriched by receiving payments from Safeco for legal fees and by 

Safeco’s demand that MES indemnify it. As the District Court properly held, Safeco’s right to 

recover these fees from MES is based on a separate indemnity agreement executed as part of 

Safeco’s surety relationship with MES and, accordingly, does not form a basis for an unjust 

enrichment claim. 
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CONCLUSION 

We have reviewed all of the arguments raised by Makhoul on appeal and find them to be 

without merit. We thus AFFIRM the September 2, 2015 judgment of the District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk