Generally speaking, legal malpractice cases are styled as legal malpractice, breach of fiduciary duty and breach of contract. in Kohler v West End 84 Units LLC 2024 NY Slip Op 34215(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 654985/2023 Judge: Lyle E. Frank, there were additionally anti-Slapp issues, defamation, fraud, abuse of process, intentional and negligent infliction of emotional distress, Judiciary Law 487, aiding and abetting false imprisonment, civil theft and conversion.

“Ms. Paulette Kohler (“Kohler”) has lived in one of the West End 84 Units LLC (“Landlord”) rent-controlled apartments for over seventy years. Ms. Kohler is currently 94 years old, widowed, and her only child died in 2020. In 2011, she met a Norwegian woman named Kjersti Inga Eggerud (“Eggerud”, collectively with Kohler “Plaintiffs”). The two women became friends, and on March 21, 2021, Ms. Kohler executed a Durable Power of Attorney, Health Care Proxy, and a Last Will & Testament that appointed Eggerud as her agent and sole beneficiary. These documents were executed by an attorney who had known Ms. Kohler for decades and they were duly witnessed and executed after it was confirmed that Ms. Kohler had the requisite mental capacity. The FBI Enters the Scene According to documents presented by Plaintiff, in June of 2021 an unknown person(s) contacted the FBI and alleged that Eggerud had engaged in elder abuse of Ms. Kohler. The FBI, according to these documents, conducted an initial assessment and attempted repeatedly to reach out to Ms. Kohler but she would not discuss the matter. In October, they called Eggerud and informed her of the report. Allegedly, on November 14 an FBI agent called Eggerud and informed her that the matter was closed and that there was no evidence against her. Then in December of 2021, the FBI closed the “Incident” and gave as a reason that the “[a]llegation could not be substantiated or is deemed mitigated at this time.” There are several issues of disputed fact as to whether the FBI ever sent an agent to Ms. Kohler’s apartment, what was said and done at such a meeting if it happened, and the extent to which the FBI communicated with various parties during this process. The Article 81 Guardianship Proceeding and Ultimate Reversal In late December 2021, Mrs. Kohler, who had just had surgery for an intestinal blockage, was transferred to the Riverside rehabilitation center for short term rehabilitation for recovery. Beginning in January of 2022, when Eggerud began attempting to enter Ms. Kohler’s apartment to prepare it for her release from Riverside, Landlord ( and others) refused Eggerud access to the apartment and declined to honor the power of attorney. The parties went back and forth on the matter, and in March of 2022 defendant Elizabeth Adinolfi (“Adinolfi”), a guardianship attorney employed by defendant Phillips Nizer LLP (“PN”, collectively with Adinolfi the “PNDefendants”), filed an Article 81 petition to appoint a Guardian over Ms. Kohler (the “Guardianship Proceeding”). The PN-Defendants were counsel for the Landlord, and Adinolfi claimed during the special proceeding that it was at least in part motivated by threats to file suit by Eggerud’ s counsel if the POA was not honored by Landlord. At this proceeding, Adinolfi also alleged, among other things, that Ms. Kohler lacked capacity at the time that she executed the POA and that Eggerud was under investigation from the FBI. In March the trial court granted the petition and appointed a temporary guardian over Mrs. Kohler, defendant Charles Barbuti (“Barbuti”). This decision was appealed, and the First Department overturned the decision in an order dated November 21, 2023 (the “Appeal Order”). That order reinstated the POA and health care proxy and vacated the temporary guardianship. Statement to NBC News An NBC News story about these events aired on October 14, 2022. Landlord prepared a statement for NBC (the “NBC Statement”) and made several claims about the alleged FBI investigation, Ms. Kohler’s financial affairs, and Eggerud’ s attempt to enter Ms. Kohler’s apartment with the POA. The Landlord claimed to have been motivated to initiate the guardianship proceedings “[i]n an effort to protect Mrs. Kohler” and that they were hesitant to give access to Ms. Kohler’s apartment to “someone under FBI investigation for financial abuse.” The resulting story, as well as a subsequent one on November 2, 2022, repeated allegations of possible elder abuse by Eggerud. The PN-Defendants claim to have been told by the FBI that they were “permitted to say: there are allegations that Ms. Kohler is a victim of financial fraud and that investigations are pending.” The Plaintiffs interpret this language as meaning that the PN-Defendants were not authorized to state that Eggerud was an FBI suspect in a financial fraud investigation, and the PN-Defendants interpret this language as meaning that they were permitted to state to the public that Eggerud was being investigated for elder abuse by the FBI. This Motion’s Procedural Posture Plaintiffs filed the present suit in November of 2023. They allege in the second amended complaint eighteen causes of action on behalf of Ms. Kohler and a further six on behalf of Eggerud. Broadly, the second amended complaint alleges a potential scheme to defraud Ms. Kohler of her rent-controlled apartment and various abuses of the guardianship process including alleged improper handling of Ms. Kohler’s finances during the temporary guardianship. The PNDefendants have brought the present motion to dismiss certain causes of action asserted against the PN-Defendants pursuant to the CPLR §§ 3016, 321 l(a)(l), (5), (7) and (g), as well as the N.Y. Civ. Rights Law§§ 70-A and 76-A. They have also moved for damages and sanctions against Eggerud and her counsel.”

