We read a lot of legal malpractice cases, and have heard a lot of legal malpractice dismissal motions, and some arguments are both common and predictable. Counsel will argue that the case is ridiculous, or angrily state that it completely lacks merit, or that it was started only to avoid paying legal fees. These arguments are usually untrue, yet, there are truly ridiculous cases that make their way into court. For your consideration: Peltier v Smith 2016 NY Slip Op 51476(U) Decided on October 13, 2016 Supreme Court, Essex County Muller, J.
“Briefly, plaintiff KarenMarie Adams (now known as KarenMarie Peltier) purchased commercial property on Front Street, Village of Keeseville, Essex County,[FN1] from Donald and Caroline Loreman in February 2003. She received funding for the transaction from the Village of Keeseville Revolving Loan Fund. She planned to operate a bed and breakfast, gift shop and/or tea room on the premises. Defendant Kathryn Wilson Smith entered into a partnership with plaintiff in the Fall of 2004 to do business together with her at the premises. Plaintiff fell behind on her payments to the Village and, by mid-2005, the Village had obtained summary judgment against plaintiff on a mortgage foreclosure action regarding the Front Street premises. In August 2005, plaintiff agreed to transfer the building to defendants Kathryn and Kenneth Smith (hereinafter referred to as the Smiths), generating funds to pay the past due amounts to the [*2]Village.[FN2] Plaintiff planned to remain in business at the premises with Kathryn Smith. Also in August 2005, an ongoing dispute between plaintiff and the prior owners (the Loremans) — who had remained as tenants operating a laundromat at the premises — escalated and resulted in an incident in which plaintiff and Kathryn Smith were charged with harassment. Defendant William Meconi, an attorney, appeared in Village Court in September 2005 and obtained an adjournment in contemplation of dismissal for plaintiff.
By December 2005, the relationship between plaintiff and Kathryn Smith had soured as plaintiff ostensibly continually neglected to make any financial contribution to the business. The business failed and the property ultimately ended up being transferred to the Smiths’ mortgagee. Believing that she had been deprived of property as a result of a multiple of wrongs by a host of individuals and entities, plaintiff commenced an action in Federal Court in 2007. She later commenced this action on November 15, 2010. In this action, plaintiff’s numerous contentions include that she had some items of personal property at the premises and she claims that, shortly after the business relationship broke down, the Smiths sold her personal property without her permission and kept the proceeds. She further contends that the Smiths together with Meconi (and others) engaged in, among other things, various coordinated efforts and nefarious conduct aimed at depriving her of her interest in the business and real property in the Village. She additionally asserts as to Meconi that, from mid-2009 through 2010, he represented an owner who evicted her from other premises located on Pulitzer Way in the Town of Jay, Essex County. She claims that this conduct by Meconi constituted, among other things, a conflict of interest.
The Smiths made a motion to dismiss this action pursuant to CPLR 3211, which the Court partially granted in October 2011 by dismissing all causes of action against the Smiths except for fraud and unjust enrichment.[FN3] Causes of action asserted against Meconi appear to include, among other things, malpractice, fraud, violation of civil rights, defamation, harassment and civil violation of the Racketeer Influenced and Corrupt Organizations Act (see 18 USC § 1961 et seq. [hereinafter RICO]). Disclosure has now been completed. Both the Smiths and Meconi have made motions for summary judgment and dismissal of the complaint.”
“Although it is difficult to discern the particular causes of action being alleged against Meconi, the Court initially finds that, to the extent plaintiff is alleging a civil rights violation and/or civil RICO claim, Meconi is entitled to summary judgment dismissing such causes of action for the reasons set forth in earlier decisions addressing similar assertions by plaintiff against others (see Decision & Order, Sup Ct, Essex County, Oct. 25, 2011, at 3-4; see also Adams v Smith, 2015 WL 4139686, 2015 US Dist Lexis 88873, supra; Adams v Smith, 2010 WL 3522310, 2010 US Dist Lexis 90729, supra). Further, “[w]ith regard to the alleged harassment, ‘New York does not recognize a common-law cause of action to recover damages for harassment'” (Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 , quoting Monreal v New York Dept. of Health, 38 AD3d 1118, 1119 ). Turning to the apparent malpractice claim, the “[e]lements of a cause of action for legal malpractice include the existence of an attorney-client relationship, that ‘the attorney 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'” (McPhillips v Bauman, 133 AD3d 998, 999-1000 , lv denied 27 NY3d 901 , quotingDombrowski v Bulson, 19 NY3d 347, 350 ). The elements for fraud are set forth above under the discussion of the Smiths’ motion. As for plaintiff’s defamation cause of action, “plaintiff must prove that [Meconi] made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se” (Roche v Claverack Coop. Ins. Co., 59 AD3d 914, 916 ; see Loch Sheldrake Beach & Tennis Inc. v Akulich, 141 AD3d 809, 815 ).
