Where else in this fair country could a dispute over replacement of a washing machine escalate to litigation over Judiciary Law 487, treble damages, attorney fees and the business judgment rule?  Only in Manhattan and probably only in a coop.  Plaintiff had to get permission to put in the washer/dryer and then when it broke down, bristled at the co-op house rule that the replacement had to be one of three brands.  Unaccetapable!

Siller v Third Brevoort Corp. 2016 NY Slip Op 08603 Decided on December 22, 2016 Appellate Division, First Department also shows us that JL 487 has definitely hit the mainsteam, and may be seen as an additional cause of action to be used all the time.

“The gravamen of the complaint is that defendants Third Brevoort Corporation and Diane C. Nardone, the president of the coop board, breached plaintiff’s proprietary lease and a 1990 agreement under which plaintiff built a laundry room in her apartment by refusing to allow her to replace her broken washer and dryer with machines of her choice rather than any of the three brands that the coop’s house rules, as amended in 2010, allow for replacement machines.

The governing agreements flatly contradict plaintiff’s allegations of breach of contract (see Leon v Martinez, 84 NY2d 83, 88 [1994]). Plaintiff has not identified a single term or provision that gives her a contractual right in perpetuity to install any replacement laundry machine she chooses. She relies generally upon the board’s approval of her plans to construct the laundry room in 1990 and the lease provision making her solely responsible for repairing her appliances, but nothing in those agreements gives her a right to repair the appliances in a manner that conflicts with the house rules. In fact, plaintiff concedes that she is required by the agreements to seek the board’s approval before replacing her machines.

Plaintiff’s reliance upon the provision of the lease requiring that any house rules be “reasonable” is unavailing (Braun v 941 Park Ave., Inc., 32 AD3d 21, 24 [1st Dept 2006], lv denied 7 NY3d 717 [2006]). Even under a standard of reasonableness, rather than the less stringent business judgment rule, plaintiff has not established a breach, since the house rule at issue is reasonable on its face and was not unfairly targeted at plaintiff.”

“The claim that Nardone violated Judiciary Law § 487 by making false and misleading statements in an affirmation fails to state a cause of action, because Nardone is a party to this action who is represented by counsel and not acting in her capacity as an attorney (see e.g. Seldon [*2]v Spinell, 95 AD3d 779, 779 [1st Dept 2012], lv denied 20 NY3d 857 [2013]).”

Plaintiff agrees to buy a newly constructed home, so long as the builder can produce a Certificate of Occupancy.  Of course, there is no C of O at the closing, and everyone goes into a song and dance.  Escrows, title insurance promises and monies paid to the attorneys cloud the story.  Now, after a slew of litigation the case is essentially starting over, with sanctions against plaintiff.      Johnson v Law Off. of Kenneth B. Schwartz  2016 NY Slip Op 08931  Decided on December 29, 2016  Appellate Division, First Department describes a hectic litigation setting.   “In December 2006, plaintiff entered into a contract with defendant Giles whereby plaintiff agreed to buy, for $995,000, a house built by Giles. The contract provided, inter alia, that closing would occur on or about February 7, 2007, provided that Giles obtained a final certificate of [*2]occupancy from the Department of Buildings. It also stated that “title will not close without purchaser’s consent until a final certificate of occupancy has been issued.” Plaintiff retained defendant Law Office of Kenneth Schwartz to act as his attorney in the proposed purchase. The firm assigned defendant attorney Helene Stetch to the matter.”   ”

The allegations that Mr. Diaz is the sole owner of Giles and that he also used Diaz Group Design Build Corp., “another corporate alter ego,” in his dealings with plaintiff are far too conclusory to support piercing Giles’s corporate veil to reach Mr. Diaz and then impute his liability to Diaz Group Design Build Corp. (see e.g. East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 16 NY3d 775 [2011]). Plaintiff’s plea that he needs discovery is unavailing (see e.g. East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 128-129 [2d Dept 2009], affd 16 NY3d 775 [2011]).

