Two things stand out in the Bernie Madoff spin-off case.  The first is that everyone involved has been determined to be a wrongdoer, and the second is that the case should have taken place in the Netherlands.

In New Greenwich Litig. Trustee, LLC v Citco Fund Servs. (Europe) B.V.  2016 NY Slip Op 06796  Decided on October 18, 2016  Appellate Division, First Department  Tom, J. we see how the Netherlands gets involved.  “The forum selection clause in PWC Netherlands’s contract with the funds provides that [*7]”[u]nless the parties expressly agree otherwise in writing, all disputes between the Client and the Contractor relating to this Contract will be referred to the competent District Court of Amsterdam.” Plaintiff argues that this forum selection clause is permissive, not mandatory; is not binding on the Trustee, since the funds’ manager is the “Client” who commissioned the engagement; PWC Netherlands waived its rights under the forum selection clause by actively litigating in New York; and litigating in Amsterdam would be unreasonable.

These arguments are unavailing. First, the language in the clause requiring a written agreement in order to litigate in a forum other than Amsterdam is unequivocal and indicative of the mandatory nature of the parties’ agreement (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242, 246 [2006]). Moreover, plaintiff does not allege that the parties so agreed in writing. Second, the Trustee is bound by the clause, because it stands in the shoes of the funds. Third, PWC Netherlands did not unreasonably delay in seeking dismissal under the forum selection clauses. Finally, plaintiff cites no compelling reason why litigation in Amsterdam would be unreasonable, particularly given that related litigation is already pending there against PWC Netherlands. Therefore, the claims by plaintiff against PWC Netherlands were properly directed to be heard in Amsterdam.”

As to in pari delicto:  “In this appeal, we are asked to decide whether New York law, rather than Delaware law, applies to this corporate litigation resulting from the never ending saga of Bernard L. Madoff’s Ponzi scheme. This appeal also raises issues concerning whether plaintiff’s claims are precluded by the doctrine of in pari delicto;[FN1] whether the court correctly dismissed the claims of implied and contractual indemnification; and whether the forum selection clause in defendant PricewaterhouseCoopers Accountants, N.V.’s (PWC Netherlands) agreement with plaintiff’s predecessors in interest is mandatory.”

“The in pari delicto doctrine “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v KPMG LLP, 15 NY3d 446, 464 [2010]). ”

“Thus, since Delaware law clearly does not apply here, we apply New York law to these actions. Under New York law, we conclude that application of the in pari delicto doctrine mandates dismissal of all the causes of action save the claims for contribution, which fail on separate grounds not raised before this Court. As the Court of Appeals has explained, “[t]he doctrine of in pari delicto mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v KPMG LLP, 15 NY3d at 464). This doctrine “serves important [*4]public policy purposes,” including “denying judicial relief to an admitted wrongdoer” which “deters illegality,” and avoiding “entangling courts in disputes between wrongdoers” (id).

Significantly, under the doctrine, the acts of a corporation’s authorized agents, such as its officers, are imputed to the corporation “even if [the] particular acts were unauthorized” (id. at 465). “Agency law presumes imputation even where the agent acts less than admirably, exhibits poor business judgment, or commits fraud” (id.). Further, “the principle that a wrongdoer should not profit from his own misconduct is so strong in New York that . . . the defense applies even in difficult cases and should not be weakened by exceptions” (id. at 464 [internal quotation marks omitted]).”

 

Centre Lane Partners, LLC v Skadden, Arps, Slate, Meagher & Flom Llp  2016 NY Slip   Op 32136(U)  October 21, 2016  Supreme Court, New York County  Docket Number: 651721/16
Judge: Barry Ostrager  explains the borrowing statute in the dismissal of this legal malpractice case which took place in Oregon.

“The underlying facts are as follows. For many years, the Skadden law firm represented Delford Smith, an Oregon-based entrepreneur, and various entities controlled by him, including Evergreen International Aviation, Inc. (“Evergreen”). Mr. Smith’s philanthropic interests included various Oregon-based institutions, including The Evergreen Aviation and Space Museum and The Michael King Smith Foundation, a notfor-profit that managed the Museum.

