The confluence of First Amendment rights, the overarching current need for celebrity and self-promotion appear to have collided in a case where plaintiff retained attorneys to represent him, then resolved the case, and decided to speak to the Wall Street Journal in violation of a non-disparagement provision of the underlying contract.  Result: bad for the client.

Barr v Liddle & Robinson, LLP  2016 NY Slip Op 00744  Decided on February 4, 2016
Appellate Division, First Department tells us that such conduce can be actionable.  “Plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to the Wall Street Journal, in violation of the non-disparagement provision of the contract. These allegations state a cause of action for legal malpractice (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015]). The documentary evidence submitted by defendants fails to establish a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 [1994]). As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff’s claim that, but for defendants’ alleged negligent conduct, he would not have lost his contractual benefit. Moreover, it does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.”

Skarla v NPSFT LLC   2016 NY Slip Op 30152(U)  January 27, 2016  Supreme Court, Queens   County  Docket Number: 90/14  Judge: Allan B. Weiss  takes a long time to explain, but its all about real estate, and the desire to take over some juicy properties.  Did the attorney wrongfully help out?   That’s still to be decided, but while the legal malpractice case is gone, breach of fiduciary duty and other claims remain.

“Plaintiff commenced this action on January 6, 2014, asserting various claims, including causes of action against defendants Golfinopoulos for breach of fiduciary duty, fraud in the inducement, constructive fraud, fraudulent concealment, unjust enrichment, and constructive trust. Plaintiff sought to set aside the judicial sale of the real properties known as 329 150 Street, Whitestone, New York (Block 4507, Lot 8) (the Whitestone property) th (a residential property) and 23-33 31 Street, Long Island City, New York (Block 835, Lot st 25) (the Long Island City property) (a commercial mixed-use property) (together “the mortgaged premises”) held on May 3, 2013 pursuant to the judgment of foreclosure and sale entered in the action entitled Eldridge Properties, Inc. v Skarla, (Supreme Court, Queens County, Index No. 10936/2007) (the foreclosure action), void the referee’s deed to Eldridge Properties, Inc. (Eldridge), and the deeds from Eldridge to NPSFT LLC (NPSFT) and NPSFT 1 LLC (NPSFT1) (the NPSFT entities), impose a constructive trust on the Whitestone and Long Island City properties, pierce the veils of the corporate defendants so as to recover damages individually from their officers, directors and employees, and for injunctive relief. Plaintiff alleged that due to the purported wrongful acts of defendants, she was unlawfully deprived of the Whitestone and Long Island City properties, and equity therein, through foreclosure and sale in the foreclosure action.”

“Thereafter, by order dated July 28, 2014, the action entitled Skarla v Golfinopoulos (Supreme Court, Index No. 7649/2014) was consolidated with the instant action. In that second action (Index No. 7694/2014), plaintiff Helen Skarla named Kostas Golfinopoulos, Esq. and Steven W. Stutman, Esq. as party defendants and asserted causes of action against defendant Golfinopoulos for legal malpractice and “attorney misconduct and deceit,” and sought compensatory, consequential, punitive and treble damages. By order dated December 8, 2014, the complaint insofar as asserted against defendant Steven Stutman, Esq. was dismissed and the remainder of the action was severed. Meanwhile, by order dated October 17, 2014 in the foreclosure action, the judicial sale of the Whitestone and Long Island City properties was vacated, and the referee’s deed to Eldridge, and the subsequent deeds dated June 5, 2013 from Eldridge were stricken from the records of the City Register. By virtue of the vacatur of the foreclosure sale and setting aside of the deeds, record title of the mortgaged premises was returned to plaintiff.”