To the extent the fourth cause of action can be read as alleging civil conspiracy, it must be dismissed as well, since conspiracy to commit a tort is not a cause of action (see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968 [1986]).

To the extent the fourth cause of action can be read as alleging fraudulent inducement, it is insufficiently pleaded; it does not allege that the Diaz defendants or Builders Mutual made any misrepresentations to induce plaintiff to sign the document that supposedly released Builders Mutual in exchange for $45,000. Plaintiff’s affidavit indicates that he dealt only with his former attorneys regarding the release.

Although the sixth cause of action purports to be against the Diaz defendants, it in fact alleges a cause of action against the attorney defendants for converting the $45,000.

The December 2006 contract between Giles and plaintiff merged into the September 2007 deed (see e.g. TIAA Global Invs., LLC v One Astoria Sq. LLC, 127 AD3d 75, 85 [1st Dept 2015]). Plaintiff alleges that Giles breached the contract because the property did not have a final certificate of occupancy (C of O) and was deficiently constructed. However, the provisions of the contract regarding those items did not survive delivery of the deed.

The fourth cause of action appears, based on the demand for damages, to relate to plaintiff’s supposed agreement to release Builders Mutual in exchange for $45,000. Since this agreement is between Builders Mutual and plaintiff, any claim that Giles breached the covenant of good faith and fair dealing implied in the release fails (see Duration Mun. Fund, 77 AD3d at 474-475).

As to Builders Mutual, accepted as true, the complaint and its exhibits indicate that plaintiff agreed to release Builders Mutual in return for $45,000. However, plaintiff does not allege that Builders Mutual failed to pay the money; instead, he alleges that the money was paid to the attorney defendants, who refused to remit it to him.

The fifth cause of action fails to state a claim against Builders Mutual (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). Although it alleges that Builders Mutual breached its “contract with Plaintiff,” Builders Mutual had no such contract. The [*4]allegations show that the fifth cause of action refers to Giles’s breach of its December 2006 contract with plaintiff. Even if, arguendo, Builders Mutual insured Giles, its contract was with Giles, not plaintiff.

As to defendant Stetch, she contends that all claims against her are time-barred. Although couched as contract claims, the first and second causes of action are essentially malpractice claims, and they are not time-barred. Plaintiff alleges that the attorney defendants should not have allowed him “to purchase the premises without a Final C of O” or to enter into the escrow agreement. Since plaintiff purchased the premises on or about September 24, 2007, and entered into the escrow agreement on that date, the first and second causes of action accrued at that time (see Glamm v Allen, 57 NY2d 87, 93 [1982]). Absent the continuous representation doctrine, the statute of limitations would have run in September 2010 (CPLR 214[6]; see also Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 539, 541-543 [2004]). Plaintiff did not sue until March 2013. However, in opposition to Stetch’s motion to dismiss, plaintiff submitted an affidavit saying that he was continually represented by Stetch up to and including February 2012. The only matter for which plaintiff retained the attorney defendants was the purchase of his home. Thus, as required for the application of the doctrine, Stetch’s continuous representation related “to the matter upon which the allegations of malpractice are predicated” (Serino v Lipper, 47 AD3d 70, 76 [1st Dept 2007] [internal quotation marks omitted], lv dismissed 10 NY3d 930 [2008]).