In December 2013, Evergreen and certain subsidiaries (the “Debtors”) filed for bankruptcy in Delaware. This action was brought derivatively on behalf of the Debtors by creditors of Evergreen who claim that Skadden committed legal malpractice and breached its fiduciary duty in connection with two transactions referred to as the “Airplane Transfer” and the “Helicopters Transaction.” The Debtors claim that Skadden’s work had the effect of diverting money from Evergreen that could have been used to reduce Evergreen’s debts to plaintiffs.”

“The moving defendants assert that under New York’s borrowing statute, CPLR §202, Oregon’s statute of limitations for legal malpractice and breach of fiduciary duty applies to this case. The Oregon statute of limitations, Or. Rev. Stat. Ann. §12.110(1 ), bars such claims filed more than two years after the breach. Since the two transactions were completed in April and May of 2013, respectively, and this action was commenced by the filing of the Summons and Complaint on March 31, 2016, defendants assert that the action must be dismissed as time-barred. Plaintiffs argue in opposition that the claims are timely under both the New York and Oregon statutes of limitations. New York’s borrowing statute, CPLR §202, provides that: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. Earlier this month the Appellate Division, First Department, made clear, as the Court of Appeals previously did in Norex Petroleum Ltd. v Blavatnik, 23 NY3d (2014), that “the law of New York requires that when a nonresident sues on a cause of action accruing outside of New York, the cause of action must be timely under the limitations period of both New York and the jurisdiction where the cause of action accrued.” 2138747 Ontario, Inc. v Samsung C&T Corp., et al., 2016 WL 5888697 (1st Dep’t October 11, 2016), citing Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 585 (1999). Thus, where, as here, the claim accrued outside of New York and the plaintiffs here are indisputably non-residents, CPLR §202 provides for “borrowing” the statute of limitations of the jurisdiction where the claim arose (Oregon) if the Oregon statute of limitations is shorter than New York’s. It is undisputed that every claim in this case accrued in Oregon, that every transaction at issue was consummated in Oregon, and that the only relationship this case has to New York is that the defendant law firm is headquartered in New York and the defendant partner is based here. Consequently, Oregon’s two-year statute of limitations applies to the plaintiffs’ claims, rather than the longer three-year statute of limitations applicable in New York. In this regard, in Ontario, supra, the First Department made clear that: ”The borrowing statute is considered a statute of limitations provision and not a choice-of-law provision.” Consequently, it is irrelevant whether an Oregon court would or should apply New York substantive law to the attorney malpractice and breach of duty claims. All that is relevant is whether plaintiff’s claims are barred by the two-year Oregon statute of limitations. See Rescildo v. R.H. Macy’s, 187 A.D.2d 112 (1st Dep’t 1993), overruled on other grounds by Ins. Co. of North America v ABB Power Generation, Inc., 91 NY2d 180, 187-88 (1997). As the claim accrued at the latest on December 31, 2013, when the Delaware Bankruptcy began and Skadden’s representation ended, the March 31, 2016 commencement of this suit more than two years later was untimely. “

No, not the Federal Aviation Administration, the Federal Arbitration Act.  The NY Court of Appeals ruled this year that almost every arbitration comes under its umbrella.  Cusimano v Schnurr
2015 NY Slip Op 09232 [26 NY3d 391]  December 16, 2015  Lippman, Ch. J. Court of Appeals. Plaintiffs played a dangerous game.  Did they win or lose?

