Entry of judgment: You Snooze, You Lose!

Young adult man looking at his smart phone with a shocked, surprised but slightly comical expression. The photo illustrates an article by Richard Klass about default judgment.

The subcontractors brought an action against the general contractor and its principal alleging breach of an oral contract made in January 2007 for failing to pay for construction services rendered on a building located in Flushing. The action was dismissed as to the individual and the subcontractors’ request for a default judgment against the general contractor was denied. The subcontractor then brought an action against the contractor who hired them alleging breach of the oral contract; however,they were unable to collect on the judgment because the corporation was out of business.

Queens County action

The subcontractors then brought an action in the Supreme Court, Queens County only against the property owner, alleging unjust enrichment for the contracting services rendered by them. Despite service of the Summons and Complaint in 2011, the plaintiffs did not seek the entry of a default within one year thereafter.

Kings County action

The subcontractors then brought yet another action in the Supreme Court, Kings County against the general contractor, contractor and property owner, alleging both breach of contract and unjust enrichment. A default judgment was granted in their favor against all of the defendants except for the property owner. The property owner moved for dismissal of the action, which was granted.

Back to Queens

In 2017, the subcontractors moved for a default judgment against the property owner in the 2011 action.

In response to the motion, the property owner retained Richard A. Klass, Your Court Street Lawyer. The property owner cross-moved, pursuant to CPLR 3215(c), for dismissal of the action based upon the failure to take proceedings for entry of judgment within one year after the default. By Order dated April 6, 2018, the Supreme Court denied the motion for a default judgment and granted the cross-motion for dismissal of the action. The Court held that “plaintiff’s counsel fails to proffer a reasonable excuse for its delay in timely making the instant application. After reviewing the extensive procedural history of the case and companion cases, it remains unclear why plaintiffs waited almost two years after [the court] dismissed their identical claim in Kings County to seek a default judgment against the defendant in this action.”

The Court further rejected the claim made in opposition to the cross-motion that the matter should not be deemed abandoned. Specifically, the court held, “While plaintiffs may contend they were in settlement negotiations and other litigation activity with the defendant, those activities ceased in May of 2015 when the matter was dismissed. In addition, plaintiffs fail to explain why it commenced a second action including the defendant in Kings County after it had already commenced the instant action or why they then let the instant matter linger over five and half years.”

Failure to take proceedings within one year after default

The subcontractors appealed the Supreme Court Order to the Appellate Division, Second Department. In affirming the Order and dismissing the appeal, the appellate court held, in Karamuco v Gavriel Plaza, Inc., 172 AD3d 832, 833 [2d Dept 2019]:

“CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed”’ (Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020, quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671).

The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed’” (HSBC Bank USA, N.A. v Grella, 145 AD3d at 671, quoting CPLR 3215[c]; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846). The determination of whether an excuse is reasonable is committed to the sound discretion of the motion court (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069; Baruch v Nassau County, 134 AD3d 658, 659).”

Here, the plaintiffs took no proceedings for the entry of a default judgment within one year following the defendant’s default, and they failed to establish a reasonable excuse for their delay in moving for leave to enter a default judgment. Accordingly, the lawsuit was dismissed.

R. A. Klass
Your Court Street Lawyer

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Once someone has sued …and the case is dismissed…

Scales of justice illustrating article about legal malpractice.

Once someone has sued another and the case is dismissed, the plaintiff’s claim is barred or precluded. In Manko v Gabay, 175 AD3d 484 [2d Dept 2019], the court held:

The plaintiff subsequently commenced the instant action against, among others, the Gabay defendants, asserting causes of action against them, inter alia, to recover damages for legal malpractice and breach of fiduciary duty. The Gabay defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them. The Supreme Court granted that branch of the motion, and the plaintiff appeals.

