Melendez v Renfroe, Driscoll & Foster, LLP  2020 NY Slip Op 32600(U) August 11, 2020 Supreme Court, New York County  Docket Number: 157344/2019 Judge: W. Franc Perry tells a familiar story.  Familiar as in family.  Legal malpractice can take place in any legal setting, whether injury,  inheritance, invention or intellectual settings.  Siblings fighting over ineritance is a frequent trope.  This case is about whether the mother and father favored the two other siblings over plaintiff.

“This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against
Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively, “Foster”) move to dismiss the complaint as against them.”

“At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat equity and controlled M. Brothers since its inception, that his father had signed a stock power transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008, and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.) Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia, cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred ownership of Adel to Plaintiff.

After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent
part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature, and that Plaintiff had fabricated a document arranging a lease between the two asset companies.

Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies, to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4. in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”).”

“Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question her about her deposition testimony regarding her and her husband’s intention to give Adel to the Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.) Plaintiff indicates that this is a party admission that should have been brought up at trial. However, the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on the testamentary intent of Adelaida and her husband.

Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing
a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on his father’s behalf, which fell far short of meeting the clear and convincing standard required to establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days before the decedent died, at a time when, by any measure, his physical and mental condition was deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was legitimate, especially considering that the Judge specifically considered the gift tax return and knew the extent of Gellerman’s alleged involvement in its preparation.

In light of the documentary evidence and after accepting as true all facts alleged in the complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. The complaint fails to state a cause of action for malpractice because it does not sufficiently allege that Defendants’ negligence was the proximate cause of Plaintiff’s damages. Because Plaintiff has failed to establish proximate cause, dismissal is required. (Leder v Spiegel, 31 AD3d at 268.)”