Chiantella v Kroll ;2011 NY Slip Op 32140(U) ;July 19, 2011 ;Sup Ct, Nassau County; Docket Number: 019337/07; Judge: Jeffrey S. Brown is a case that seems strange on all fronts.  Son is the beneficiary of mother’s trust, yet when she dies, he seems held hostage by the attorneys of the estate.  Since the estate has a single beneficiary, the administrations seems top-heavy.  This situation inevitably leads to accusations of financial wrongdoing.  Tax refund checks go awry and accountings are demanded.  Is this legal malpractice, and might the beneficiaries attorney be liable for legal malpractice too?

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ‘ negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust’s receipt thereof and the
Trust’ s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust’ s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death
and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.
 

The plaintiffs mother died on April 14 , 2003.
 

Shortly thereafter, conflict regarding Vishnick’ s handling of the Estate developed.  Via his first cause of action, the plaintiff has alleged malpractice and breach of contract based upon the defendants ‘ failure to procure all of the benefits to which he was allegedly entitled under the Trust and Estate. Plaintiff challenges the defendants ‘ failure to enforce the Trust and procure his mortgage income distributions upon their receipt, his annual distributions of Trust income and entire first and second Trust distributions. He also challenges the defendants ‘ failure to interpose objections to Vishnick’ s Estate accounting and to procure an accounting of the Trust and to have him removed as Co-Trustee and Co-Executor. He also challenges the defendants ‘ failure to properly defend him in the holdover proceeding and counseling him to enter into the June 22, 2006 Settlement whereby he agreed to purchase property to which he was already entitled pursuant to the Trust which caused him the loss of an immediate distribution to which he was also entitled pursuant to the Trust, and counseling him to renounce a portion of mortgage income to which he was also entitled pursuant to the Trust. This plaintiff avers, was all done to generate counsel fees. The plaintiff now seeks to amend the first cause of action to include the defendants ‘ failure to procure his final distribution under the Trust at the seventh anniversary of his mother s death and to obtain a satisfaction of the mortgage which was placed on the Little Neck property pursuant to a June 22, 2004 Settlement.

As and for his second cause of action, the plaintiff seeks to recover damages for inter alia the defendants ‘ negligence in failing to properly advise him regarding his verses the Trust  and Estate s obligations for taxes; to properly defend him against Vishnick’ s allegations that he stole money from the Trust, including the temporary restraining order; and, for counseling him to enter into September 11 , 2006 Settlement and in part falsely representing his consent thereto  in his release of Vishnick. The plaintiff seeks to amend his second cause of action to include andamages the defendants ‘ failure to challenge Vishnick’ s failure to make the third distribution at
the seventh anniversary of his mother s death as required by the Trust; the defendants
withdrawal of the objections to Vishnick’ s Estate accounting with prejudice; and their failure to
seek an accounting by Vishnick of the Trust.

The proposed Second Amended Complaint does no more than identifY with greater specificity the damages allegedly incurred by the plaintiff as a result of the defendants ‘ alleged negligence , some of which have only been realized since the commencement of this action. That those claims emanate from an agreement between plaintiff and Vishnick and that the plaintiff is precluded from recovering from Vishnick hardly serves to insulate the defendant attorneys pursuant to the doctrine of res judicata. Furthermore, whether the plaintiffs inability to recover ofVishnick is owing in whole or part to his attorneys mishandling of the special proceeding does not lay to rest the question of the defendants negligence and require that leave to amend be denied.