“Defendants Golfinopoulos assert that because the foreclosure sale of the properties and the deeds have been set aside, plaintiff has suffered no cognizable injury to support the remainder of the causes of action (i.e., those portions not barred by the applicable statutes of limitations) based upon breach of fiduciary duty and fraud insofar as asserted against them. In an action for breach of fiduciary duty or fraud, injury is a required element of the cause of action (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407 [1958]; Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]). Plaintiff alleges that during the period of the engagement of defendants Golfinopoulos, Golfinopoulos schemed with Steven Louros, Esq. to defraud her and enable defendants Eldridge and the NPSFT entities, companies with whom Golfinopoulos was purportedly associated, to acquire the mortgage loan and obtain the properties at a severely discounted value at foreclosure, and divest her of all ownership interest. Plaintiff also alleges that defendants Golfinopoulos breached their fiduciary duties to her by engaging in selfdealing and acting for the benefit of defendants Eldridge and the NPSFT entities rather than for her benefit. According to plaintiff, defendants Golfinopoulos conspired with Louros to acquire the note and mortgage on behalf of defendant Eldridge, and then received disbursed moneys from defendant Eldridge after the transfer of the parcels to the NPSFT entities. She alleges she suffered injuries including becoming homeless as a result of the reliance on the alleged advice of defendants Golfinopoulos to rent out her home in an effort to generate income, incurring legal fees to defendants Golfinopoulos relative to their representation of her in connection with the foreclosure action, incurring of expenses and legal fees related to the efforts to set aside the foreclosure sale and subsequent deeds, and incurring, during the period of her divestment of title, water damage to and building violations on the Whitestone property. Plaintiff hence has sufficiently alleged the element of injury to state causes of action based upon breach of fiduciary duty and fraud insofar as asserted against defendants Golfinopoulos.”

Kagan Lubic Lepper Findelstein & Gold LLP v 325 Fifth Ave. Condominium  2015 NY Slip Op 31470(U) August 6, 2015   Supreme Court, New York County  Docket Number: 151878/15  Judge: Cynthia S. Kern is an example which will likely be cited in this years Legal Malpractice continuing legal education seminars as a reason not to sue clients over fees.  Fee suits invite legal malpractice counterclaims.  This one survived motions to dismiss.

“Specifically, defendants’ answer alleges as follows. Defendants hired Kagan Lubic in October 2012 to represent them as general counsel and in an action against the sponsor of 325 Fifth and certain subcontractors arising from the defective design, constr~ction, sale, marketing ·! ‘ and management of the condominium building located at 325 Fifth Avenue, New York, New York (the “building”), which was allegedly plagued with defects from th~ outset. Defendants allege that Kagan Lubic failed to take even the most basic steps to secure remedies against those responsible for the defective design and construction of the Building and that for nearly two  years, Kagan Lubic “churned the file” and generated enormous legal bills.through prolonged  negotiations and other pre-litigation tactics that were time consuming, costly and entirely ineffective, including, inter alia, (i) retaining duplicative, superfluous experts which caused defendants to incur thousands of dollars in additional fees; (ii) engaging in futile settlement discussions for nearly eighteen months; (iii) generating enormous legal fees by spending countless hours addressing inconsequential maintenance issues in the building which, in many instances, cost less to remediate than the time spent addressing them; (iv):frustrating any progress  toward reaching a settlement with the sponsor with respect to the maintenance issues by delaying nearly four months before responding to the sponsor’s offer to remediate certain conditions; (v) routinely raising additional maintenance issues which resulted in further delay and costs; and (vi) allowing nearly two years to lapse without filing a complaint in the action. Defendants further allege that “[b]ut for Kagan Lubic’s dilatory tactics, the defects in the Building would have been remediated by now, and the impaired value of the Condominium units in the Building resulting from the design and construction defects and ongoing litigation would have been restored.”

“In the instant action, defendants’ answer sufficiently states a claim for legal malpractice. The first counterclaim alleges that plaintiff committed legal malpractice.by failing to exercise the skill and ability reasonably to be expected from a duly licensed attorney and/or law firm engaged in the practice of law within the State of New York by, among other things, engaging in self serving dilatory tactics that were ineffective and designed to impede settlement discussions and timely resolution of the dispute in order to generate enormous legal fees and that as a result of said breach, defendants have been damaged. Specifically, defendants’ answer alleges that plaintiff negligently delayed the resolution of their claims against the sponsor and subcontractors only to increase their legal fees and that as a result, defendants have sustained damages, including, but not limited to, enormous legal fees and increased costs to investigate and address the defective conditions throughout the building, which include expert fees and rental fees for safety bridges and construction equipment. Additionally, defendants allege that as a direct result of plaintiffs willful delay of the underlying claims, the building’s defects have yet to be remediated and that the building’s value and defendants’ access to credit financing has been impaired. It is well-settled that allegations that an attorney unreasonably delayed the resolution of his client’s claims are grounds for malpractice sufficient to defeat a motion to dismiss. See Lappin v. Greenberg, 34 A.D.3d 277, 280 (1st Dept 2006)(“the complaint sufficiently asserts that defendants inordinate delay … resulted in a loss of principal attributable to defendants’ lack of professional diligence”); see also VDR Realty Corp. v. Mintz, 167 A.D.2d 986, 986-87 (4th Dept 1990)(“[factual allegations of the complaint to the effect that defendant attorney unreasonably delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics, thereby increasing the attorney’s fee and causing other consequential damages, state a cause of action for legal malpractice.”) ”