“The seventeenth cause of action alleges that the PN-Defendants committed tortious interference with contract when they refused to honor the POA without cause, and by filing a guardianship proceeding in order to avoid honoring it. The PN-Defendants have moved to dismiss this claim under CPLR § 321 l(a)(7), arguing that because Eggerud did not execute an acknowledged affidavit stating that the POA was in full force, they cannot be liable for tortious interference with contract. While General Obligations Law § 5-1504 does allow for a party to request an acknowledged affidavit, there are disputed issues of fact about the Plaintiffs’ willingness and ability to offer such an affidavit and if the PN-Defendants, as Plaintiffs put it “refused to even discuss the issue.” But even more important, on this matter the PN-Defendants have failed to meet their burden on a motion to dismiss and shown that the pleadings fail to state a cause of action for tortious interference. Therefore, it would be premature to dismiss the seventeenth cause of action at this stage. VE: The PN-Defendants Have Not Met Their Burden as to the General Obligations Law Article 5, Title 15 Claim The eighteenth cause of action alleges that the PN-Defendants violated Article 5, Title 15 of the New York General Obligations Law when they refused without cause to comply with the POA. The PN-Defendants have moved to dismiss this claim under CPLR § 321 l(a)(7), arguing that Plaintiffs are required to bring this claim as a special proceeding. The relevant language of the GBL reads: “[i]fa special proceeding as authorized by section 5-1510 of this title is brought to compel the third party to honor the [POA][ … ] [s]uch special proceeding shall be the exclusive remedy for a violation of this section.” GBL § 5-1504(4)(b). Here, the Plaintiffs are not attempting to compel a party to accept the POA or to enforce one of the other actions listed in GBL § 5-1504, and therefore the limitation listed in GBL § 5-1504(4)(b) does not apply. At this stage, the PN-Defendants have not met their burden of showing that the Plaintiffs have failed to state a cause of action. VF.: The !JED Cause o{Action States a Claim but the NIED Cause o{Action Fails to Allege Required Element of the Endangerment of Personal Safety The second and third causes of action make claims for intentional and negligent infliction of emotional distress, on behalf of Ms. Kohler. The PN-Defendants move to dismiss these claims partly on the grounds that they fail to state a cause of action. The tort of intentional infliction of emotional distress has four elements, of which the first one (“extreme and outrageous conduct”) is the most difficult element to meet as a matter of law. Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). The vast majority of IIED claims before the Court of Appeals have failed because the conduct in question must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id., at 122. The behavior by the PN-Defendants alleged here, viewed in the light most favorable to the Plaintiffs and taking facts alleged to be true, could meet this standard. Therefore, it would be improper to dismiss at this time. The PN-Defendants move to dismiss the third cause of action, arguing that it fails to state a claim because it does not adequately allege either that the PN-Defendants owed Ms. Kohler a duty or that the Guardianship Proceeding threatened Ms. Kohler’s safety. The elements of a cause of action for negligent infliction of emotional distress have been limited to ( outside of special circumstances inapplicable here) that which “at least endangered the plaintiffs physical safety or cause the plaintiff to fear for his or her own physical safety.” Taggart v. Costabile, 131 A.D.3d 243,253 (2nd Dept. 2015). Here, there have not been facts alleged that would go to the PN-Defendants endangering Ms. Kohler’s physical safety, therefore third cause of action is dismissed against the PN-Defendants.”