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. “

Judiciary Law 487 claims are difficult.  They are disfavored, as our discussions over the past three weeks has shown.  Appellate Courts appear (but do not explicitly state) to require a higher standard of proof, and have used the word “clear” in their descriptions of the standard of JL 487 proofs, bringing to mind a “clear and convincing” standard rather than a “preponderance of the evidence” standard.  In any event, proof of a JL 487 claim is even more difficult in a bankruptcy setting as Hahn v Dewey & Leboeuf Liquidation Trust  2015 NY Slip Op 31481(U)  August 3, 2015
Supreme Court, New York County  Docket Number: 650817/2014  Judge: Eileen Bransten shows.

“In addition, the proposed attorney misconduct claim is not legally cognizable. Pursuant to Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … [i]s guilty of a misdemeanor, and … forfeits to the party injured treble damages, to be recovered in a civil action.” 11 [S]ection 487 is not a codification of a common-law cause of action for fraud. Rather, section 487 is a unique statute of ancient origin in the criminal law of England. The operative language at issue – ‘guilty of any deceit’ – focuses on the attorney’s intent to deceive, not the deceit’s success.” Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 (2009). In the proposed attorney misconduct claim, plaintiffs allege that they did not discover, nor could they have discovered, the alleged fraud until they read Confidence Games in 2014. Plaintiffs contend that the information in the book leads them to believe that evidence exists regarding LeBoeuf, Sidley, and Proskauer’s commission of actual fraud with regard to the tax shelter advice each rendered to plaintiffs in the early 2000’s. Plaintiffs further maintain that the defendant law firms knowingly and fraudulently concealed the existence of a conflict of interest between their interests and plaintiffs’ interests, in breach of their respective fiduciary duties owed plaintiffs, in order to receive additional exorbitant legal fees from plaintiffs. Plaintiffs contend that these defendants rendered improper legal advice regarding the plaintiffs’ eligibility for the safe harbor protection afforded by IRC § 6707, because they knew that, by the time that their legal malpractice and fraud were discovered, the relevant statute of limitations would have passed and that, therefore, they would be safe from legal action. As discussed at length above, in Confidence Games, the authors analyze the tax shelters of the late 1990s and early 2000s and do not specifically reference the NPL Program or any tax advice rendered by LeBoeuf, Sidley, or Proskauer with respect to that tax strategy. The information in Confidence Games does not constitute new evidence. Plaintiffs’ duty to inquire further was triggered by the IRS investigation into the NPL Program, and the lawsuits filed against plaintiffs NPL Program investors. The claim is also without merit because it is not properly brought in this action. Section 487 of the Judiciary Law applies only where the alleged deceit forming the basis of the claim occurs during the course of a pending judicial proceeding. See, e.g., Meimeteas v. Carter Ledyard & Milburn LLP, 105 A.D.3d 643, 643 (1st Dep1 t 2013); Costa/as v. Amalfitano, 305 A.D.2d 202, 203-204 (1st Dep’t 2003). Here, the alleged misconduct occurred well before commencement of this litigation. Finally, the attorney misconduct claim is time-barred. An attorney misconduct claim is subject to a six-year limitations period. See Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 15 (2014); CPLR § 213(1). The last act or omission of attorney misconduct by any of the movants alleged by plaintiffs occurred in 2003, more than ten years prior to commencement of this action. “

Two items caught our notice this morning, and though unrelated, sound a similar theme.  Fraud on the Court in one and feigned issues of fact in the other compliment the idea of how the truth divining process happens in litigation. Somehow, even creakily, the process of cross-examination and discovery seem to work.

In Scheuer v. General Motors, this morning’s New York Law Journal, in an article by Mark Hamblett reports that Judge Furman basically called a halt to the case to look at whether Mr. & Mrs. Scheuer had committed  “fraud on the court and on the jury” in possibly misrepresenting their injuries and the financial consequences of those injuries by having “altered or fabricated a $ 441,431 check stub from the federal government’s retirement account” and fooling around with text messages.  Things, as one might guess, are not going well for plaintiff in this case.

Not as bad for plaintiff in Law Off. of Zachary R. Greenhill, P.C. v Liberty Ins. Underwriters, Inc.  2016 NY Slip Op 30078(U)  January 7, 2016  Supreme Court, New York County  Docket Number: 650414/2014  Judge: Charles E. Ramos, the case nevertheless hit a brick wall, where the judge found that: “At issue is whether there is a triable dispute regarding Mr. Greenhill’s status as an officer, partner, and/or manager of Dwight China. In the Underlying Action, Mr. Greenhill plainly admitted in his pleadings and sworn testimony to being President of Dwight China (Affirmation of Kevin Mattessich [“Mattessich affu], Ex. A, ~21; Mattessich aff, Ex. E, ~41). Greenhill’s statements to the contrary in the affidavits filed in this action are merely attempts to create a feigned issue of fact. Moreover, Mr. Greenhill himself produced documents in the Underlying Action that he had signed in his capacity as President of Dwight China (Mattessich aff, Ex. E, ¶41).

The judge went on to say: “Greenhill is attempting to feign an issue of fact regarding the Greenhills’ equity interest in Dwight China by contradicting prior admissions in the Underlying Action. These prior admissions, proffered through affidavit testimony, constitute findings of fact. Mr. Greenhill’s own admissions in the Underlying Action, and not his most recent affidavits, are undisputed facts for purposes of this §3212 motion (see Harty, 294 AD2d at 298; Rubin, 305 NY at 306).”