“The issues presented by this appeal are whether the Federal Arbitration Act (FAA) is applicable to disputes arising under the agreements at issue and, if so, whether plaintiffs Rita and Dominic Cusimano waived their right to arbitrate by pursuit of this litigation. We hold that the FAA does apply, but that plaintiffs waived their right to arbitrate.{**26 NY3d at 395}”

“The United States Supreme Court has interpreted the reach of the FAA extremely broadly, characterizing the act’s basic purpose as “overcom[ing] courts’ refusals to enforce agreements to arbitrate” (Allied-Bruce Terminix Cos. v Dobson, 513 US 265, 270 [1995]). In Allied-Bruce, the Supreme Court held that the term “involving commerce” was meant to be the functional equivalent of “affecting commerce,” which typically signals Congress’s intent to invoke the full extent of its powers under the Commerce Clause (see 513 US at 273-274).

In particular, the Court addressed the scope of the statutory language, “evidencing a transaction involving commerce.” The Court observed that there were conflicting interpretations of the phrase—whether it meant that the parties had contemplated substantial interstate activity at the time they had entered the agreement, or whether the transaction at issue must have turned out, in fact, to have involved interstate commerce (see 513 US at 277). The [*5]Court concluded that the “commerce in fact” interpretation was more in keeping with the statute, pointing out that the “contemplation of the parties” test appeared contrary to congressional intent, as it would invite litigation about what the parties had been thinking when they executed the agreement (see 513 US at 278). “[W]e accept the ‘commerce in fact’ interpretation, reading the Act’s language as insisting that the ‘transaction’ in fact ‘involv[e]’ interstate commerce, even if the parties did not contemplate an interstate commerce connection” (513 US at 281).

More recently, the United States Supreme Court indicated that it was “perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’—that is, ‘within the flow of interstate commerce’ ” (Citizens Bank v Alafabco, Inc., 539 US 52, 56 [2003]). The Court clarified that{**26 NY3d at 399} it is not necessary for the individual transaction to have a substantial effect on interstate commerce, so long as the type of activity at issue has the requisite substantial effect (see 539 US at 56).”

“Although this interpretation is undeniably broad, the Supreme Court has made it abundantly clear that the FAA’s{**26 NY3d at 400} reach is expansive. The idea that the intrafamilial nature of the agreements has some bearing on whether the FAA is applicable finds no support in the case law. Nor does the fact that these agreements do not themselves evidence the commercial transactions appear to be significant. The ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that is, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce—and, here, it does.”

The scene was charged with energy.  A newly off-the-bench Federal District Judge was arguing in the First Department Appellate Division.  The issue was a situation in which a client had sued the law firm for legal malpractice in US District Court and the law firm had started a declaratory judgment action in state court seeking a declaration that it had done no wrong.  It was unusual to say the least.

The Appellate Division thought it odd too.  Their decision in Wachtell, Lipton, Rosen & Katz v CVR Energy, Inc.  2016 NY Slip Op 07091  Decided on October 27, 2016  Appellate Division, First Department, muted as it may be, speaks volumes.

“Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 2, 2014, which, to the extent appealed from, denied defendants’ motion to dismiss the claim for a declaratory judgment on the ground of another action pending, unanimously reversed, on the facts, with costs, and the motion granted. Order, same court and Justice, entered February 24, 2015, which granted plaintiff’s motion to dismiss defendant CVR Energy, Inc.’s counterclaim for legal malpractice, unanimously reversed, on the law, with costs, and the motion denied.

The court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against defendant CVR Energy, Inc., since there is another action pending between the parties for the same cause of action (CPLR 3211[a][4]; see Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 95 [1st Dept 2013]). CVR’s choice of a federal forum for its earlier filed legal malpractice action against plaintiff (Wachtell) (see 28 USC § 1332 [diversity of citizenship]) is entitled to comity. Wachtell’s “use of a declaratory judgment action to determine the viability of [its] defense, or the existence of merit, to [CVR’s] legal malpractice claim” is an “unusual” practice (White & Case, LLP v Suez, SA, 12 AD3d 267, 268 [1st Dept 2004]), strongly suggestive of forum shopping, and does not warrant a deviation from the first-to-file rule (cf. National Union Fire Ins. Co. of Pittsburgh, Pa. v Jordache Enters., 205 AD2d 341, 344 [1st Dept 1994]).”

