People v Austin 2021 NY Slip Op 30276(U) January 29, 2021 Supreme Court, New York County Docket Number: 451533/2019
Judge: O. Peter Sherwood is the unusual government case in which a legal malpractice issue is inserted. Here one defendant cross-claims against another defendant for legal malpractice.
“In 2014. the Attorney General’s office (‘”AG”) began an investigation of the Lutheran All Faiths Cemetery (the “Cemetery”). As a result of the investigation, the AG commenced this
action seeking remedial and injunctive relief against the member of Cemetery’s Board of Directors for breach of fiduciary duty to the Cemetery (Nunberg Aff. ii 5 [Doc. No. 106]). Mordente is a director of the Cemetery and his law fim1, Mordentr Law Firm LI .C, has
been General Counsel to the Cemcte1y since 1990 (id. ir 6). Defendant Lodato joined the Cemetery’s Board in 2004 (id. ii 8). In an Amended Answer, Lodato also alleged cross-claims
against Mordente sounding in legal malpractice. contribution, and subrogation (Mordente Aff. 6 [Doc. No. 107]). He alleges that Mordente committed legal malpractice arising from his role in drafting defendant Daniel Austin, Sr.’s (“Austin, Sr.”) employment contract with the Ccmete1y, distributing assets of a Non-Qualified Deferred Compensation Fund (the “Rabbi Trust”), and
understating the Cemetery’s contribution to the Rabbi Trust (id if 19: Amended Answer 19 Doc. No. 109). Mordente responds that he has never been retained, performed work for, or represented Lodato in an individual capacity or in his capacity as a director of the Cemetery (Mordente Aff iii! 8-12). Defendant Lodato did not submit opposition to this motion.”
“Lodato’ s legal malpractice claim against Mordente must be dismissed. First, an attoney client relationship did not exist between Mordente and Lodato. The only retainer agreement on
record here is one between Mordent’s law firm and the Cemetery. That agreement makes clear that the only client taken on was the Cemetery itself (Mordente Aff., Ex. C at 1 ). Further, New York courts have held that a corporation’s attorney represents only the corporate entity, not its officers or directors (Campbell v McKeon, 75 AD3d 479, 480-481 [1st Dept 20 I OJ). Lodato, having failed to oppose Mordent’s motion, also fails to provide any evidence that an attoney client relationship existed between him and the Mordente firm. Lodato’s Amended Answer alleges that Mordente represented the Lodato family in connection with a mortgage transaction
between the family and the Cemetery (Amended Answer,, 4-7). Mordente rebuts these allegations, demonstrating that the Closing Statement and Closing Attendance Sheets for the mortgage transaction list Vincent Lodato as having his own counsel whereas the Mordente firm represented the Cemetery (Mordente Aff., Exs. G, H [Doc. Nos. 114~115]). Lodato also cannot establish a “near privity” relationship with the Mordente firm as his Answer merely pleads such a relationship exists without offering any specific examples of Lodato ‘s reliance on Mordente’s conduct or statements. Moreover, Mordente has met his burden under CPLR 321 l(a)(5) to show
that the time in which to sue has expired (see [<;/and ADC. Inc. v Baldassano ArchitecturalGroup. P. C. 49 AD3d 815, 816 f2008]). Consequently, the cross-claim for legal malpractice against Mordente must be dismissed for failure to state a claim and for failure to assert the claim within the applicable statute of limitations. “