We previously discussed Giannone v Silvestri 2026 NY Slip Op 30171(U) February 4, 2026 Supreme Court, Tioga County Docket Number: Index No. 2024-00064107
Judge: Eugene D. Faughnan and stopped after a discussion of the fraud claims against all. The attorney defendants (really third-party defendants) have special defenses to the claims that they allowed a fraudster to claim ownership of real property and sell it fraudulently to their clients.

“In addition to the lack of particularity argument, Pasto and Pasto Law Finn also argue
that the fraud claim should be dismissed because it duplicates the negligence claim. The fraud claim against Pasto alleges that she failed to protect Defendants from misrepresentations in the sale of the premises (NYSCEF Doc. No. 6 at , 67).

The alleged negligence here was in Pasto/Pasto Law failing to protect Defendants from
the impostor. Where a cause of action for fraud arises from “the same facts as the [negligence or] legal malpractice cause of action, and [does] _not allege distinct damages”; the fraud claim is properly dismissed. Biberaj v. Acocella, 120 AD3d 1285, 1287 (2nd Dept. 2014); see, Postiglione v. Castro, 119 AD3d 920 (2nd Dept. 2014); Daniels v. Turco, 84 AD3d 858 (2nd Dept. 2011). Silvestri and Lamb allege that they retained Pasto to handle the sale and to protect their rights. Since the Court has concluded that Silvestri and Lamb are entitled to discovery to identify and describe the fraud, the Court cannot yet determine if the fraud and negligence/legal malpractice cause of actions are based the same underlying facts. Therefore, the Court cannot dismiss the fraud cause of action against Pasto and Pasto Law Finn as duplicative at this
juncture.”

“Pasto/Pasto Law represented Silvestri and Lamb, the buyers in this transaction. It is
alleged that Defendants completed the purchase as advised by Pasto, and that Pasto/Pasto Law profited due to their own negligence. Thus, the basis of the claim is that Pasto’ s negligence led to Defendant’s loss and pecuniary gain to Pasto/Pasto Law, such that Pasto/Pasto Law was unjustly enriched. The Court concludes that the facts, legal arguments and relief sought are the same, and that the unjust enrichment claim against Pasto/Pasto Law duplicates the negligence claim. See, e.g. Boesky v. Levin, l 93 AD3d 403 (1 st Dept. 2021 ); O.K. Petroleum Intl., Ltd. v. Palmieri & Castiglione, LLP, 136 AD3d_ 767 (2nd Dept. 2016); Hyman v. Burgess, 125 AD3d 1213 .”

“An unjust enrichment claim is not a “catchall” and is generally not available when other
causes of action are available. Here, the Court concludes that Defendants’ unjust enrichment claims are duplicative of their claims for negligence and breach of contract. Accordingly, the unjust enrichment claim is dismissed against all parties.”

“Pasto and Pasto Law argue that Defendants have failed to allege sufficient facts to
support a claim for legal malpractice. In particular, Pasto and Pasto Law_point out that
Defendants signed the purchase contract prior to retaining Pasto and Pasto Law, so they had already been defrauded by the impostor. They further claim that Defendants have failed to allege any facts that Pasto knew, or should have known, of the fact that someone else was posing as Giannone, or that Pasto deviated from the standard of care to provide competent legal services.

Although it appears that Defendants signed the contract prior to retaining Pasto, the Court is unpersuaded th_at such a fact shields a buyers’ attorney from any and al~ duties or liability pertaining to a forged seller’s signature. In a real estate transaction, it is not uncommon for the buyer to sign the contract ·first and then retain an attorney to handle to transaction and closing. The fact that the contract was signed does not mean that the buyer’s attorney is insulated from the effects of the execution of the contract, or the terms contained therein. In fact, review of the contract is the starting point of the representation, as it contains many items crucial to the buyer’s attorney’s representation. Those could include things such as inspection deadlines, any contingencies, property description, price, earnest money deposit, closing date, items included or excluded, as well as the parties. to the contract. Although the contract may have already been signed, the buyer’s attorney needs to ensure that all the criteria are met, and that may include considering if the seller has authority to sell the property. The Court cannot identify all the responsibilities that a buyer’s attorney may have, and Defendants have not provided details about what other actions ought to have been taken, but as noted above, the fraud and concealment surrounding the impostor make facts and details scarce to the buyers. Such facts may come to light during discovery, and the Court finds that it would be premature to dismiss Defendants’ claim for negligence/legal malpractice at this point.”

“Pasto seeks to dismiss claims directed at her individually. She claims, and Defendants do not dispute, that all the actions she to~k were through her law firm. For example, the Third-Party _ Complaint notes that Defendants “utilized Rhonda Pasto, Esq. of Pasto Law Firm, P.C. as their Attorney for this process.” There are no allegations that Ms. Pasto acted in her individual capacity or in any manner other than through her law firm or professional corporation.

Despite the fact that Pasto performed services through her professional corporation, that does not mean she is not exposed to any personal liability. Where a legal malpractice claim is brought against a law firm organized as a professional corporation, a member “can be personally liable for the negligent performance of those services if [ s ]he participated in the negligent acts or supervised and controlled the members of the corporation who committed the negligent acts” Beltrone v. General Schuyler & Co., 223 AD2d 938, 939 (3rd Dept. 1996), citing We ‘re Assocs.Co. v. Cohen, Stracher & Bloom, 103 AD2d 130 (2nd Dept. 1984), aff’d65 NY2d 148 (1985); Business Corporation Law§ 1505(a); see, Ruggiero v. Miles, 125 AD3d 1216 (3rd Dept. 2015).

Therefore, the motion to dismiss Pasto individually is denied.”