The gravamen of the sixth cause of action is that the attorney defendants converted the $45,000 that plaintiff was slated to receive from Builders Mutual. The three-year statute of limitations runs from the date that the conversion takes place (see Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44-45 [1995]). “[I]t is well settled that, where the original possession is lawful, a conversion does not occur until after a demand and refusal to return the property” (D’Amico v First Union Natl. Bank, 285 AD2d 166, 172 [1st Dept 2001], lv denied 99 NY2d 501 [2002]). Stetch argues that the conversion occurred before February 23, 2010, so the statute of limitations would have run on or about February 22, 2013. According to Stetch, plaintiff’s $45,000 conversion claim is time-barred because plaintiff sued on or around March 15, 2013, nearly one month after the supposed statute of limitations had run. However, there is nothing in the record to support this contention. The email from plaintiff’s current counsel indicating that the $45,000 was released to plaintiff’s former attorneys, including Stetch, before February 23, 2010 is insufficient to establish when plaintiff actually demanded the $45,000 from the attorney defendants and when the attorney defendants refused to remit the money to plaintiff. Therefore, the precise date of conversion is unclear.

Similarly, the gravamen of the third cause of action, which is couched as a fraud claim, is that the attorney defendants stole the $100,000 escrow. However, this cause of action is not subject to CPLR 3211 dismissal as time-barred, as there is no clear indication in the record when the supposed $100,000 escrow was released. If discovery establishes that the $100,000 was converted more than three years before March 15, 2013, then Stetch may move for summary judgment based on the statute of limitations.

Stetch is correct that the first and second causes of action fail to state a claim for breach of contract. However, as they can be construed as legal malpractice claims, they need not be dismissed (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

The complaint says the fourth cause of action is for breach of the duty of good faith and fair dealing, presumably in connection with the $45,000 that plaintiff was supposed to get from [*5]Builders Mutual. As Stetch is not a party to the alleged agreement to pay $45,000, she cannot be sued for breach of the implied covenant of good faith and fair dealing (see Duration Mun. Fund, 77 AD3d at 474-475).

To the extent the fourth cause of action can be construed as a claim that Stetch fraudulently induced plaintiff to release Builders Mutual, it is inadequately pleaded. However, in his affidavit, plaintiff says he accepted Builders Mutual’s supposed offer upon the advice of his attorneys. As this indicates that plaintiff might be able to allege a specific misrepresentation by Stetch, the dismissal of the fourth cause of action as against her is without prejudice.

On the fifth cause of action, plaintiff requests legal fees in addition to damages. Stetch correctly points out that plaintiff is not entitled to attorneys’ fees due to the American rule (see e.g. Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]).

The complaint must be dismissed as against Stewart Title. It is undisputed that Stewart Title did not issue title insurance when plaintiff purchased his property. The issues of fact that plaintiff tried to create in opposition to Stewart Title’s motion for summary judgment are not genuine, but feigned; they are speculative and contradicted by documentary evidence (see e.g. Cillo v Resjefal Corp., 16 AD3d 339, 340-341 [1st Dept 2005]).

Plaintiff’s plea that he needed discovery is unavailing, especially since there is no evidence in the record that he served any discovery requests (see e.g. Meath v Mishrick, 68 NY2d 992, 994 [1986]).

Moreover, Stewart Title’s motion for costs against plaintiff due to his frivolous conduct should be granted (see Borstein v Henneberry, 132 AD3d 447 [1st Dept 2015]). In his affidavit in opposition to Stewart Title’s motion, which was sworn to on January 7, 2015, plaintiff asserted a material factual statement that was false (see 22 NYCRR 130-1.1[c][3]). He said that, with the exception of various documents — none of which was the title insurance policy for the purchase of his home — “I do NOT have any other documents.” However, on or about December 23, 2014, plaintiff had produced nonparty First American Title Insurance Company’s policy for said purchase.

Moreover, plaintiff should have known that Stewart Title did not issue the title insurance policy for the purchase of his home. The contract whereby plaintiff agreed to buy a house from Giles said, “Purchaser . . . acknowledges that [nonparty] Judicial Title Insurance Agency has issued or will issue a policy of title insurance insuring title to the land upon which the subject premises are to be built” (emphasis added). The deed for plaintiff’s property was presented for recording by Judicial Title Insurance Agency as agent for First American Title; in addition, the metes and bounds description of the property is on a page headed “The Judicial Title Insurance Agency LLC — Title Number: 93163FA-B.” Both the contract and the deed are exhibits to the complaint.

