Litigators should read Garr Silpe, P.C. v Gorman 2020 NY Slip Op 31517(U) May 20, 2020 Supreme Court, New York County Docket Number: Index No. 650247/2017
Judge: Kathryn E. Freed and consider whether how to address the Court on the issue of “fundamental fairness.”
“”Under the doctrine oflaw of the case, the parties or those in privity [with them] are ‘preclud[ed] [from] relitigating an issue decided in an ongoing action where there previously was
a full and fair opportunity to address the issue’ (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1179, 834 NYS2d 736 [3d Dept 2007]).” Matter of Goldstein v
Zabel, 146 AD3d 624, 631 (1st Dept 2017). Although counsel for defendant argues that “[t]he merits of Gorman’ s malpractice claims against [plaintiff] have never been determined, by this Court or by either the Referee or Justice Drager in the [m]atrimonial action” (Doc. 138 at 1), this representation is clearly false, since this Court held in its 7 /29/19 order that Justice Drager “resolved the issue of plaintiff’s alleged legal malpractice in plaintiff’s favor and determined the amount ofreasonable attorneys’ fees owed to defendant.” Docs. 101-103 at 11. Defendant did not move to reargue the 7 /29/19 order and has not perfected her appeal therefrom. Thus, the law of the case doctrine applies and precludes defendant from relitigating the issue of plaintiff’s alleged malpractice herein. Additionally, as plaintiff asserts, defendant’s proposed counterclaim sounding in breach of contract is duplicative of the legal malpractice claim and must be dismissed as well. See lphas v Smith, 147 AD3d 557 (!81 Dept 2017) citing Mamoon v Dot Net Inc., 135 AD3d 656, 658 (!81 Dept 2016).
Since the proposed claims in defendant’s third amended complaint are insufficient as a matter of law (Cross beat NY v Liirn, 169 AD3d 604 [1st Dept 2019]), the motion to amend the
answer is denied. Further, although not raised by plaintiff, defendant failed to comply with the requirement of CPLR 3025(b) that “the proposed amended … pleading clearly show the changes or additions to be made to the pleading.” Thus, this Court denies defendant’s motion on this ground as well.
This Court would be remiss if it did not address certain representations made by defense counsel in support of Gorman’ s motion. Specifically, defendant’s attorney states that the motion is being filed “to right the wrongs that have been committed against [ d]efendant and to reinstitute a semblance of fundamental fairness to these proceedings.” Doc. 111 at par. 2. To the extent that counsel appears to be impugning the integrity of this Court, he should consider himself on notice that such conduct will not be tolerated in the future.”