Greenberg v Hertzfeld & Rubin, P.C. 2015 NY Slip Op 30268(U) February 25, 2015 Supreme Court, New York County Docket Number: 650960/2014 Judge: Debra A. James is a good example of the microscopic nature of Supreme Court’s review of a legal malpractice complaint for standing and retainer contract issues. The case involves a web of will and estate matters, with several attorney firms getting in the mix.
“This action arises from plaintiff Mark Greenberg’s (Greenberg) retention of Hertzfeld, pursuant to a retainer letter agreement letter dated March 4, 2011, as supplemented by a March 28, 2011 letter, between Hertzfeld and Greenberg. Under the terms of the retainer agreements, Hertzfeld undertook to represent Greenberg in connection with litigation related to the estates of Greenberg’s father-in-law, Harry Yaros, who died in 2006, and Greenberg.’ s wife, Laura Yaros Greenberg (Laura Greenberg), who died in 2009. Both estates are currently being administered in· the Surrogate’s Court, Queens County.
The first retainer letter agreement described the services to be performed, as follows, in pertinent part: legal matters relating to litigation over [Harry Yaros’s] estate and related matters. [Hertzf eld] will undertake a comprehensive review of all current litigations and provide [Greenberg] with recommendations as to how to proceed. Thereafter, [Hertzfeld] will implement those recommendations, provided [Greenberg wishes] us to do so and we agree that it is appropriate for us to do so.
The supplemental retainer agreement notes that Hertzfeld had undertaken its review of pending litigation and states that Greenberg has retained Hertzf eld to represent him in the following matters: 1) seeking to have Greeriberg appointed as administrator of his wife’s estate; 2) representing Greenberg and his wife’s estate as beneficiaries of the estate of Harry Yaros, and in seeking to have a 2004 will admitted to probate in the Harry Yaros estate, or alternatively, representing them in regard to any other will admitted to probate; 3) representing Greenberg and Laura Greenberg’s estate as beneficiaries of a joint account with right of survivorship [the Joint Account] with Harry Yaros, and related controversies; 4) representing Greenberg in connection with any motion for sanctions against Greenberg in the Harry Yaros estate proceeding; and 5) representing Greenberg and his wife’s estate in seeking to have a permanent executor other being administered other than Neal Yaros appointed for the estate of Harry Yaros. The supplemental retainer agreement provides further: [e]xcept as set forth above, we are not at this time undertaking to represent you in connection with any other matters we discussed, including but not limited to claims you may have against other attorneys, tax issues relating to personal income taxes or gift tax returns you may have filed, or claims that you and your wife’s estate may have against third parties such as the guardian for your father-in-law in connection with a final accounting filed by him or otherwise.
The amended verified complaint and Greenberg’s affidavit are vague and imprecise, and are riddled with factual inconsistencies. Thus, it is difficult to ascertain the factual basis of the complaint, even under the lenient standards applicable to a CPLR 3211 motion to dismiss, in order to determine whether Greenberg has any cognizable cause of action. It is hornbook law that the determination on a motion based upon the complaint is limited to a review of the four corners of such pleading, which must be construed liberally, with all reasonable factual allegations accepted as true, and the plaintiff being [* 7]accorded the benefit of every reasonable inference (see Esposito v Noto, 90 AD3d 825 [2d Dept 2011]) . The test is whether the allegations of the complaint provide “‘sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments’ [citations omitted]” (Moore v Johnson, 147 AD2d621, 621 [2d Dept 1989]).
Accordingly it is ORDERED that the motion of defendants Hertzfeld & Rubin, P.C., Edward L. Birnbaum, James S. Kaplan, Ian Ceresney, Bryan Lipsky, and Herbert Rubin, pursuant to CPLR 3211 (a) (1) and (7), and CPLR 3013, to dismiss the amended verified complaint, is granted; and it is further ORDERED that the amended verified complaint is dismissed; 19 [* 19]and it is further ORDERED that the Clerk shall enter judgment accordingly, with costs and disbursements, as taxed by the Clerk of the Court, upon presentment of an appropriate bill of costs.