You might call this bootstrapping; Plaintiffs called it proper discovery.  Note that the claim was said to be late on earlier motions; now plaintiff gets to add claims for very old audits in this accounting malpractice action.

 In  Conway v Marcum & Kliegman LLP 2016 NY Slip Op 31933(U) October 11, 2016 Supreme Court, New York County Docket Number: 652236/2014  Judge Anil C. Singh notes the rules for amendment of a complaint.

“Under CPLR 3025, “[m]otions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom.” MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500 (1st Dept 2010). While plaintiffs are not required to, establish the merits of proposed new allegations, the proposed amendments must not be “palpably insufficient or patently devoid of merit” Id. “A party opposing leave to amend must overcome a heavy presumption of validity in favor of peJ.’.mitting amendment.” McGhee v. Odell, 96 A.D.3d 449, 450 (1st Dept 2012) (internal quotations omitted}. Plaintiffs’ proposed amendments are not palpably insufficient or clearly devoid of merit. See Pier 59 Studios L.P. v. Chelsea Piers L.P., 40 A.D.3d 363, 366 (1st Dept 2007) (“Once a prima facie basis for the amendment has been established, ; that should end the inquiry.”) (citation omitted). The proposed amendments were ‘ supported by a sufficient showing of merit through the submission of an affirmation by counsel,· a redline of the proposed changes to the complaint, along with relevant ‘ documents including invoices produced by the Defendants related to the 2009 and 2010 audits’. In fact, Defendants do not contend, in their reply, that the proposed amendments are without merit.

Defendants contend that Plaintiffs motion should be denied because of undue delay. Defendants contend thatPlaintiffs should have brought this case in 2012, or even as early as 2011. However, this Court and the First Department have held that the original complaint was filed in a timely manner when this action was commenced in July 2014. Stokoe v. Marcum & Kliegman LLP, No. 6552236/2014, 2015 WL 1306995, at *5 (Sup. Ct. N.Y. Cty. Mar. 16, 2015), affd, 135 A.D.3d 645 (1st Dept 2016). Plaintiffs’ contend that the new information in the amended complaint relates to allegations concerning the 2009 and 2010 audits, which they assert they became aware of in February 2016. See AC i-fi-f 129-30, 151, 168, 217-18, 224-49 (new allegations concerning 2009 and 2010 Audits); Gross Reply Aff. i-fi-f 12-13; see also Gross Moving Aff., Exh. Z.”

“Consequently, Plaintiffs’ proposed amendments are not palpably insufficient nor do they impose undue prejudice or surprise. “

Aside from the fact that almost all of the parties to this transaction, as well as to the legal representation are dead, the point of this case is that courts will not allow speculation on what advice might have been given and how a specific person might have reacted to that advice, when there is no objective way of answering the question.

Gourary v Green  2016 NY Slip Op 06888  Decided on October 20, 2016  Appellate Division, First Department is the story of an elderly man’s disposition of a corporation and how it affected the next generation.

“Plaintiff, the administrator of the estate of his deceased father, Paul Gourary (Gourary), alleges that, in connection with the May 2006 sale of Gourary’s 50% share in a New York S-corporation to defendant Macomber, the son-in-law of the corporation’s other 50% shareholder, Oliver Laster (since deceased) (Laster), defendant Paul Green (since deceased) and his law firm, defendant Green & Ettinger, committed legal malpractice and fraud in connection with their representation of Gourary in the sale, enabling Macomber to purchase Gourary’s interest in the corporation at a steep discount.

The Green defendants established prima facie, through deposition testimony and two experts’ affidavits, that the sale was consistent with Gourary’s objectives, that Green did not represent Macomber before the deal was struck, and that the evidence did not support an inference that Green’s representation violated the ethics rules or was inconsistent with the standard of professional conduct (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Moreover, defendants established the absence of proximately caused damages; since “there is no way to know whether the advice not given . . . would have altered the [outcome],'” the claim of damages is speculative (id. at 436; see also Fielding v Kupferman, 104 AD3d 580 [1st Dept 2013], lv denied 21 NY3d 859 [2013]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 652 [1st Dept 2012]).