Plaintiff’s conduct is also frivolous under 22 NYCRR 130-1.1(c)(1), because, even if Stewart Title had issued a title insurance policy for plaintiff’s house, it would not have been liable for the lack of a final C of O, as Stewart Title’s attorney pointed out to plaintiff’s counsel in an attempt to have him withdraw the claims against Stewart Title (see Voorheesville Rod & Gun Club v Tompkins Co., 82 NY2d 564, 571 [1993]). Voorheesville was one of the cases that Stewart Title’s attorney sent to plaintiff’s attorney. “In determining whether the conduct undertaken was frivolous, the court shall consider . . . whether or not the conduct was continued [*6]when its lack of legal or factual basis . . . was brought to the attention of counsel or the party” (22 NYCRR 130-1.1[c]; see also Borstein, 132 AD3d at 452).”

Arbor Realty Funding, LLC v Herrick, Feinstein LLP  2016 NY Slip Op 08935  Decided on December 29, 2016  Appellate Division, First Department is certainly a case about money.  Note the level of defense attorney players here…Davis Polk & Wardwell LLP, Steptoe & Johnson LLP, Blank Rome, LLP, Paul, Weiss, Rifkind, Wharton and Garrison LLP, New York.

Were these guys just playing around in discovery?  We don’t know, but it will cost someone $ 10,000 to keep this case in play.

“Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about October 14, 2014, amending order (same court and Justice), entered on or about October 6, 2014, which denied plaintiffs East 51st Street Development, LLC, 968 Kingsman, LLC, and 964 Associates, LLC’s application to reinstate their complaint and dismissed the complaint with prejudice, unanimously reversed, on the law, the facts, and in the exercise of discretion, without [*2]costs, the complaint reinstated, and plaintiffs directed to, within 30 days, respond to defendants’ discovery requests in the form requested and pay defendants a fine of $10,000 for their willful failure to comply with the trial court’s discovery.

In this legal malpractice action, consolidated with two other actions, although plaintiffs produced responsive material, it was imbedded in large amounts of otherwise irrelevant documents. Over 30,000 documents were produced. The trial court then gave plaintiffs ample time and opportunity to further produce the documents in an electronically searchable format and to organize its responses in the form that defendant requested them. Plaintiffs failed to comply with the court’s directions. Under these circumstances, the trial court properly concluded that plaintiffs’ failure to comply with its orders was willful (Merrill Lynch, Pierce, Fenner & Smith v Global Strat Inc., 94 AD3d 491 [1st Dept 2012], mod 22 NY3d 877 [2013]). Given, however, plaintiffs’ partial compliance and the strong public policy in favor of disposing of cases on the merits, we find that dismissal of the action is too severe a sanction at this time and that a less severe sanction, of a monetary fine in the amount of $10,000 plus costs is appropriate, along with a final 30-day opportunity for plaintiffs to provide the discovery in the format ordered by the trial court on February 19, 2014.”

It’s our last blog for the year, and it is a classic situation.  We leave you ’till January with this story.

Copeny v George T. Peters, PLLC  2016 NY Slip Op 32501(U)  December 16, 2016  Supreme Court, Kings County  Docket Number: 501818/14  Judge: Larry D. Martin is all about a car accident, and the selection of the absolutely wrong court, coupled with what appears to be a poor application to get into the right court.  Note how current plaintiff’s attorney deftly stayed out of the mess, and then came in to sweep up.

