Defendants Fail to Require Joinder or Obtain Dismissal
Defendants in this legal malpractice case argued that there was a missing party, and that the lack of privity between plaintiff and the defendant attorney was fatal. They lost in Supreme Court, and on appeal, continued to lose.
Mr. San, LLC v Zucker & Kwestel, LLP 2013 NY Slip Op 08416 Decided on December 18, 2013 Appellate Division, Second Department held that Justice Bucaria was correct when he denied defendant's motion.
"Applying these principles, the Supreme Court properly denied those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first cause of action, which sought to recover damages for legal malpractice. While the complaint does not allege an attorney-client relationship between the plaintiffs and the defendants, it sets forth a claim which falls within "the narrow exception of fraud, collusion, malicious acts or other special circumstances" under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity (Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112 [internal quotation marks omitted]; see Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512; Griffith v Medical Quadrangle, Inc., 5 AD3d 151, 152). Furthermore, the documentary evidence submitted by the defendants does not conclusively establish a defense to this cause of action as a matter of law (see CPLR 3211[a]).
Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was pursuant to CPLR 1001 to direct the plaintiffs to join BarCred Holdings Affiliates, LLC (hereinafter BarCred), as a party plaintiff. The defendants failed to demonstrate that BarCred needed to be joined in order to accord complete relief between the parties, or that BarCred would be inequitably affected by a judgment in this action absent its joinder (see CPLR 1001[a]; Mason Tenders Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 84 AD3d 754, 755; Spector v Toys "R" Us, Inc., 12 AD3d 358, 359; O'Brien v Town of Huntington, 308 AD2d 479, 481). "