Weinberg v Kaminsky 2018 NY Slip Op 07652 Decided on November 13, 2018
Appellate Division, First Department is an example of the low-success attempt to recast a previously dismissed legal malpractice cause of action in another form. Here, the Court simply wiped out the second attempt.
“Order, Supreme Court, New York County (Manuel Mendez, J.), entered February 22, 2017, which denied plaintiff’s motion for a stay of eviction, and order, same court and Justice, entered August 4, 2017, which, to the extent appealed from, granted defendants David Kaminsky, Danielle Kaminsky (together, the Kaminsky defendants), Jeffrey Asher, Robinson Brog Leinwand, Green, Genovese & Gluck P.C. (collectively, the Asher defendants), and Leslie Sultan’s motion to dismiss the complaint as against them, denied the Asher defendants’ motion for sanctions, and denied plaintiff’s cross motion to amend the complaint, and order, same court and Justice, entered January 25, 2018, which granted defendants Linda Salamon and 371 West 46th Street Properties, LLC’s (collectively, the Salamon defendants) motion to dismiss the complaint as against them and denied plaintiff’s cross motion to amend the complaint, unanimously affirmed, without costs.
The claims against Sultan and the Asher defendants are barred by the doctrine of res judicata (see Weinberg v Sultan, 142 AD3d 767 [1st Dept 2016] [affirming, inter alia, summary dismissal of legal malpractice claims]). Although the present claims against these defendants do not sound in malpractice, they arise out of the same transaction as the dismissed malpractice claims (see Matter of Josey v Goord, 9 NY3d 386, 389-390 (2007]). Further, they are duplicative of the dismissed malpractice claims, since they do not allege independent intentionally tortious conduct (see Atton v Bier, 12 AD3d 240, 242 [1st Dept 2004]).
The claims against the remaining defendants are not subject to dismissal under res judicata, because they were dismissed not on the proof but on the sufficiency of the pleadings (see Imprimis Invs. v Insight Venture Mgt., 300 AD2d 109, 110 [1st Dept 2002]). However, the instant complaint, while more verbose than the prior complaint, still fails to state a cause of action for “overreaching, undue influence and fraud” (see Weinberg v Sultan, 142 AD3d 767). Many of the allegations in the complaint and the proposed amended complaint are made upon information and belief, which is “not sufficient to establish the necessary quantum of proof to sustain allegations of fraud” (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 ).”