We agree with the Supreme Court’s determination to grant that branch of the Gabay defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as barred by the doctrine of res judicata, based upon the dismissal, on the merits, of the complaints insofar as asserted against them in the four prior actions. Under the doctrine of res judicata, or claim preclusion, “a valid final judgment bars future actions between the same parties on the same cause of action” (Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647). “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158).

This Court takes a “pragmatic approach” to determining what constitutes a single transaction or series of transactions for the purposes of res judicata (Coliseum Towers Assoc. v. County of Nassau, 217 A.D.2d 387, 390, 637 N.Y.S.2d 972). Thus, events are part of the same transaction or series of transactions where their “foundational facts” are related in “time, space, origin, or motivation,” where they “form a convenient trial unit,” and where “treatment [of the foundational facts] as a unit conforms to the parties’ expectations” (id. at 390–391, 637 N.Y.S.2d 972 [internal quotation marks omitted] ).

The doctrine of collateral estoppel, or issue preclusion, is “a component of the broader doctrine of res judicata which holds that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action” ( *133 Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). Collateral estoppel will bar relitigation of an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d at 349, 690 N.Y.S.2d 478, 712 N.E.2d 647; see Jeffreys v. Griffin, 1 N.Y.3d 34, 39, 769 N.Y.S.2d 184, 801 N.E.2d 404; Pinnacle Consultants v. Leucadia Natl. Corp., 94 N.Y.2d 426, 432, 706 N.Y.S.2d 46, 727 N.E.2d 543).

Here, the complaints in the four prior actions commenced by the plaintiff against the Gabay defendants were all dismissed insofar as asserted against them on the merits pursuant to the order dated May 7, 2012. The claims asserted in the instant action arise from the same transaction or series of transactions that gave rise to the four prior actions, i.e., the legal assistance provided by Gabay to the plaintiff from November 2007 to December 2007. The majority of the facts alleged in the five complaints are nearly identical, with the only differences being additional causes of action asserted in this action and different entities named as defendants of which Gabay is a principal, differences which nonetheless relate “in time, space, origin [and] motivation” to the claims adjudicated in the four prior actions (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723 [internal quotation marks omitted]; see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192–193, 445 N.Y.S.2d 68, 429 N.E.2d 746). Inasmuch as all issues related to the plaintiff’s claims sounding in simple legal malpractice were fully and finally decided in the four prior actions, they are barred by principles of res judicata and collateral estoppel (see Kret v. Brookdale Hosp. Med. Ctr., 61 N.Y.2d 861, 863, 473 N.Y.S.2d 970, 462 N.E.2d 147; see also Altamore v. Friedman, 193 A.D.2d 240, 244–245, 602 N.Y.S.2d 894). The plaintiff’s additional causes of action alleging, among other things, deprivation of constitutional rights and conspiracy “could have been raised in the prior litigation” and, consequently, are precluded by the doctrine of res judicata (Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269; see Rowley, Forrest, O’Donnell & Beaumont, P.C. v. Beechnut Nutrition Corp., 55 A.D.3d 982, 984, 865 N.Y.S.2d 390).

R. A. Klass
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Where former client sues for legal malpractice but previously filed for bankruptcy

Where the former client sues for legal malpractice but has previously filed for bankruptcy, there must be an evaluation as to whether the legal malpractice claim is part of the bankruptcy estate or if the former client may pursue the action, as held in Gobindram v Ruskin Moscou Faltischek, P.C., 2019 NY Slip Op 06190 [2d Dept Aug. 21, 2019]:

We find unpersuasive the defendants’ additional alternative contention that the legal malpractice cause of action was properly dismissed pursuant to CPLR 3211(a)(3) because that cause of action belongs to the bankruptcy estate and the plaintiff lacked standing to assert it. “ On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing ” (BAC Home Loans Servicing, LP v. Rychik, 161 A.D.3d 924, 925, 77 N.Y.S.3d 522; see CPLR 3211[a][3]; MLB Sub I, LLC v. Bains, 148 A.D.3d 881, 881–882). “ [T]he motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing ” (U.S. Bank N.A. v. Clement, 163 A.D.3d 742, 743, 81 N.Y.S.3d 116 [internal quotation marks omitted]; seeMLB Sub I, LLC v. Bains, 148 A.D.3d at 882, 50 N.Y.S.3d 410).

