Kaplan v Khanna  2015 NY Slip Op 25158 [48 Misc 3d 665]  May 15, 2015  Braun, J. illustrates a virtual compendium of errors in litigation.  Starting with making up the names of statutes, and failing to serve a complaint within 120 days, trying to sue a criminal defense attorney for mistakes without “actual innocence alleged, each were cause for dismissal.  On Friday, we’ll look at the “satisfaction” and settlement issue.

“This is an action with two formally designated causes of action, for legal malpractice and breach of contract, plus numerous others mentioned by pro se plaintiff in his papers, in connection with defendant’s representation of plaintiff in a criminal prosecution in the United States District Court, District of New Jersey, in which plaintiff pleaded guilty. Defendant moves to dismiss the complaint, pursuant to CPLR 3211 (a) (8), because service of the summons and complaint was not completed within the required 120 days of filing thereof, in violation of CPLR 306-b, and for failure to state a cause of action under CPLR 3211 (a) (7). Plaintiff filed a “Counter Motion” “pursuant to NY State Court Rules L.R. 83.1,” “Rule 47-Jury Trials-Civil Actions,”^[FN1] and “for Discovery.”^[FN2]

[1] The first issue to determine is whether to apply New York or New Jersey law. Matters of procedure are to be{**48 Misc 3d at 667} determined under New York law (see Tanges v Heidelberg N. Am., 93 NY2d 48, 53 [1999]; Lerner v Prince, 119 AD3d 122, 127-128 [1st Dept 2014]). Whether the summons and complaint were timely served is a procedural issue under CPLR 306-b, a New York statute governing the time period of service of process to obtain personal jurisdiction over a party in a New York action (see Federal Ins. Co. v Fries, 78 Misc 2d 805, 808 [Civ Ct, NY County 1974] [“matters dealing with the conduct of the litigation are procedural”]). The summons and complaint were not timely served within the required 120 days under CPLR 306-b,^[FN3] and plaintiff did not seek leave to extend the time in which to serve them and does not do so in his “Counter Motion” (see Qing Dong v Chen Mao Kao, 115 AD3d 839, 840 [2d Dept 2014]; Webb v Greater N.Y. Auto. Dealers Assn., Inc., 93 AD3d 561, 562 [1st Dept 2012]). Thus, the motion must be granted for this reason.

[2] As to whether the complaint alleges a cause of action, “[t]he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; see generally Cooney v Osgood Mach., 81 NY2d 66, 72-73 [1993]). Here, there is no conflict. Plaintiff’s complaint fails to state a cause of action under both New York and New Jersey law.

On a motion pursuant to CPLR 3211 (a) (7), a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Lee v Dow Jones & Co., Inc., 121 AD3d 548, 549 [1st Dept 2014];{**48 Misc 3d at 668} Siegmund Strauss, Inc. v East 149th Realty Corp., 104 AD3d 401, 403 [1st Dept 2013]). This motion also must be granted under CPLR 3211 (a) (7).

Where a plaintiff pleads guilty in an underlying criminal prosecution, expressly admitting his or her guilt, and that plea remains undisturbed, it precludes a legal malpractice claim as a matter of law (see Carmel v Lunney, 70 NY2d 169, 173 [1987] [“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. [*2]Here, because plaintiff’s conviction by plea of a misdemeanor violation of the Martin Act has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action” (citation omitted)]; Alampi v Russo, 345 NJ Super 360, 371, 785 A2d 65, 72 [2001] [to permit the plaintiff in a legal malpractice action to “go behind his federal guilty plea . . . would undermine the integrity of the federal guilty plea in pursuit of a highly speculative thesis—that plaintiff would have achieved an ‘optimum outcome’ of no prosecution if his first attorney had in retrospect used different tactics”]).”