“This action arises from defendants’ representation of plaintiff Tarsheema M. Copeny (“plaintiff’) in an underlying personal injury action. On or about July 17, 2012, plaintiff was in an automobile accident involving a vehicle operated by plaintiff and a vehicle owned by New York Office of Children and Family Services (“OCFS”) and operated by Michael Jackson (“Jackson”), an OCFS employee.  Plaintiff then retained defendants to represent her.  On or about May 7, 2013 defendants filed a summons and complaint, on behalf of plaintiff, against OCFS and Jackson under Index No. 502376 in the Kings County Supreme Court (the “underlying personal injury action”). Subsequently, defendants learned that claims against OCFS had to be made in the Court of Claims. Thereafter, on or about, June 6, 2013, defendants filed a stipulation of discontinuance dated May 31, 2013 with the Kings County Supreme Court for the discontinuance of the underlying personal injury action. On or about August 12,2013, defendants, on behalf of plaintiff, filed a motion for permission to file a late claim against OCFS in the Court of Claims. By letter dated August 20,2013, plaintiff, among other things, terminated defendants’ services on her behalf and advised that she had retained the law firm Sinel & Associates, PLLC to represent her. By decision and order (Soto, J.) dated October 7,2013, the motion for permission to file a late claim against OCFS was denied in the Court of Claims. By letter dated February 27, 2015, Sinel & Associates, PLLC advised defendants that they would not be substituting in as counsel in the underlying personal injury action. On or about March 3, 2014, plaintiff commenced the instant action against defendants asserting causes of action sounding in legal malpractice. Defendants now move for the relief requested herein.”

“The Court notes that plaintiff’s current counsel, Sinel & Associates, PLLC, treats the instant motion as one for dismissal pursuant to CPLR 3212 rather than dismissal pursuant to CPLR 3211. Plaintiff also requests that the instant motion be converted into one for summary judgment and, upon conversion, she be granted judgment as a matter of law on her claims in the complaint. Pursuant to CPLR 3211, the Court, upon adequate notice to the parties, may treat a CPLR 3211 (a) motion to dismiss as a motion for summary judgment where the parties deliberately chart a summary judgment course (see CPLR 3211 [c]; see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; compare Kaplan v Roberts, 91 AD3d 827, 828 [2d Dept 2012]). The Court declines to grant plaintiff’s request to convert the instant motion to one for summary judgment and, upon conversion, granting judgment as a matter of law in her favor. Nevertheless, based upon a review of the record submitted by the parties and the relevant law, the Court denies defendants’ motion to dismiss. Here, plaintiff alleges in the complaint that defendants breached the duty of care by, among other things, (1) failing to file a notice of intention to file a claim with the Court of Claims within the statutory 90-day time period, (2) failing to timely move for permission to file a late notice of claim pursuant to Court of Claims Act Article II, Section 10 (6) and (3) failing to submit an affidavit from plaintiff establishing that she has a valid cause of action or to submit any medical records regarding her claims pursuant to Insurance Law 9 5102 (d) (Complaint, ¶ 27). As a result, plaintiff claims that she would have been able to “prove[]a case of liability” against OCFS and Jackson and also that her claims in the Court of Claims would not have been dismissed leaving her “no remedy at law for her personal injuries” (Complaint, ~ 28). The Court finds that these claims are sufficient to state a cause of action for legal malpractice (see CPLR 32 I I [a][7]). As such, that branch of defendants’ motion to dismiss the complaint for failure to state a cause of action is denied. Moreover, the documents submitted by defendants did not conclusively establish a defense as a matter of law. Defendants’ submissions fail to utterly refute plaintiffs allegations so as to warrant dismissal of the complaint herein (see CPLR 321 I [a][I]; see also Randazzo, 128 AD3d at 937). Plaintiff correctly points out that Jackson was never served with the summons and complaint in the underlying personal injury action. In addition, a review of the Court’s record indicates that a request for judicial intervention was never filed in the underlying personal injury action. In this regard, that branch of defendants’ motion to dismiss the complaint on the grounds of documentary evidence is denied.”

This case mentions legal malpractice, and is a variant of the classic “you did me wrong, so I’m suing” trope.  Here, an international investor, is accused of defamation of a well-regarded law firm and its principal.

