As one starts to read the decision in Follman v Gruber 2025 NY Slip Op 32078(U) June 6, 2025 Supreme Court, Kings County Docket Number: Index No. 508865/2023 Judge: Richard Velasquez one gets the impression that the defendant attorneys have the upper hand. Read on.

“Upon the foregoing papers, in this action by plaintiff Abron N. Follman, as trustee and beneficiary of the Lazar Follman 2011 Family Trust and the Esther Follman 2011 Family Trust (plaintiff), defendant Meltzer, Lippe, Goldstein & Breitstone, LLP (Meltzer Lippe) moves, under motion sequence number one, for an order: ( 1) pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs complaint in its entirety with prejudice; (2) pursuant to 22 NYCRR 13 0-1.1, awarding it sanctions in the fonn of a money judgment against plaintiff and his counsel Balisok & Kaufman, PLLC, jointly and severally, in an amount equal in value to the time spent by its attorneys addressing the allegedly facially and abjectly frivolous claims asserted by plaintiff against it herein and addressing plaintiffs failure to withdraw those claims when demanded to avoid its incurring of those expenses (with the amount of such fees to be fixed at inquest upon notice to plaintiff and his counsel); and (3) granting such other and further relief as to the court seems just and proper in the circumstances.”

“Plaintiff moves, by order to show cause, under motion sequence number eight, for an order: (1) extending his time to oppose Meltzer Lippe’s motion for summary judgment until all court-ordered discovery has been produced; (2) precluding Meltzer Lippe from testifying or offering any evidence at trial; (3) dismissing with prejudice Meltzer Lippe’s summary judgment motion; (4) striking the answer of Meltzer Lippe, pursuant to Judiciary Law§ 753 and CPLR 3126; (5) granting sanctions for defendants’ frivolous misconduct in this matter pursuant to 22 NYCRR 130-1.1; (6) holding Meltzer Lippe in contempt of a court order to produce discovery pursuant to Judiciary Law § 753; (7) in the alternative, in the event the court declines to strike Meltzer Lippe’s answer, entering into a preliminary conference order establishing a schedule of compliance for Meltzer Lippe with the Notice for Discovery and Inspection of Documents served upon it by him in this action and setting depositions; (8) entering into a preliminary conference order establishing a schedule of compliance for Avraham Meir Follman (Avraham) and Eugene Gruber (Gruber) with the Notice for Discovery and Inspection of Documents served upon them by him in this action and setting depositions; and (9) granting such other and further relief as this court may deem just.”

“Meltzer Lippe is the law firm that prepared the Lazar 2011 Trust, the Esther 2011 Trust, the Lazar 2017 Trust, and the Esther 2017 Trust. Plaintiff alleges that Meltzer Lippe orchestrated the appointment of Gruber as a trustee of the Lazar 2011 Trust and the Esther 2011 Trust, and allegedly coordinated and benefited from the unlawful misappropriation of these trust assets.”

“Plaintiffs sixth cause of action alleges that Meltzer Lippe drafted the Lazar 2011 Trust and the Esther 2011 Trust and thereby had reason to know that Gruber and A vraham were in breach of their fiduciary duty in misappropriating, diverting, and/or converting real property, personal property, and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and Avraham commit self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, _and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. Plaintifr s seventh cause of action alleges a claim of attorney malpractice as against Meltzer Lippe. It asserts that Meltzer Lippe had an attorneyclient relationship with the Lazar 2011 Trust and the Esther 2011 Trust and with plaintiff as one of the four trustees and beneficiaries of both trusts, and that Meltzer Lippe failed to , exercise the degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and A vraham with committing the self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, and funds that belong to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that the Lazar 2011 Trust and the Esther 2011 Trust were damaged in an amount not less .than the value of the property Gruber and Avraham misappropriated, diverted, and/or converted with Meltzer Lippe’s assistance, and seeks damages in the amount of not less than $200,000,000 dollars, and punitive damages of not less than three times compensatory ‘ damages with the exact amount to be determined at trial. On April 24, 2023, Meltzer Lippe filed its answer (NYSCEF Doc No. 5). On May 1, 2023, Meltzer Lippe filed its motion, under motion sequence number one, for summary judgment and sanctions (NYSCEF Doc No. 6).”

“By a decision and order dated July 3, 2024 (NYSCEF Doc No. 179), this court ruled that Meltzer Lippe was required to produce the information requested in request numbers 1-12, 6-19, 23-25, 33, 35, 38-45, 47-49, 56-64, 66, 67-73, 80, and 106 contained in NYSCEF Doc No. 71 within 30 days from the date of this order (i.e., by August 3, 2024), as previously set forth in Justice Ruchelsman’s November 20, 2023 order. The court specifically listed each of these requests. The court further ordered that plaintiff shall file opposition to the summary judgment motion on or before August 27, 2024, and Meltzer Lippe shall file its reply on or before September 10, 2024, and, in the event Meltzer Lippe fails to provide all discovery in this order, Meltzer Lippe shall automatically be precluded from offering any evidence or testimony at trial. ,”

“With respect to plaintiffs claim for legal malpractice, Meltzer Lippe made numerous representations to plaintiff that the decanting from the 2011 Trusts into the 2017 Trusts did not contradict Lazar’s express desire to leave his children equal shares of the -. property owned by the 2011 Trusts. Due to the lack of access to the 2017 Trusts documents, plaintiff was totally reliant on assurances made by Meltzer Lippe to him and Lazar that the 2017 Trusts and the sale of the properties would allow for equal inheritances. Meltzer Lippe failed to demonstrate that plaintiff knew or should have known that Meltzer Lippe had stopped representing him in the matter more than three years before this action was commenced. Meltzer Lippe’s ongoing representation of Avraham, as trustee of the 2011 Trusts in 2022, also results from Meltzer Lippe’s refusal to disclose the specific legal matter from which the legal malpractice arose. In any event, plaintiff has adequately plead facts which, if proven, would establish the existence of an equitable estoppel (see Doe v North Shore Univ. Hosp., 28 AD3d 603, 604 [2d Dept 2006]). The decanting was expressly designed in a manner to avoid plaintiff and the other siblings (other than Avraham) from being aware that the decanting was taking place. Consequently, plaintiffs legal malpractice claim against Meltzer Lippe is not time-barred. As to plaintiffs motion, under motion sequence number eight, as set forth in the court’s July 3, 2024 decision and order, based upon Meltzer Lippe’s failure to comply with all of the discovery requests, it shall automatically be precluded from offering any evidence or testimony at trial (see Biggio v Biggio, 110 AD3d 654, 655 [2d Dept 2013], lv denied 22 NY3d 860 [2014]). “‘To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753 (A) (3), the movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending. conduct'” (Botros v Botros, 233 AD3d 1051, 1053 [2dDept2024], quoting Perrone v Perrone, 229 AD3d 816, 817 [2d Dept 2024]; see also El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). Plaintiff has proven these elements, and shown that Meltzer Lippe should be held in civil contempt. No further sanctions are warranted.”

“Accordingly, Meltzer Lippe’s motion, under motion sequence number one, for summary judgment dismissing plaintiffs complaint as against it, is denied. Plaintiffs motion, under motion sequence number eight, is granted to the extent that Meltzer Lippe is held in civil contempt and is hereby precluded from offering any evidence or testimony at trial.”