Reem Contr. v Altschul & Altschul  2016 NY Slip Op 30059(U)  January 12, 2016  Supreme Court, New York County  Docket Number: 104202/2011  Judge: Kelly O’Neill Levy  is an example of the odd situation in which a legal malpractice case is a catalog of procedural errors.  Defendants do not answer, then obtain an extension and then do not answer a second time.  Litigants die, but their estates are not substituted.  Unsigned affidavits are submitted.  Out-of-state (NJ) forms are submitted which are alien to NY practice.  Whatever…Justice Levy straightens it all out.

“Plaintiffs commenced this action for legal malpractice alleging that the Defendants inadequately and incompetently represented them in a prior ERISA action before the District Court for the Southern District of New York (the “ERISA Matter”). [* 1] On April 7, 2011 Plaintiff filed a summons and verified complaint and on April 21, 2011, personally served Defendants’ law firm. Defendants failed to file their answer within the thirty days required by CPLR 3012( c ). The Plaintiff then consented to Defendants serving a late answer, which defendants failed to do. Thereafter, on December 22, 20 I 1, Plaintiffs filed their first motion for default judgment. Defendants cross-moved to dismiss Plaintiffs’ legal malpractice claim for improper service of process. On May 30, 2012, the court (Singh, J.) denied Defendants’ motion to dismiss after finding service proper. The court further denied Plaintiffs’ first motion for default judgment finding that the allegations in the complaint taken with the verification in the petition were insufficient to make out a claim for malpractice. Defendants subsequently appealed the denial of the motion to dismiss. On May 20, 2014, the Appellate Division, First Department unanimously affirmed the trial court’s decision, finding that Defendants were properly served on April 21, 2011. On January 3~, 2015, Plaintiffs filed a second motion for default judgment. Shortly thereafter, Defendants filed their answer and cross-motion and requested discovery. Plaintiffs filed several additional motions. Each is discussed below. ”

“”To establish a prima facie case of legal malpractice, plaintiffs must establish that they would have been successful in the underlying action.” Abramovich v. Harris, 227 A.D.2d 1000, 1000 (4th Dep’t 1996). In support of their motion, Plaintiffs submit the report of Stanley A. Epstein, Esq. dated January 21, 2015, who in an unsigned letter, opined that in their representation of the plaintiffs in the ERISA action, the defendants failed to exercise the ordinary reasonable skill and knowledge required by counsel in such matters and that but for defendants’ negligence, the plaintiffs would not have been held liable. Here, the expert report submitted was not in the form of an affidavit and an affidavit of Mr. Epstein with certification of merit were submitted for the first time only in plaintiffs’ reply brief. ”

“That determination is the law of the case, see G!ytTWill Investments, N. V v. Shearson Lehman Hutton, 216 A.D.2d 78, 79 (I st Dep’t 1995), and without any additional support from plaintiffs in admissible form submitted in a timely manner, the court denies the motion for default judgment. See Courtney v. Port Authority of NY and NJ, 34 A.D.3d 716, 718 (2d Dep’t 2006)(motion court properly exercised its discretion in declining to consider an untimely expert affidavit submitted after an identical expert affirmation had already been submitted), Ho v. Brackley, 69 A.D.3d 533, 534 (I st Dep’t 20 I O)(motion court properly declined to consider sur-reply affirmation of legal expert). Defendants cross-move for dismissal of the action, asserting, among other things, that there is a conflict of interest between plaintiffs Reem Contracting and Plaintiff Szapiro and Plaintiff Reem Plumbing and Plaintiff Steven Stein and that Plaintiffs failed to substitute the Estate of Steven Stein following the death of Mr. Stein. They further move for a traverse hearing. The court finds dismissal inappropriate and denies the cross-motion in its entirety. Defendants have failed to establish a conflict of interest that would disqualify plaintiffs’ counsel, Mandelbaum Salsburg, from representing the Reem plaintiffs. See generally Abselet v. Satra Realty, 85 A.D.3d 1406, 1407 (3d Dep’t 2011). Furthermore, as set forth more fully below, defendants have not shown that plaintiffs’ delay in moving to substitute for Steven Stein prejudiced them as they had not yet answered at the time of Mr. Stein’s death. The portion of the cross-motion seeking a traverse hearing is denied. In its Order dated May 20, 2014, the First Department affirmed Justice Singh ‘s decision and order and found defendants’ denial of proper service unavailing. As that determination is binding on this court, the court denies Defendants’ request for a traverse hearing . ”

“Finally, Plaintiffs seek a protective order, pursuant to CPLR 3103(a), to prevent them from being compelled to respond to Defendants’ interrogatories and document requests filed on February 12, 2015, limiting the number of interrogatories to 25, and finding that the deposition of plaintiff Jona Szapiro should not be taken at all or relieving Mr. Szapiro from providing all documents related to plaintiffs’ claims. Pursuant to Local Rule I 0, “prior to making a discovery motion, counsel shall consult one another in a good faith effort to resolve any discovery disputes (see Uniform Rule 202.7).”2 Plaintiffs concede here that they have not submitted an affidavit describing a good faith effort { to resolve the dispute, arguing that such an affirmation is not applicable due to defendants’ untimely request for discovery. The court finds that reason unavailing. In light of plaintiffs’ failure to show that a good faith effort was made and the omission of the objectionable interrogatories and document requests as an exhibit to the motion, the court denies the motion. See Cerreta v. N..! Trans. Corp., 251 A.D.2d 190, 191 (I st Dep’t 1998). The court has considered the remainder of the arguments in the aforementioned motions and finds them to be without merit.”