“Here, defendants’ answer sufficiently states a claim for a violation of Judiciary Law§ 487(2). The second counterclaim alleges that plaintiff, instead of diligently and vigorously pursuing defendants’ legal claims against the sponsor and the subcontractors, engaged in selfserving dilatory tactics that were designed to impede settlement discussions and the timely resolution of the dispute “in order to generate enormous legal fees with a ;view to its own gain.” Specifically, defendants allege that they retained plaintiff in October 2012, after an action had been commenced by Summons with Notice in July 2012, and that from the outset of the representation, plaintiff”failed to take even the most basic steps to resolve [defendants’] claims” and that “[i]nstead, for nearly two years, [plaintiff] simply churned the file and generated enormous legal bills through prolonged negotiations and other pre-litigation tactics that were time consuming, costly, and entirely ineffective,” such as requiring additional unnecessary expert investigations, delaying filing a complaint for almost two years, stalling all opportunities to settle the underlying matter and continuing to attempt to settle the matter despite the knowledge that settlement attempts were futile. As these allegations are sufficient to state a claim for a violation of Judiciary Law§ 487, plaintiffs motion to dismiss the second counterclaim is denied. ”

Mamoon v Dot Net Inc.  2016 NY Slip Op 00600  Decided on January 28, 2016  Appellate Division, First Department  is a casually written yet decisive decision from the Appellate Division, which basically keeps the legal malpractice cause of action and jettisons everything else as inappropriate (civil conspiracy) or  duplicitive.  Note the short sentence about the need for verification and “red herrings.”

“Mr. Moss submitted an affirmation, denying that the Moss defendants ever said they [*2]would act as plaintiff’s attorney. However, an affidavit — let alone an affirmation ^[FN1] — is not documentary evidence (see e.g. Flowers v 73rd Townhouse LLC, 99 AD3d 431 [1st Dept 2012]).

The fact that the Moss defendants represented Mridha does not preclude the possibility that they also represented plaintiff (see Talansky v Schulman, 2 AD3d 355, 359 [1st Dept 2003]; see also Leon,84 NY2d at 86-87, 90).

The October 2011 letter that plaintiff sent the Moss defendants did not utterly refute her “factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). First, the fact that there was a meeting in April 2011 does not preclude the possibility that there was another meeting in May 2011. Second, plaintiff may simply have misremembered the date; she said in her affidavit, “on or about May 1, 2011″(emphasis added). Her confusion is understandable because she executed documents on April 11, 2011 which became effective on May 1, 2011. Moreover, she stated that her understanding of English is limited.

“In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]). If one considers the allegations in the claims for breach of fiduciary duty and negligence (as opposed to just the conclusory allegations in the malpractice claim), the complaint satisfies the requirements of Leder. Contrary to the Moss defendants’ claim, the documentary evidence does not show that plaintiff was paid in full for her Dot Net shares and therefore sustained no damages.

Unless a plaintiff alleges that an attorney defendant “breached a promise to achieve a specific result” (Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 39 [1st Dept 1998]), a claim for breach of contract is “insufficient” (id.) and duplicative of the malpractice claim (id. at 38-39). Plaintiff does not allege that the Moss defendants breached a promise to achieve a specific result. Hence, her contract claim should have been dismissed as against those defendants.

Plaintiff’s claims for breach of fiduciary duty and fraud are also duplicative of her malpractice claim (see e.g. Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [1st Dept 2004]; Sage Realty, 251 AD2d at 39).

“[C]ivil conspiracy is not recognized as an independent tort in this State” (Shared Communications Servs. of ESR, Inc. v Goldman Sachs & Co., 23 AD3d 162, 163 [1st Dept 2005]). Therefore, that claim should have been dismissed.

