Legal malpractice cases, as we have said, cover events and issues all over the world. Here, a land-owner was unhappy about trespassers over his property, trying to get to a beach. The annoyance led to litigation, to appeals, to legal malpractice and judiciary law § 487 claims. Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP 2017 NY Slip Op 32694(U) December 7, 2017
Supreme Court, Suffolk County Docket Number: 15-18431 Judge: David T. Reilly is just another example of the extreme reach of legal malpractice and JL § 487 cases.
“The genesis of this action (Palmieri IT) lies in another matter entitled Paul Palmieri v. Town of Babylon, Suffolk County Supreme Court, Index No. 17598-1999 (Palmieri l). In Palmieri I, which has endured its own tortured history, the plaintiff commenced an action against the Town of Babylon seeking to recover damages for alleged trespass by unspecified individuals onto his property using a public access way from a public road. Plaintiff lives near the end off Little East Neck Road which terminates at the Great South Bay. It is from that terminus that plaintiff alleges the unspecified individuals gained access to his property.
A short recitation of the procedural history of Palmieri I, as culled from the record currently before the Court, is necessary for a full understanding of the instant determination. Palmieri I was seemingly settled when the parties entered into a Stipulation dated July 17, 2004 which was filed in the County Clerk’s office on August 6, 2004. According to the Stipulation, the Town agreed to erect or cause to be erected an eight (8′) foot high chain-link fence having a gate secured by a lock essentially blocking off public access to plaintiff’s property. The fence was to be built within sixty (60) days of the signing of the Stipulation. On July 24, 2006 the Town of Babylon moved to vacate that Stipulation based upon their contention that the proposed fence was illegal because it blocked navigable waters. A Justice of this Court [Cohalan, J.l agreed and granted that motion on June 11 2007. Plaintiff then appealed to the Appellate Division, Second Department. The Appellate Division reversed this Court in a decision dated November 25, 2008. At that point in the litigation rather than comply with its obligations under the Stipulation, the Town of Babylon filed a motion pursuant to CPLR §3211 seeking dismissal of the plaintiffs’ Complaint. That motion was denied and the decision affirmed (see Palmieri v. Town of Babylon, 87 AD3d 625 ). Of note, the Appellate Division, Second Department declined to impose sanctions against the Town of Babylon, as requested by the plaintiff. This Court is unaware of what, if anything, occurred in the next six (6) years, however, on May 16, 2014, plaintiff moved for contempt against the Town of Babylon, the Supervisor and the Town Council. It appears from the record before the Court that the defendants therein claimed that the Town’s failure to erect the fence was due to the changing topography or the subject area in that Hurricane Sandy caused sufficient erosion such that the location of the proposed fence was now underwater thereby invoking the jurisdiction of the Department of Environmental Conservation (DEC). The Town defendants maintained that approval from that agency was now necessary before the fence could be erected. On July 29th and 31st, 2015 that matter came to a hearing and in a decision dated October 29, 2015 the Court (Hudson, J.) denied the application for contempt based solely on an insufficiency of proof, but warned the parties that they should move expeditiously to fulfill the obligations imposed by the Stipulation.”
“After careful consideration, the Court finds that the plaintiffs causes of action sounding in tortious interference with a contract and violation of Judiciary Law §487 must be dismissed based upon the doctrine of collateral estoppel. Throughout the plaintiffs’ Complaint arc allegations that the defendants herein engaged in a scheme with the Town of Babylon to deny the plaintiff the relief afforded him within the 2004 Stipulation of Settlement. As the Palmieri I litigation endured the torturous history evidenced by the present record before the Court. certain factors occurred which operated to stall the Town’s obligation to construct the fence at issue, most notably the motions and appeals which litter the record. “