Morelli v Wey  2016 NY Slip Op 32487(U)  December 16, 2016  Supreme Court, New York County
Docket Number: 153011/16  Judge: Carol R. Edmead.  “In this defamation action, plaintiffs Benedict P. Morelli,(Morelli), Arlene B. Morelli (Mrs. Morelli), and The Morelli Law Firm, PLLC f/k/a Morelli Alters Ratner, LLP (Morelli Law Firm) allege that defendants Benjamin Wey (Wey), FNL Media LLC (FNL), and NYGG Capital  LLC d/b/a New York Global Group (NYGG) have waged a campaign to defame them through the publication of numerous false and defamatory statements in their online magazine, blogs, and  social media, in order to injure their professional reputations. Plaintiffs allege that these attacks were prompted by the Morelli  Law Firm’s representation of a former NYGG employee, Hanna Bouveng (Bouveng), in a federal action asserting sexual harassment, retaliation, and defamation claims against defendants herein (see: Bouveng v NYGG Capital LLC, 175 F Supp 3d 280 [SD NY 2016]). Defendants now move, pursuant to CPLR 3211 (a) (1), (5), and (7), to dismiss the complaint in its entirety. ”

“Beginning in 2015 and continuing through the present, defendants allegedly repeatedly published over 600 separate false and defamatory statements and images about plaintiffs (id.,¶s 20, 26-72; appendix A to verified complaint). Specifically, defendants accused plaintiffs of numerous criminal or repugnant: acts, including but not limited to, extortion, bank fraud, falsifying evidence, witness intimidation, conspiracy to commit fraud, sexual harassment, and professional misconduct (id.). According to plaintiffs, defendants perpetrated these attacks in order to injure plaintiffs in their profession, business, and livelihoods, though defendants were initially motivated to compromise plaintiffs’ representation of Bouveng (id.,¶¶21, 30, 73). To maximize the damage to plaintiffs’ reputations and livelihoods, defendants or their agents performed internet search engine “optimization” to increase the exposure of their false and defamatory .articles to users of Google and other internet search engines (id, if 23). ”

“Here, contrary to defendants’ contention, as alleged by plaintiffs, defendants did not merely make “a statement that there is an investigation.” Rather, the complaint alleges that defendants published an article entitled “The FBI investigation targets BENEDICT MORELLI [and] ARLENE MORELLI” (verified complaint,¶ 39 [b]), stated that plaintiffs committed “bank fraud” and “massive bank fraud” (id.,¶¶40; 42, 43 [a]), and made statements indicating that plaintiffs are “law violators” with a “long history of committing fraud” (appendix A to verified complaint). 1 In addition, in light of plaintiffs’ allegations that defendants stated that Morelli, a partner of the law firm, was a member of the Ku Klux Klan (verified complaint, irir 4, 72 [c], [d]), plaintiffs have sufficiently stated a cause of action for defamation per se (see Sheridan v Carter, 48 AD3d 444, 446-447 [2d Dept 2008] [domestic worker’s published statements which depicted couple that formerly employer her as racists were defamatory per se]; Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 261 [1st Dept 1995] [complaint stated cause of action for slander per se where it stated that volunteers made statements that former coordinator was anti-Semitic and was biased in her treatment of Jewish,volunteers]): Moreover, plaintiffs’ allegations that defendants stated that plaintiffs.were members of the Mafia or a “gang” and were guilty of a serious crime are sufficient to state a cause of action for defamation per se (see Harris v Queens County Dist. Atty’s Office, 2012 WL 832837, *9 [ED NY 2012] [statement that attorney was security threat to the courthouse was defamatory per se]). For example, defendants allegedly stated that “[t]he court accuses the Morelli mafia of fabricating evidence that resulted in extortion of a Texas based chemical company,” “City National Bank charges the Morelli ‘gang’ members with orchestrating a multi-year money laundering scheme and massive loan frauds,” “Benedict Morelli and his fellow ‘gang members at Morelli Alters Ratner conspired with Morelli’ s wife, Arlene B. Morelli and David Ratner to swindle City National Bank; Batik: United and the Esquire Bank,” “Benedict Morelli and, the con man’s wife Arlene were sued for money laundering,  bank fraud and suspected mafia affiliation,” “[t]he gang at Morelli Alters Ratner is wantonly defrauding City National out of millions of dollars,” “shady lawyers Benedict Morelli, David Ratner, Martha McBrayer extortion ‘mob’ members were finally captured” (verified complaint,¶ 28 [b], 31 [a], 33 [c], 35 [a], 37 [b], 43[c]). Therefore, plaintiffs’ allegations are sufficient to state a cause of action for defamation per se.”