Contrary to plaintiff’s contention, the Green defendants were not required to submit an expert opinion on the issue of causation. Unlike issues implicating “the byzantine world of immigration law” (see Suppiah v Kalish, 76 AD3d 829, 833 [1st Dept 2010], appeal withdrawn 16 NY3d 796 [2011]), the issue of causation in this case rests on the “discrete factual question” of how Gourary, a lay person, would have reacted to certain information (see Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58, 63 [1st Dept 2012]).

In opposition, plaintiff failed to raise a triable issue of fact. There is no evidence that Green represented Macomber and Gourary dually in connection with the negotiations for the sale of Gourary’s share of the corporation. Before making an offer, Macomber had consulted a tax lawyer; later he retained separate counsel to provide services in connection with the transaction. Moreover, Green’s structuring of the transaction favored Gourary’s interests over those of Macomber. Plaintiff’s real estate law expert’s opinion concerning the alleged dual representation was made without the benefit of knowing what, if anything, Green and Gourary discussed with [*2]respect to the price of the sale, and assumes that there were either no such discussions or that, on Green’s side, the discussions failed to sufficiently promote Gourary’s interests. In contrast to Papaioannou v Lukas (170 AD2d 289 [1st Dept 1991]), relied upon by plaintiff, there are no questions here about the nature of advice Green provided Gourary. The nature of that advice is simply unknown.”

A New York legal malpractice case on top of a legal malpractice case on top of bad representation in a criminal case in Florida and California for a capital murder prosecution in Federal Court fairly shouts of desperation.  The fact that it was brought in New York rather than in California or Florida suggests the driving force is a grieving family member.  It all ends in dismissal.

Bloomgarden v Lanza 2016 NY Slip Op 06798 Decided on October 19, 2016  Appellate Division, Second Department is a primer on personal jurisdiction based upon the long arm statute.

” The plaintiffs commenced this action seeking damages for, inter alia, legal malpractice against the defendants, attorneys in California, who represented the plaintiffs in an action against certain Florida attorneys in Florida. The defendants moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint in this action for lack of personal jurisdiction, and the Supreme Court granted that branch of the motion. The plaintiffs appeal.

“Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211 (a) (8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court” (Whitecraft v Runyon, 123 AD3d 811, 812, citing Weitz v Weitz, 85 AD3d 1153 and Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986). Here, accepting as true the allegations set forth in the complaint and in the opposition to the motion, and according the plaintiffs the benefit of every favorable inference (see Whitecraft v Runyon, 123 AD3d at 812), we find that the plaintiffs failed to make a prima facie showing that the defendants were subject to personal jurisdiction in New York.”

“Here, the plaintiffs failed to show that the defendants actively projected themselves into New York to engage in a sustained and substantial transaction of business within New York, thereby purposefully availing themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) (see Paterno v Laser Spine Inst., 24 NY3d 370, 379). The defendants communicated from California with the plaintiffs in New York via mail, telephone, and email because the plaintiffs were New York domiciliaries, not because the defendants were actively participating in transactions in New York, and the communications with the plaintiffs in New York all concerned the services that the defendants were performing in Florida (see Liberatore v Calvino,293 AD2d 217, 220; Libra Global Tech. Serv. [UK] v Telemedia Intl., 279 AD2d 326; J.E.T. Adv. Assoc. v Lawn King, 84 AD2d 744, 745).

Nor did the plaintiffs establish that the defendants caused injury within New York that would subject them to long-arm jurisdiction pursuant to CPLR 302(a)(3). The residence of an injured party in New York is not sufficient to satisfy the clear statutory requirement of an “injury . . . within the state” (CPLR 302[a][3]; see McGowan v Smith, 52 NY2d 268, 274, 275). “The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff” (Hermann v Sharon Hosp., 135 AD2d 682, 683). Here, the alleged legal malpractice occurred in Florida.”