It is true that “in considering a motion to dismiss brought pursuant to CPLR 3211(a)(7), the court must presume the facts pleaded to be true and must accord them every favorable inference” (Leder,31 AD3d at 267). However, “factual allegations … that consist of bare legal conclusions, or that are inherently incredible …, are not entitled to such consideration (id.). Plaintiff makes only conclusory, incredible allegations that the Moss defendants converted her money and were unjustly enriched. Rather, the factual allegations of the complaint and the documentary evidence show that Mridha owed plaintiff $75,000 for her Dot Net shares and was unjustly enriched because he did not pay her for them.”

Klein v Rieff  2016 NY Slip Op 00482  Decided on January 27, 2016  Appellate Division, Second Department is a fascinating story, and could well serve as a bar exam all by itself.  It deals with the owners of nursing homes and the fallout from their breakup.  The gist of the story is the loser in the breakup suddenly says that she did not sign the operating agreements, and that the signature is a forgery.  Then, after trips to the Appellate Division, one of the attorneys suddenly admits that his affirmation was a “misstatements.”  “Defendant Rieff reversed his original position that Persuad did not sign the operating agreement” and so he wrote to Justice Schack with a copy to the AD that he wanted to “correct certain misstatements contained in an affirmation which [he] signed on April 20, 2009…”

So when all of the attorneys used this affirmation, was it a violation of Judiciary Law §487 and legal malpractice?  No, only Rieff remains in the case.

“ORDERED that the order dated December 5, 2013, is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendant Samuel E. Rieff which were for summary judgment dismissing the causes of action alleging legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487 insofar as asserted against him, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from;”

“The Supreme Court properly granted those branches of the separate motions by Levy, the Naparty defendants, the Hankin defendants, and Preziosi which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging a violation of Judiciary Law § 487 insofar as asserted against each of them, as the plaintiff failed to allege sufficient facts to establish that these defendants intended to deceive the court (see Shaffer v Gilberg, 125 AD3d 632, 636;Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491; Curry v Dollard, 52 AD3d 642, 644; Michalic v Klat, 128 AD2d 505, 506).”

“However, the Supreme Court erred in granting those branches of Rieff’s motion which were for summary judgment dismissing the causes of action alleging legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487 insofar as asserted against him. Rieff contends that he is entitled to summary judgment because the plaintiff did not suffer any [*3]damages as the result of any alleged fraud that he committed by making knowing, material misstatements for submission to the court. Contrary to Rieff’s contention, he failed to establish, prima facie, that the plaintiff was unable to demonstrate damages proximately caused by his alleged conduct (see Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1153).”

The Supreme Court Decision  is itself a real mess.

Legal malpractice litigation is unique, and has a set of principles and doctrines that are applicable only when suing an attorney.  Janker v Silver, Forrester & Lesser, P.C.  2016 NY Slip Op 00481  Decided on January 27, 2016  Appellate Division, Second Department is a primer for review.

“The plaintiff’s former husband commenced an action for a divorce and ancillary relief against her, and the plaintiff retained the appellants to represent her in that action. Prior to trial, the plaintiff and her former husband entered into a stipulation of settlement on the record in open court, which ended that case. Approximately two years later, the plaintiff commenced this action to recover damages for, among other things, legal malpractice. The plaintiff alleged, inter alia, that the appellants failed to ascertain the full extent of her former husband’s assets and failed to adequately explain the stipulation of settlement to her. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The Supreme Court, among other things, denied the appellants’ motion. We reverse insofar as appealed from.”

“”To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169, 176 [internal quotation marks omitted]; see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 441). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430; see Leiner v Hauser, 120 AD3d 1310, 1311; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083). “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” (Dempster v Liotti, 86 AD3d at 177). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [citations omitted]; see Dempster v Liotti, 86 AD3d at 177;Hashmi v Messiha, 65 AD3d 1193, 1195; Riback v Margulis, 43 AD3d 1023, 1023).”