Here, in response to the defendants’ prima facie showing that the plaintiff’s legal malpractice cause of action was the property of the bankruptcy estate (seeWright v. Meyers & Spencer, LLP, 46 A.D.3d 805, 849 N.Y.S.2d 274; Williams v. Stein, 6 A.D.3d 197, 198, 775 N.Y.S.2d 255; In re Strada Design Assoc., Inc., 326 B.R. 229, 237–240 [S.D. N.Y.]), the plaintiff raised a question of fact as to whether the bankruptcy trustee had abandoned the cause of action in accordance with Bankruptcy Code (11 USC) § 554(a) and had authorized the plaintiff to pursue it. Accordingly, dismissal of the legal malpractice cause of action for lack of standing is not available at this juncture.

R. A. Klass
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Sometimes, a lawsuit is dismissed based upon the concept of claim preclusion…

Sometimes, a lawsuit is dismissed based upon the concept of claim preclusion or collateral estoppel, which was defined by the court in Sang Seok Na v Schietroma, 172 AD3d 1263 [2d Dept 2019]:

“ The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same ” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487). The doctrine of collateral estoppel applies when: “ (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits ” (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [internal quotation marks omitted] ).

R. A. Klass
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Legal malpractice case could not proceed since damages claim was speculative.

In Miami Capital, LLC v Hurwitz, 101 NYS3d 598 [1st Dept 2019], the court determined that the client’s legal malpractice case could not proceed since the damages claim was speculative, holding:

Defendant’s motion was properly granted because while plaintiff anticipates that it could be subject to a rescission claim at some point in the future, such alleged damages are purely speculative and not yet ripe. Since damages in a legal malpractice case are designed “ to make the injured client whole ” (Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 42, 556 N.Y.S.2d 239, 555 N.E.2d 611 [1990] ), having failed to plead actual damages, plaintiff’s complaint fails to state a claim (see Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept. 2015], lv denied 27 N.Y.3d 904, 2016 WL 1692057 [2016]; Lavanant v. General Acc. Ins. Co. of Am., 212 A.D.2d 450, 622 N.Y.S.2d 726 [1st Dept. 1995] ).

R. A. Klass
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Court denied the law firm’s motion to dismiss

In Jadidian v Drucker, 171 AD3d 1146, 1147-48 [2d Dept 2019], the court denied the law firm’s motion to dismiss the complaint, holding:

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the *1148 facts as alleged fit within any cognizable legal theory (see CPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Santaiti v. Town of Ramapo, 162 A.D.3d 921, 924–925, 80 N.Y.S.3d 288; Berlin v. DeMarzo, 150 A.D.3d 1185, 52 N.Y.S.3d 878). A cause of action to recover damages for legal malpractice requires proof that the defendant “ failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession ” and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [internal quotation marks omitted]; see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

Here, accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint sufficiently alleges a cause of action to recover damages for legal malpractice. The complaint alleges that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to account for the potential outcome of the nuisance action on the use and occupancy of the premises and to protect the plaintiffs’ interests in relation thereto. The complaint further alleges that the defendant’s negligence proximately caused the plaintiffs to sustain actual and ascertainable damages in lost rent and in settling the action brought by the Hive, and thus, validly states a cause of action to recover damages for legal malpractice (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 443, 835 N.Y.S.2d 534, 867 N.E.2d 385; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592; Wolstencroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

Dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence “ utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law ” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106, 73 N.Y.S.3d 519, 96 N.E.3d 784; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Here, the documentary evidence submitted by the defendant **76 failed to utterly refute the plaintiff’s factual allegations. Accordingly, we also agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

R. A. Klass
Your Court Street Lawyer

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Duplicative causes of action against an attorney

When a client alleges duplicative causes of action against an attorney based upon different theories of liability, the court can dismiss those duplicative causes of action.