Meconi submitted in support of his motion, among other things, his own affidavit. He states that he was retained by plaintiff in September 2005 regarding the criminal harassment charge resulting from plaintiff’s incident with the Loremans [Meconi affd.]. He made two appearances in Village Court. On September 13, 2005, he persuaded the court to lift an order of protection thus permitting plaintiff to have access to the Front Street property where her bed and breakfast (as well as Loremans’ laundromat) was located [Meconi affd.]. On September 20, 2005, he was able to get the harassment charged against plaintiff adjourned in contemplation of dismissal [Meconi affd.]. According to Meconi, his representation of plaintiff ended on September 20, 2005 and he thereafter never again represented her [Meconi affd.].
A little less four years after Meconi had represented plaintiff in Village Court, he was retained by an individual who owned a building in the Town of Jay, Essex County, where plaintiff was a tenant and she was behind on her rent [Meconi affd.]. After serving various notices, Meconi commenced an eviction proceeding against plaintiff and was eventually successful in having her evicted [Meconi affd.]. He states that no information gleaned from representing her in 2005 was relevant in any fashion when be brought the eviction proceeding against her in 2009 [Meconi affd.]. He further categorically denies conspiring with anyone regarding the Front Street property or engaging in any activity that could be considered fraudulent regarding plaintiff [Meconi affd.]. He denies defaming plaintiff and notes that the purported statements of his that she contends were defamatory are not even identified by plaintiff [Meconi affd.].
Meconi has met his burden of by producing competent proof establishing the merits of his [*5]motion. With respect to the alleged malpractice, he has shown that any representation ended in September 2005, there was no continuous representation so as to toll the statute of limitations (see e.g. Deep v Boies, 121 AD3d 1316, 1318 , lv denied 25 NY3d 903 ) and this action was not commenced within three years of September 2005 (see CPLR 214 ). Even if there was not a statute of limitations problem, Meconi’s representation produced a favorable result for plaintiff with respect to the harassment charge. During that representation, he did not obtain information which created a conflict as to the eviction proceeding that was commenced in 2009. He denies in his sworn statement conspiring with or acting in concert with anyone regarding plaintiff’s interest in the Front Street property. He has established that his conduct was neither fraudulent toward plaintiff nor did he defame her. Further, plaintiff has failed to set forth the allegedly specific defamatory words as required by law (see CPLR 3016 [a]; Matter of La Barbera v Town of Woodstock, 29 AD3d 1054, 1057 , lv dismissed 7 NY3d 844 ; Dillon v City of New York, 261 AD2d 34, 38 ).
In opposition to Meconi’s motion, plaintiff submitted an unsworn document as she did in opposing the Smiths’ motion. This document does not have probative value and is inadequate to raise a factual issue within the context of a motion for summary judgment. Moreover, even if the Court was to consider plaintiff’s proof as competent, it fails to set forth sufficient factual allegations to defeat Meconi’s motion. Plaintiff’s submissions are — as with the Smiths’ motion — replete with conclusory comments, speculation, expressions of hope, characterizations of what she thinks witnesses would say (without producing affidavits from those witnesses), her personal opinion of the veracity of defendants and other unsubstantiated allegations. Although plaintiff is proceeding pro se and “courts will routinely afford pro se litigants some latitude, [nonetheless] a pro se litigant ‘acquires no greater right than any other litigant’ and will be held to the same standards of proof as those who are represented by counsel” (Duffen v State of New York, 245 AD2d 653, 653-654  [internal citations omitted], quoting Roundtree v Singh, 143 AD2d 995, 996 ; see HSBC Bank USA N.A. v Pacyna, 112 AD3d 1246, 1247 ).[FN4] Plaintiff has failed to raise a triable issue of fact and, accordingly, Meconi’s motion must also be granted.”