“Here, to the extent that the complaint asserted that the appellants were negligent in failing to ascertain the full extent of the assets of the plaintiff’s former husband, it failed to sufficiently allege that the stipulation of settlement entered into was effectively compelled by the mistakes of counsel, since the plaintiff acknowledged that she elected to enter into the settlement agreement even though she was aware that her former husband had not fully disclosed his assets (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435-436; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813;Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083). Furthermore, the complaint failed to adequately plead specific factual allegations showing that, but for the appellants’ alleged negligence, the plaintiff would have obtained a more favorable outcome in the underlying action (see Leiner v Hauser, 120 AD3d at 1311; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083). The allegation that, but for the appellants’ alleged negligence, the plaintiff would have received a more favorable settlement offer from her former husband is conclusory and speculative (see Bua v Purcell & Ingrao, P.C., 99 AD3d at 847-848;Holschauer v Fisher, 5 AD3d 553, 554; Giambrone v Bank of N.Y., 253 AD2d 786, 787). In addition, to the extent that the complaint alleged that the plaintiff was not advised about certain aspects of the stipulation of settlement pertaining to the marital residence, the transcript of the court proceedings submitted by the appellants, wherein the attorneys set forth the terms of the stipulation, utterly refuted those factual allegations (see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 758; Pacella v Whiteman Osterman & Hanna,14 AD3d 545, 545-546). Accordingly, the Supreme Court should have granted the appellants’ motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.”

Bad cases make bad law is a mantra in the world of litigating attorneys.  An otherwise vibrant doctrine may be undermined by decisions arising from less than optimal cases.  One such example is a textbook example of why JL 487 claims are “disfavored” and applied so stringently.

Hersh v Weg  2015 NY Slip Op 30698(U)  April 27, 2015  Supreme Court, New York County  Docket Number: 104360/2011  Judge: Jeffrey K. Oing is the case any judge might point to to show that if JL 487 and Legal Malpractice claims were permitted willy-nilly, then after each litigation there would be a round of legal malpractice litigation.

In this case it’s son v. parents, and afterwards son v. lawyers.  “These claims arise out of an intra-family dispute essentially pitting plaintiff son against his mother. The Appellate Division, First Department reversed this Court’s decision and order, and dismissed plaintiff son’s complaint against defendants, Betty Weg, Arnold Weg, S&G Hotel Corp., and plaintiff’s sisters, Brenda and Nancy Hersh (Hersh v Weg, 105 AD3d 539 [1st Dept 2013]). Thereafter, the County Clerk entered judgment dismissing plaintiff’s complaint on June 24, 2013 (NYSCEF Doc. No. 166). I tried defendants’ counterclaims against plaintiff before a jury. The only principal to testify on behalf of defendants was plaintiff’s 82-year old mother, Esther Rachel Hersh. At the close of defendants’ presentation of their evidence on the counterclaims, plaintiff moved to dismiss the counterclaims. After hearing arguments, I granted the motion to dismiss: ”

“Evidently, this dismissal did not end the family dispute. Plaintiff son now seeks to add defendants’ counsel as defendants in this action so as to assert against them a Judiciary Law § 487 claim. Plaintiff also seeks the imposition of sanctions against defendant S&G for maintaining allegedly frivolous counterclaims against him. ”

“Plaintiff’s motion to amend the complaint is denied. The County Clerk entered judgment dismissing the complaint on June 24, 2013. As such, any subsequent papers and proceedings are deemed a nullity given that the action is no longer pending (Floyd v Salamon Bros., 249 AD2d 139, 140 [1st Dept 1998]). In any event, the proposed amendment seeking to interpose a section 487 claim against defendants’ counsel is palpably insufficient. Section 487 provides, in relevant part: An Attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, intent to deceive the court or any party … Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be resolved in a civil action. Notwithstanding the proposed allegations in the amended complaint, the record is clear — nowhere was there ever an assertion or charge made by plaintiff or his counsel that defendants’ counsel was deceiving or colluding to deceive this Court or plaintiff. Indeed, at no time during argument of the dismissal motion, with the proposed allegations at hand, did plaintiff’s counsel remotely suggest that there was collusion or deception present. Rather, I based my decision and order dismissing the counterclaims on the fact that defendants failed to establish prima facie their counterclaims. I did not ascribe any findings to defendants’ failure to call Betty Weg as a trial witness. Nor was there any factual basis for me to do so. In the end, whether to call her or not was a trial strategy decision to be made by defendants’ counsel. Plaintiff’s motion for sanctions defendant S&G based on its allegedly frivolous conduct in prosecuting the counterclaims is denied. The record does not support such application. Defendants’ cross-motion is denied without prejudice. “