 

Gerschel v Christensen  2016 NY Slip Op 06794  Decided on October 18, 2016  Appellate Division, First Department brings up the inexplicable question of why plaintiffs wait so long to bring an action.  A trust dissolves, and plaintiffs don’t get their money.  They have either 3 or 6 years in which to sue.  However, nine years go by.  Why?

“The motion court providently exercised its discretion by accepting defense counsel’s excuse that he failed to make a timely motion to dismiss the amended complaint on behalf of defendants.

Except as to the tenth cause of action, defendants “set forth facts sufficient to make out a prima facie showing of a meritorious defense” (Bergen v 791 Park Ave. Corp., 162 AD2d 330, 331 [1st Dept 1990]). Plaintiffs’ claims for legal malpractice, negligence, conversion, unjust enrichment, and constructive trust accrued at the time of their injury; these claims are not subject to a discovery rule (see e.g. McCoy v Feinman, 99 NY2d 295, 301 [2002] [malpractice]; Playford v Phelps Mem. Hosp. Ctr., 254 AD2d 471, 471-472 [2d Dept 1998], lv denied 93 NY2d 806 [1999] [negligence]; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44 [1995] [conversion]; Kaufman v Cohen, 307 AD2d 113, 127 [1st Dept 2003] [unjust enrichment]; Knobel v Shaw, 90 AD3d 493, 496 [1st Dept 2011] [constructive trust]). The statute of limitations for malpractice, negligence, and conversion is three years (McCoy, 99 NY2d at 301; Playford, 254 AD2d at 471; Vigilant, 87 NY2d at 44); that for unjust enrichment and constructive trust is six years (Knobel, 90 AD3d at 495-496). Plaintiffs were injured in November 2001, when the Bella Meyer Trust and Francine Meyer de Camaret Trust were dissolved and plaintiffs failed to receive their share of the distributions therefrom. Thus, the statutes of limitation ran either in November 2004 or November 2007, depending on the cause of action. Plaintiffs did not sue until September 2010.”

“Where “an allegation of fraud is essential to a breach of fiduciary duty claim” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]), the statute of limitations is six years (id.), and “[t]he discovery accrual rule … applies” (Kaufman, 307 AD2d at 122). Two of the plaintiffs submitted affidavits saying they did not know until early September 2008 that the trusts had been distributed in 2001. On the other hand, plaintiffs’ father submitted an affidavit [*2]saying that his sons were aware that distributions had been made by or before 2003. Where, as here, “[i]ssues of fact are created in the affidavits submitted on behalf of the opposing parties” (Bishop v Galasso, 67 AD2d 753 [3d Dept 1979]), a defendant can establish a meritorious defense and is entitled to have a default judgment vacated (id.).

When a plaintiff alleges fraud or constructive fraud (cf. Colon v Banco Popular N. Am., 59 AD3d 300, 301 [1st Dept 2009]), “[a] cause of action for negligent misrepresentation accrues on the date of the alleged misrepresentation which is relied upon by the plaintiff” (Fandy Corp. v Lung-Fong Chen, 262 AD2d 352, 353 [2d Dept 1999]). The complaint does not allege that defendants made any misrepresentation on which plaintiffs relied.”

We read a lot of legal malpractice cases, and have heard a lot of legal malpractice dismissal motions, and some arguments are both common and predictable.  Counsel will argue that the case is ridiculous, or angrily state that it completely lacks merit, or that it was started only to avoid paying legal fees.  These arguments are usually untrue, yet, there are truly ridiculous cases that make their way into court.   For your consideration:  Peltier v Smith  2016 NY Slip Op 51476(U)  Decided on October 13, 2016  Supreme Court, Essex County  Muller, J.