“ To state a claim for breach of fiduciary duty, a plaintiff must allege the existence of a fiduciary relationship, misconduct by the other party, and damages directly caused by that party’s misconduct ” (Castellotti v Free, 138 AD3d 198, 209 [1st Dept 2016]). “ [A] fiduciary relationship arises between two persons when one of them is under a duty to act or give advice for the benefit of another upon matters within the scope of the relation ” (Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584, 593-594 [2012], rearg denied 19 NY3d 1065 [2012] [internal quotation marks and citation omitted]). The existence of a duty is essential and may not be imposed unilaterally (see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 45 AD3d 33, 36-37 [1st Dept 2008], affd 11 NY3d 15 [2008]). Whether a fiduciary relationship exists involves a fact-specific inquiry (see EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). A claim for breach of fiduciary duty also requires “ the violation of some duty due to an individual, which duty is a thing different from a mere contractual obligation ” (see Batas v Prudential Ins. Co. of Am., 281 AD2d 260, 264 [1st Dept 2001] [internal quotation marks and citation omitted]).

A breach of fiduciary duty claim is duplicative of a legal malpractice claim when both are based upon the same facts and seek the same damages (see Barrett v Goldstein, 161 AD3d 472, 473 [1st Dept 2018]; accord Cohen, 115 AD3d at 513). As applied herein, plaintiff has established that the fiduciary duty counterclaim is grounded upon the same facts as the legal malpractice counterclaim. Defendant has neither attempted to distinguish the two counterclaims nor addressed why the second counterclaim should not be dismissed.

Adam Leitman Bailey, P.C. v Pollack, 63 Misc 3d 1229(A) [Sup Ct 2019]

 

R. A. Klass
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[ duplicative causes of action ]

…Court held that collateral estoppel (issue preclusion) barred a legal malpractice action

In Sang Seok Na v Schietroma, 2019 NY Slip Op 04017 [2d Dept May 22, 2019], court held that collateral estoppel (issue preclusion) barred a legal malpractice action, holding:

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d at 598, 79 N.Y.S.3d 636). To establish proximate causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Kluczka v. Lecci, 63 A.D.3d 796, 797, 880 N.Y.S.2d 698).

Here, the Schietroma defendants established their entitlement to summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of collateral estoppel (see Karimian v. Time Equities, Inc., 164 A.D.3d 486, 489, 83 N.Y.S.3d 227). “ The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same ” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487). The doctrine of collateral estoppel applies when: “ (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits ” (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [internal quotation marks omitted] ).

In order for the plaintiff to recover damages for legal malpractice against the Schietroma defendants based on their alleged failure to advise him of a potential legal malpractice claim against S & M, the plaintiff must prove that he would have prevailed in a legal malpractice action against S & M, but for the Schietroma defendants’ negligence. In order for the plaintiff to prevail in a legal malpractice action against S & M, the plaintiff must prove that he would have prevailed in the Greyhound action, but for S & M’s negligence.

The issue of whether the plaintiff would have succeeded on the merits in the Greyhound action was raised, necessarily decided, and material in the first legal malpractice action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Sang Seok NA v. Schietroma, 163 A.D.3d 597, 79 N.Y.S.3d 636). Thus, the Schietroma defendants established, as a matter of law, that their alleged negligence did not proximately cause the plaintiff’s damages by showing that the plaintiff would not have prevailed in a legal malpractice action against S & M, and that they were entitled to summary judgment dismissing the complaint based on the doctrine of collateral estoppel (see generally Lamberti v. Plaza Equities, LLC, 161 A.D.3d 841, 841–842, 73 N.Y.S.3d 901; Matter of Trump Vil. Apts. One Owner v. New York State Div. of Hous. & Community Renewal, 143 A.D.3d 996, 40 N.Y.S.3d 157). Accordingly, we agree with the Supreme Court’s determination to grant the Schietroma defendants’ motion for summary judgment dismissing the complaint.

