Belair & Evans LLP v Rizzo 2025 NY Slip Op 33804(U) October 2, 2025 Supreme Court, New York County Docket Number: Index No. 654131/2015 Judge: Judy H. Kim has not worked out well for the doctor-client. Faced with an OPMC inquiry, he retained Plaintiff law firm, which worked out a settlement. Faced with the law firm’s suit for fees, the doctor-client counterclaimed for legal malpractice. Faced with the Court’s order to show cause, the doctor-client’s legal malpractice claims were dismissed. It’s been downhill from there for the client.

“In this action, plaintiff alleges that defendant failed to pay legal fees for plaintiff’s
representation of defendant in connection with defendant’s investigation and prosecution by the New York State Department of Health and its Office of Professional Medical Conduct (“OPMC”),and asserts claims for: (1) breach of contract; (2) account stated; (3) quantum meruit; and (4) unjust enrichment. Notably, this prosecution concluded with defendant signing a consent agreement with OPMC.
Defendant answered and asserted counterclaims sounding in legal malpractice, breach of
contract, unjust enrichment, fraud, and violation of Judiciary Law §487 (NYSCEF Doc No. 8,
answer). Defendant alleged that plaintiff: negligently failed to obtain certain medical records or procure an independent medical expert review to use in defending against OPMC’s prosecution; improperly spoke with defendant’s superiors without authorization (and prevailed upon them to pressure defendant to sign the consent agreement with OPMC); and failed to properly advise defendant of the consequences of signing that consent agreement (NYSCEF Doc No. 8, answer at 38-41).
In an order dated March 29, 2021, the Court (Hon. Frank P. Nervo) directed the parties to
show cause as to why the legal malpractice counterclaim should not be dismissed (NYSCEF Doc No. 352). After briefing on this issue, Justice Nervo granted the motion and dismissed all of defendant’s counterclaims…”

“On appeal, this decision was modified to reinstate those counterclaims other than the legal malpractice claim. Specifically, the Appellate Division, First Department concluded that: Dismissal of the legal malpractice counterclaim was warranted because defendant
failed to adequately plead proximate causation (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The answer did not specifically allege, and the allegations therein, read in the light most favorable to defendant, did not give rise to an inference, that but for plaintiff’s negligence, defendant would have proceeded to a hearing and prevailed in the underlying OPMC matter, or he would have achieved a more favorable settlement. Since the court’s motion to dismiss was directed only at the legal malpractice counterclaim, the court should not have dismissed the remaining counterclaims.”

“Plaintiff now moves, pursuant to CPLR 3211, to dismiss the remaining counterclaims as
duplicative of the legal malpractice claim. Plaintiff also moves, pursuant to CPLR 3212, to dismiss these counterclaims on the grounds that defendant is collaterally estopped from relitigating certain issues already resolved in the action Peter Folley Rizzo, M.D. v New York-Presbyterian Lawrence Hospital, et al, in the New York State Supreme Court, Westchester County under Index No. 57108/2020, and that these counterclaims are barred by his acceptance of the benefits of the consent agreement.
Defendant opposes the motion, arguing, as relevant here, that the remaining counterclaims are distinct from his dismissed malpractice claim and that as the First Department reinstated these counterclaims “despite having the authority and opportunity to otherwise dispose of them, thus there can be no duplication of his present causes of action with a malpractice claim that no longer exists” (NYSCEF Doc No. 442, memo of law at 6).”

“Plaintiff’s motion pursuant to CPLR 3211 is granted. On a motion to dismiss pursuant to
CPLR 3211(a)(7), the pleading is afforded a liberal construction, and the court must accept as true the facts alleged in the complaint, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]).
The motion is granted because the extant counterclaims are all, fundamentally, duplicative
of the dismissed legal malpractice claim.
The causes of action for breach of contract, breach of fiduciary duty, and negligent
misrepresentation arise from the same allegations concerning plaintiffs’ representation of
defendant in the OPMC investigation and seek the same damages for the loss of defendant’s employment, alleged reputational harm, increased malpractice premiums, and legal fees (see Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]). The cases on which defendant relies support this conclusion, as they involve breach of contract claims involving actions beyond the attorneys alleged negligent performance (see Brenner v Reiss Eisenpress, LLP, 155 AD3d 437, 438 [1st Dept 2017] [breach of contract claim reinstated where it was “based on billing issues and … not duplicative of the claims regarding the alleged mishandling of the trial”]; I.M.P. Plumbing & Heating Corp. v Munzer & Saunders, LLP, 199 AD3d 569 [1st Dept 2021] [breach of contract claim based on attorney overbilling for, inter alia, commencing unnecessary
actions that were subsequently abandoned and the improper retention of escrow funds not
duplicative of malpractice claim]).
The claims for fraud and unjust enrichment are also based on plaintiff’s alleged negligent
representation and are therefore duplicative of the legal malpractice claims (Boesky v Levine, 193 AD3d 403 [1st Dept 2021]; cf. Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015] [unjust enrichment claims sufficiently alleged that fee bore no rational relationship to work product where plaintiffs “asserted that defendants collected a $425,000 fee for “cookie cutter” legal opinion]). Finally, defendant’s Judiciary Law §487 claim is dismissed as duplicative of the malpractice claim (Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 76 [1st Dept 2018]) and as insufficiently pled (see Gopstein v Bellinson Law, LLC, 227 AD3d 465, 467 [1st Dept 2024]). Contrary to defendant’s position, the fact that plaintiff’s motion to dismiss was bifurcated, at the Court’s direction, does not preclude the dismissal of these claims on this basis.

Accordingly, plaintiff’s motion to dismiss pursuant to CPLR 3211(a)(7) is granted and the
counterclaims are dismissed. Given the fundamental deficiency of the pleadings noted above, the Court does not reach that branch of plaintiff’s motion pursuant to CPLR 3212.”