“Briefly, plaintiff KarenMarie Adams (now known as KarenMarie Peltier) purchased commercial property on Front Street, Village of Keeseville, Essex County,[FN1] from Donald and Caroline Loreman in February 2003. She received funding for the transaction from the Village of Keeseville Revolving Loan Fund. She planned to operate a bed and breakfast, gift shop and/or tea room on the premises. Defendant Kathryn Wilson Smith entered into a partnership with plaintiff in the Fall of 2004 to do business together with her at the premises. Plaintiff fell behind on her payments to the Village and, by mid-2005, the Village had obtained summary judgment against plaintiff on a mortgage foreclosure action regarding the Front Street premises. In August 2005, plaintiff agreed to transfer the building to defendants Kathryn and Kenneth Smith (hereinafter referred to as the Smiths), generating funds to pay the past due amounts to the [*2]Village.[FN2] Plaintiff planned to remain in business at the premises with Kathryn Smith. Also in August 2005, an ongoing dispute between plaintiff and the prior owners (the Loremans) — who had remained as tenants operating a laundromat at the premises — escalated and resulted in an incident in which plaintiff and Kathryn Smith were charged with harassment. Defendant William Meconi, an attorney, appeared in Village Court in September 2005 and obtained an adjournment in contemplation of dismissal for plaintiff.

By December 2005, the relationship between plaintiff and Kathryn Smith had soured as plaintiff ostensibly continually neglected to make any financial contribution to the business. The business failed and the property ultimately ended up being transferred to the Smiths’ mortgagee. Believing that she had been deprived of property as a result of a multiple of wrongs by a host of individuals and entities, plaintiff commenced an action in Federal Court in 2007. She later commenced this action on November 15, 2010. In this action, plaintiff’s numerous contentions include that she had some items of personal property at the premises and she claims that, shortly after the business relationship broke down, the Smiths sold her personal property without her permission and kept the proceeds. She further contends that the Smiths together with Meconi (and others) engaged in, among other things, various coordinated efforts and nefarious conduct aimed at depriving her of her interest in the business and real property in the Village. She additionally asserts as to Meconi that, from mid-2009 through 2010, he represented an owner who evicted her from other premises located on Pulitzer Way in the Town of Jay, Essex County. She claims that this conduct by Meconi constituted, among other things, a conflict of interest.

The Smiths made a motion to dismiss this action pursuant to CPLR 3211, which the Court partially granted in October 2011 by dismissing all causes of action against the Smiths except for fraud and unjust enrichment.[FN3] Causes of action asserted against Meconi appear to include, among other things, malpractice, fraud, violation of civil rights, defamation, harassment and civil violation of the Racketeer Influenced and Corrupt Organizations Act (see 18 USC § 1961 et seq. [hereinafter RICO]). Disclosure has now been completed. Both the Smiths and Meconi have made motions for summary judgment and dismissal of the complaint.”

“Although it is difficult to discern the particular causes of action being alleged against Meconi, the Court initially finds that, to the extent plaintiff is alleging a civil rights violation and/or civil RICO claim, Meconi is entitled to summary judgment dismissing such causes of action for the reasons set forth in earlier decisions addressing similar assertions by plaintiff against others (see Decision & Order, Sup Ct, Essex County, Oct. 25, 2011, at 3-4; see also Adams v Smith, 2015 WL 4139686, 2015 US Dist Lexis 88873, supra; Adams v Smith, 2010 WL 3522310, 2010 US Dist Lexis 90729, supra). Further, “[w]ith regard to the alleged harassment, ‘New York does not recognize a common-law cause of action to recover damages for harassment'” (Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [2013], quoting Monreal v New York Dept. of Health, 38 AD3d 1118, 1119 [2007]). Turning to the apparent malpractice claim, the “[e]lements of a cause of action for legal malpractice include the existence of an attorney-client relationship, that ‘the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages'” (McPhillips v Bauman, 133 AD3d 998, 999-1000 [2015], lv denied 27 NY3d 901 [2016], quotingDombrowski v Bulson, 19 NY3d 347, 350 [2012]). The elements for fraud are set forth above under the discussion of the Smiths’ motion. As for plaintiff’s defamation cause of action, “plaintiff must prove that [Meconi] made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se” (Roche v Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]; see Loch Sheldrake Beach & Tennis Inc. v Akulich, 141 AD3d 809, 815 [2016]).