R. A. Klass
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Standard on deciding motions to dismiss

In a decision reminding defendants of the standard on deciding motions to dismiss, the court in Jadidian v Drucker, 2019 NY Slip Op 03033 [2d Dept Apr. 24, 2019] held:

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged 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 CPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Santaiti v. Town of Ramapo, 162 A.D.3d 921, 924–925, 80 N.Y.S.3d 288; Berlin v. DeMarzo, 150 A.D.3d 1185, 52 N.Y.S.3d 878). A cause of action to recover damages for legal malpractice requires proof that the defendant “ failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession ” and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [internal quotation marks omitted]; see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

Here, accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint sufficiently alleges a cause of action to recover damages for legal malpractice. The complaint alleges that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to account for the potential outcome of the nuisance action on the use and occupancy of the premises and to protect the plaintiffs’ interests in relation thereto. The complaint further alleges that the defendant’s negligence proximately caused the plaintiffs to sustain actual and ascertainable damages in lost rent and in settling the action brought by the Hive, and thus, validly states a cause of action to recover damages for legal malpractice (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 443, 835 N.Y.S.2d 534, 867 N.E.2d 385; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592; Wolstencroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

Dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence “ utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law ” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106, 73 N.Y.S.3d 519, 96 N.E.3d 784; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Here, the documentary evidence submitted by the defendant failed to utterly refute the plaintiff’s factual allegations. Accordingly, we also agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

R. A. Klass
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[ motions to dismiss ]

Order of Attachment / Slash and Burn

Somewhat gory staged photo of a man with clown makeup, sitting on the ground, holding a hatchet, with blood on his shirt. Illustrates a case study about an order of attachment

[Reader Advisory:
This case study begins with a graphic and possibly upsetting description of violent events leading up to a criminal case. Then, the narrative continues with a discussion of the accompanying civil case. If the reader prefers to begin with the discussion of the civil case, they may skip to the second heading “Order of Attachment.”]

He Drove from New York to Florida.

“Jeff” drove to his ex-wife, “Lauren”‘s Florida condominium and attacked her in her home. Jeff handcuffed Lauren’s arms and legs so she was unable to move. Then, Jeff repeatedly cut, beat, suffocated, threatened and tortured his ex-wife for over six hours. Throughout this ordeal, Jeff forced Lauren to answer intimate questions by threatening her with a knife he held up to her neck, putting tape over her mouth and suffocating her by putting a pillow over her face. Jeff referred to this as “phase one” of his plan. He threatened to do her more harm during “phase two” of his planned attack.

While being held against her will, Lauren continuously pled with Jeff for her life and safe release to no avail. Lauren’s son-in-law saw the ordeal as it was taking place because Jeff was broadcasting it online. He called the police, who arrested Jeff before “phase two” could take place and, luckily, before further harm could be done to Lauren.

In the criminal case, the jury rendered verdicts against Jeff, finding him guilty of aggravated battery with a deadly weapon; kidnapping; aggravated assault with a deadly weapon; and assault. Jeff was sentenced to 15 years in prison.

Order of Attachment

Lauren retained a personal injury attorney to sue Jeff in a civil action in New York for the intentional torts he committed against her. Jeff owned a couple of buildings in New York and a half-interest in the Florida condominium. The attorney hired Richard A. Klass, Your Court Street Lawyer, as special counsel to seek to ” attach ” Jeff’s properties to ensure that he wouldn’t sell, mortgage or dispose of them in order to evade payment of monetary damages to Lauren.

