Getty v Schiavetta 2024 NY Slip Op 50697(U) [83 Misc 3d 1212(A)] Decided on May 18, 2024 Supreme Court, Westchester County Ondrovic, J. is a claim of legal malpractice and violation of Judiciary Law 487. Portions of the case were dismissed and motions for default were denied.

“By way of background, pro se plaintiff commenced this action by filing a summons and complaint on September 24, 2023, to recover damages for alleged legal malpractice. The complaint asserts claims for legal malpractice and violation of Judicial Law § 487. Plaintiff alleges that defendants committed legal malpractice in their representation of plaintiff in prior litigations for damages stemming from mold contamination in plaintiff’s cooperative unit located in Port Chester, New York.^[FN1] The parties in the underlying litigations participated in private mediation and the litigations were settled by agreement in October 2020 (Settlement Agreement). Plaintiff alleges that he agreed to settlement terms on August 11, 2020, but defendants had “put plaintiff against a wall” and left “him with no choice but to agree to a different settlement” (i.e., the Settlement Agreement) (complaint at 4-5 [NYSCEF Doc. 1]).”

“Here, Russo defendants demonstrated that they were not properly served since Carroll was not authorized to accept service on behalf of Russo & Gould. Plaintiff failed to rebut Russo defendants’ showing with admissible evidence.^[FN4] To the extent plaintiff calls into question Carroll’s apparent authority to accept service, the Court in its discretion finds any error on Carroll’s part akin to law office failure and therefore Russo defendants’ default is excused (see CPLR 2005). Russo defendants also demonstrated potentially meritorious defenses, which plaintiff failed to substantively address beyond reasserting allegations from the complaint.

Furthermore, the relatively brief length in the delay in appearing (from purported service), Russo defendants’ efforts to secure from plaintiff an extension of time to respond, lack of prejudice to plaintiff, and the strong public policy in favor of resolving cases on the merits all inure to the benefit of Russo defendants.

Accordingly, plaintiff’s application for default judgment against Russo defendants is DENIED.”

“Here, the complaint fails to allege facts establishing proximate cause, namely, that the defendants in the prior litigations would have executed an agreement requiring them to pay more than what was agreed to in the Settlement Agreement or to additionally repair plaintiff’s cooperative unit at their own expense. Moreover, the complaint fails to allege fraud with any particularity (see CPLR 3016[b]; see Browne v Lyft, Inc., 219 AD3d 445, 447 [2d Dept 2023]; Shah v Mitra, 171 ADed 971, 976 [2d Dept 2019]). These deficiencies warrant dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(7), but the latter deficiency is also fatal to plaintiff’s opposition to relief pursuant to CPLR 3211(a)(1) premised on plaintiff’s execution of the Settlement Agreement.

The Settlement Agreement, signed by plaintiff, includes the following representation attributed to plaintiff as the releasor:

Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims (exhibit B to Oxenburg affirmation, Settlement Agreement at 3 [NYSCEF Doc. 49] [emphasis added]).

Given that the Settlement Agreement declares plaintiff “voluntarily accepted” the terms of the agreement, absent a sufficient pleading of fraud, coercion, or inducement, the Settlement Agreement utterly refutes plaintiff’s factual allegations (Miller v Brunner, 164 AD3d 1228, 1231 [2d Dept 2018] [“A signed release shifts the burden of going forward . . . to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release” [internal quotation marks, brackets, and citation omitted]).

As to plaintiff’s Judiciary Law § 487 cause of action, “[a] violation of Judiciary Law § 487 requires an intent to deceive” (Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591 [2d Dept 2023] [internal quotation marks and citation omitted]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (id. [internal quotation marks and citation omitted]).

Here, the complaint also fails to allege deceit or intent to deceive with any particularity, which necessitates dismissal of the Judiciary Law § 487 cause of action (see id.; DeMartino, 189 AD3d at 776 [dismissing Judiciary Law § 487 claims because only conclusory pleading of intent to deceive]).

Accordingly, Schiavetta defendants’ cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is GRANTED, but as the dismissal is due to deficiencies in the pleading, the dismissal will be without prejudice (see Cadet-Duval v Gursim Holding, Inc., 147 AD3d 718, 720 [2d Dept 2017]).”