Meconi submitted in support of his motion, among other things, his own affidavit. He states that he was retained by plaintiff in September 2005 regarding the criminal harassment charge resulting from plaintiff’s incident with the Loremans [Meconi affd.]. He made two appearances in Village Court. On September 13, 2005, he persuaded the court to lift an order of protection thus permitting plaintiff to have access to the Front Street property where her bed and breakfast (as well as Loremans’ laundromat) was located [Meconi affd.]. On September 20, 2005, he was able to get the harassment charged against plaintiff adjourned in contemplation of dismissal [Meconi affd.]. According to Meconi, his representation of plaintiff ended on September 20, 2005 and he thereafter never again represented her [Meconi affd.].

A little less four years after Meconi had represented plaintiff in Village Court, he was retained by an individual who owned a building in the Town of Jay, Essex County, where plaintiff was a tenant and she was behind on her rent [Meconi affd.]. After serving various notices, Meconi commenced an eviction proceeding against plaintiff and was eventually successful in having her evicted [Meconi affd.]. He states that no information gleaned from representing her in 2005 was relevant in any fashion when be brought the eviction proceeding against her in 2009 [Meconi affd.]. He further categorically denies conspiring with anyone regarding the Front Street property or engaging in any activity that could be considered fraudulent regarding plaintiff [Meconi affd.]. He denies defaming plaintiff and notes that the purported statements of his that she contends were defamatory are not even identified by plaintiff [Meconi affd.].

Meconi has met his burden of by producing competent proof establishing the merits of his [*5]motion. With respect to the alleged malpractice, he has shown that any representation ended in September 2005, there was no continuous representation so as to toll the statute of limitations (see e.g. Deep v Boies, 121 AD3d 1316, 1318 [2014], lv denied 25 NY3d 903 [2015]) and this action was not commenced within three years of September 2005 (see CPLR 214 [6]). Even if there was not a statute of limitations problem, Meconi’s representation produced a favorable result for plaintiff with respect to the harassment charge. During that representation, he did not obtain information which created a conflict as to the eviction proceeding that was commenced in 2009. He denies in his sworn statement conspiring with or acting in concert with anyone regarding plaintiff’s interest in the Front Street property. He has established that his conduct was neither fraudulent toward plaintiff nor did he defame her. Further, plaintiff has failed to set forth the allegedly specific defamatory words as required by law (see CPLR 3016 [a]; Matter of La Barbera v Town of Woodstock, 29 AD3d 1054, 1057 [2006], lv dismissed 7 NY3d 844 [2006]; Dillon v City of New York, 261 AD2d 34, 38 [1999]).

In opposition to Meconi’s motion, plaintiff submitted an unsworn document as she did in opposing the Smiths’ motion. This document does not have probative value and is inadequate to raise a factual issue within the context of a motion for summary judgment. Moreover, even if the Court was to consider plaintiff’s proof as competent, it fails to set forth sufficient factual allegations to defeat Meconi’s motion. Plaintiff’s submissions are — as with the Smiths’ motion — replete with conclusory comments, speculation, expressions of hope, characterizations of what she thinks witnesses would say (without producing affidavits from those witnesses), her personal opinion of the veracity of defendants and other unsubstantiated allegations. Although plaintiff is proceeding pro se and “courts will routinely afford pro se litigants some latitude, [nonetheless] a pro se litigant ‘acquires no greater right than any other litigant’ and will be held to the same standards of proof as those who are represented by counsel” (Duffen v State of New York, 245 AD2d 653, 653-654 [1997] [internal citations omitted], quoting Roundtree v Singh, 143 AD2d 995, 996 [1988]; see HSBC Bank USA N.A. v Pacyna, 112 AD3d 1246, 1247 [2013]).[FN4] Plaintiff has failed to raise a triable issue of fact and, accordingly, Meconi’s motion must also be granted.”