Vol.2 of all the Judiciary Law Cases of 2016:

1. Hudson v Hahn Kook Ctr. (USA), Inc.  2016 NY Slip Op 00882 [136 AD3d 459]  February 9, 2016  Appellate Division, First Department . Plaintiffs agreed to allow non-party attorney to withdraw while a motion to dismiss for discovery failures was pending.  Their claim that he committed deceit was dismissed and affirmed on appeal, no reason given.
2. Katz v Essner  2016 NY Slip Op 01268 [136 AD3d 575]  February 23, 2016  Appellate Division, First Department is another in the First Department line of cases where plaintiff is non-suited in part because of a settlement allocution in which Plaintiff says that he is satisified with the work of his attorney.  JL 487 claim dismissed and affirmed without any discussion other than it was “conclusory.”
3. Lin Shi v Alexandratos 2016 NY Slip Op 01560 [137 AD3d 451]  March 3, 2016  Appellate Division, First Department.  In a residential contract of sale downpayment case, the JL 487 claim against the escrow holder was dismissed after contemplation of the escrow terms, and a finding that the escrow agent acted correctly in accordance.

Legal malpractice litigation is all about mistakes, significant mistakes, made by attorneys.  The loss of a legal malpractice case via an unopposed motion to dismiss ranks high on the irony scale.  Thus, Goss v DiMarco  2016 NY Slip Op 08506  Decided on December 21, 2016  Appellate Division, Second Department is instructive on two levels.  First, don’t allow motions to be submitted without opposition; second, apply the proper procedure once it happens.

“In July 2009, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, Gary Salatto (hereinafter the defendant). The defendant moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the fourth and fifth causes of action asserted against him. In an order dated December 7, 2009, the Supreme Court granted the defendant’s motion, which was unopposed. The court’s decision contained a directive to “settle order,” but the defendant failed to settle the order in compliance with 22 NYCRR 202.48(a). Thereafter, the plaintiff moved pursuant to 22 NYCRR 202.48(b) to deem the defendant’s prior motion abandoned, and the defendant cross-moved for an extension of time to settle the order dated December 7, 2009. In an order dated October 10, 2014, the court denied the plaintiff’s motion and granted the defendant’s cross motion.

The plaintiff failed to submit papers to the Supreme Court in opposition to the defendant’s motion pursuant to CPLR 3211(a)(5) and (7) to dismiss the fourth and fifth causes of action. Since no appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Morgan Stanley Mtge. Loan Trust [2007-8XS] v Harding, 141 AD3d 511), the appeal from the order dated December 7, 2009, must be dismissed (see T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038; Lillian H. Assoc., LLC v Halal, 137 AD3d 873, 874; Yuan v Kaplan, 129 AD3d 714; HCA Equip. Fin., LLC v Mastrantone, 118 AD3d 850, 851).

Furthermore, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to deem the defendant’s prior motion abandoned, and in granting the defendant’s cross motion for an extension of time to settle the order dated December 7, 2009 (see Campbell v Campbell, 107 AD3d 929, 930; Matter of Loeffler v New York State Dept. of Envtl. Conservation, 37 AD3d 470, 471; Delahanty v DeGuire, 280 AD2d 638, 639).”