Eshaghian v Dorsey & Whitney LLP 2023 NY Slip Op 33102(U) September 6, 2023
Supreme Court, New York County Docket Number: Index No. 154087/2020
Judge: Shlomo S. Hagler is the inverse of a common legal malpractice trope, siblings who act badly to each other for financial reasons which then devolves into legal malpractice claims over how the intra-sibling issues resolve. Here, the brothers worked well together for decades, only for it to unravel on the death of one of them.

“Plaintiff David and his brother Eshagh Eshaghian (Ike), now deceased, maintained a
decades long partnership relationship, engaging in the business of selling, buying, and
developing real property. The complaint alleges that ”the relationship was based upon love, family ties and mutual respect” (NYSCEF Doc. No. 1 [Complaint], , 14)

In 2001, Ike was diagnosed with cancer and began a regime of surgery, chemotherapy,
and radiation. At the time of the diagnosis, the brothers were in the midst of developing one of their buildings into a condominium (the York Avenue Project). They agreed to sell part of said project to a third party (the Buyer). David continued to work on the York Avenue Project, including negotiating with the Buyer, while undertaking significant responsibility for his brother’s care.

Early in 2003, at a family gathering in California, Ike proposed that David prepare an
agreement memorializing certain management and financial relationships in connection with the sale of the York A venue Project. David alleges that this was the first time in more than thirty years of working together that Ike wanted to memorialize an agreement in writing.”

“On May 5, 2003, Ike passed away, three weeks before the scheduled sale of the York
Avenue Project. Immediately after Ike’s death, the executors of his will, Mahrokh and Tanaz, changed the locks on the office which David and Ike had shared since 1980, and denied David access to his office. Mahrokh and Tanaz allegedly caused huge amounts of papers and documents which were in that common office to be shredded and discarded. They claimed that the Side Agreement was invalid and refused to comply with its terms. Since then, litigation has “rage[d]” in the Surrogate’s Court of Queens County regarding every aspect of the properties previously owned by David and Ike (Id., -,i 32). The original Side Agreement has never been found.”

“The first cause of action for legal malpractice is based on the trial. It alleges that
defendants failed to adequately research the law concerning the evidentiary issues pertinent to the proceeding, namely the Dead Man’s Statute and the best evidence rule, that defendants were unprepared for trial, and that they did not adequately explain to David the risks which the evidentiary rules posed to his chances of prevailing. David contends that defendants should have called a handwriting expert as a witness who could have testified that Ike’s signature on David’s photocopy was a copy of Ike’s real signature.

The trial transcript (NYSCEF Doc. No. 54) shows that counsel for Ike’s estate objected to
any question posed by Singer to David remotely touching on the Side Agreement or David’s business relations with Ike and that the Surrogate sustained each objection. The complaint alleges that other evidence could have been introduced that might have shown the validity of the Side Agreement.

The complaint alleges further that at the trial, Singer failed to call any disinterested
witnesses (witnesses whose testimony did not run afoul of the Dead Man’s Statute) to testify about the circumstances attendant upon the making of the Side Agreement, failed to properly examine David, the one witness called by his side, and failed to offer any documents into evidence. The complaint also alleges that defendant made no attempt to offer the Side Agreement into evidence, “even though that document was the very gravamen of the proceeding” (NYSCEF Doc. No. l [Complaint], ,i 102)”

“Accepting the complaint as true and according plaintiff the benefit of every possible
favorable inference, the subject complaint sufficiently alleges a cause of action to recover damages for legal malpractice (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo,l 13 AD3d 587, 589 [2d Dept 2014]). The complaint alleges that Singer and his firm breached their duty towards their client David by failing to exercise the ordinary reasonable skill and knowledge commonly possessed by attorneys, causing plaintiff to lose his case and/or to incur damages (see McCoy v Feinman, 99 NY2d 295, 301-302 [2002]). The September 15, 2004 Letter
Singer submits a September 15, 2004 letter with an attached memorandum that he claims he wrote and sent to David (NYSCEF Doc. No. 26). The 23-page memorandum is a discussion of the law regarding David’s position that the Side Agreement is valid. The memorandum presents the obstacles presented by the Dead Man’s Statute and the best evidence rule, and the chances of overcoming those obstacles. The memorandum evaluates whether the copy of the Side Agreement will be admitted into evidence.
There is no evidence that David received such letter and memorandum. In his opposition affidavit, David states that he has no recollection of receiving it, and Singer’s claim that the letter was mailed does not give rise to the presumption of receipt, as he does not present evidence of defendant firm’s office practices pertinent to mailing (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 793 [2d Dept 2015]; Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 162 [1 st Dept 2005]).

Even if the presumption of receipt were to be established, the letter and memorandum
would not show that the causes of action for legal malpractice should be dismissed. Singer contends that he adequately informed David of the evidentiary obstacles in his case. However, under CPLR § 3211 (a) (1) “dismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff’s factual allegations” (Amsterdam Hospitality Group, LLC v MarshallAlan Assoc., Inc., 120 AD3d 431, 433 [1 st Sept 2014] [internal quotation marks and citation omitted]). The letter does not conclusively establish a defense to this action. While the letter may show that plaintiff was put on notice of the difficulties of his case, plaintiff’s allegations regarding the trial, raise factual issues regarding defendants’ alleged failure to present a sufficient case at the subject trial. “At this pre-discovery stage of the present litigation, th[is] submissio[n] do[es] not meet the CPLR 3211 (a) (1) requirement of conclusively establishing [the] defense as a matter of law” (IMO Indus. v Anderson Kill & Glick, 267 AD2d 10, 11 [1 st
Dept 1999]).”