An ” Order of Attachment ” is a provisional remedy used by a judge to ensure that there will be assets and property belonging to the defendant to pay any prospective judgment to be awarded to the plaintiff after trial. The operative rule, CPLR 6201, provides, in relevant part:

An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when:

3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts;

As held by the Second Department in Mineola Ford Sales Ltd. v Rapp, 242 AD2d 371, 371 [2d Dept 1997], ” In order to obtain an order of attachment under CPLR 6201(3), the plaintiff must demonstrate that the defendant has or is about to conceal his or her property in one or more of several enumerated ways, and has acted or will act with the intent to defraud his or her creditors, or to frustrate the enforcement of a judgment in favor of the plaintiff (see, Arzu v. Arzu, 190 A.D.2d 87, 91, 597 N.Y.S.2d 322; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 772, 500 N.Y.S.2d 278). The moving papers must contain evidentiary facts-as opposed to conclusions-proving the fraud (Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra; see also, Rothman v. Rogers, 221 A.D.2d 330, 633 N.Y.S.2d 361; Rosenthal v. Rochester Button Co., 148 A.D.2d 375, 376, 539 N.Y.S.2d 11). In addition to proving fraudulent intent, the plaintiff must also show probable success on the merits of the underlying action in order to obtain an order of attachment (see, CPLR 6212[a]; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra; Computer Strategies v. Commodore Business Machs., 105 A.D.2d 167, 172, 483 N.Y.S.2d 716). “

In her request for the Order of Attachment, Lauren provided recordings of jailhouse telephone conversations between Jeff and another party which demonstrated that Jeff intended on quickly transferring his various real estate interests, seemingly to avoid a prospective judgment against him. The judge decided to issue the Order of Attachment in order to keep Jeff’s real estate in place to ensure that Lauren would have available assets from which to collect her potential judgment.

Out-of-State Property May Be Attached.

As to the Florida condominium unit jointly owned by Lauren and Jeff, the judge determined that he had jurisdiction to issue an injunction to prevent Jeff from disposing of his interest in it. While generally a New York State court has jurisdiction over only property located within the State, it can exercise jurisdiction over property in another state under certain circumstances. See, Gryphon Domestic VI, LLC v. APP International Finance Company, B.V., 41 AD3d 25 [1st Dept. 2007] (New York court can restrain transfers of property outside the state so long as it has jurisdiction over the transferor).

The defendant Was Deemed a New York Domiciliary.

Jeff made a request of the judge to dismiss the lawsuit against him, claiming that the court did not have jurisdiction over him because he was now considered a Florida resident (because he ‘resides’ in jail in Florida). This request was challenged by showing the judge that Jeff’s last residence before entering prison was New York.

In Farrell v Lautob Realty Corp., 204 AD2d 597, 598 [2d Dept 1994], the Second Department held that:

…it is long-established law in New York that a person does not involuntarily lose his domicile as a result of imprisonment. …As stated by the Court of Appeals: ” [A] patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution ” (Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111, 115).

Further, the fact that the prison is located in a different state from the defendant’s previous state of domicile is irrelevant to the above jurisdictional rule. See, Poucher v. Intercounty Appliance Corp., 336 F.Supp.2d 251, 253 (E.D.N.Y.2004) (” It is well-established that a prisoner does not acquire a new domicile when he is incarcerated in a state different from his previous domicile.”)

Notice of Attachment

The judge granted the Order of Attachment in favor of Lauren. This allowed a Notice of Attachment to be filed against each of Jeff’s properties. A Notice of Attachment is similar to a Notice of Pendency (Lis Pendens) in that it serves as notice to others that there is a pending lawsuit that may affect the ownership of real estate. Once the Order of Attachment was granted, the parties entered into a settlement agreement, where Jeff agreed to transfer to Lauren one of his buildings and his half-interest in the condominium.

Prior results do not guarantee a similar outcome.
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R. A. Klass
Your Court Street Lawyer

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