We saw Margin Call.       Dexia SA/NV v Morgan Stanley  013 NY Slip Op 51696(U); Decided on October 16, 2013; Supreme Court, New York County; Bransten, J. is the litigation that might have followed the events in Margin Call.

Admittedly there is no legal malpractice claim in Dexia.  We wonder what will happen now that the Court has determined that the assignment of certificates in this mega multi-million dollar transaction laced the right to sue for fraud. 

"n this action for common-law fraud, aiding and abetting fraud, and fraudulent inducement, defendants Morgan Stanley ("MS"), Morgan Stanley & Co., Inc. ("MS & Co."), Morgan Stanley ABS Capital I Inc. ("MSAC"), Morgan Stanley Capital I Inc. ("MSC"), Morgan Stanley Mortgage Capital Inc. ("MSMC"), and Morgan Stanley Mortgage Capital Holdings LLC bring the instant motion to dismiss the amended complaint, pursuant to CPLR 3211. Defendants contend that plaintiffs lack standing to bring fraud claims and that plaintiffs have not pled the requisite elements to state a cause of action sounding in fraud. Plaintiffs FSA Asset Management LLC ("FSAM"), Dexia SA/NV, Dexia Holdings, Inc. ("DHI"), and Dexia Crédit Local SA ("DCL") oppose the motion.

[*2]I.Background

This action concerns 29 residential mortgage-backed securities ("RMBS"), which FSAM purchased from MS & Co in 2006 and 2007, for a total of $626 million. On June 30, 2009, FSAM assigned the securities to Dexia SA/NV, DHI, and DCL for face value, via a put option transaction. By the time this instant action was filed, all 29 RMBS at issue had been downgraded to "junk" status.

Investors in RMBS receive payments from the cash flow generated by thousands of mortgages, which have been deposited into designated pools. The actual securities held by the investor are pass-through participation certificates, which are an ownership interest in the issuing trust, the entity that holds the pools.

The first step in the securitization process is the creation of a pool of designated mortgages by the sponsor. The mortgages can be originated by the sponsor itself, purchased from other financial institutions, or be a mixture of self-originated and purchased loans. Before creating the pool, the sponsor reviews a sample of the mortgages in order to verify that they comport with underwriting guidelines.

After the pool of designated mortgages has been created by the sponsor, the mortgages are transferred to the depositor. The depositor carves up the projected cash flow from the mortgages into tranches; the tranches are ordered by seniority on the basis of risk, thus, any losses in the loan pool are applied to the junior (riskiest) tranches first. Once the tranche structure has been finalized, the proposed security is sent to rating agencies for evaluation. Next, the depositor transfers the mortgage pool to the issuing trust, which issues participation certificates for each tranche. The issuing trust then conveys the participation certificates to the depositor as consideration for the mortgages.

Once the depositor is in possession of the participation certificates, the underwriter will begin marketing the RMBS to potential investors, providing them with free writing prospectuses and term sheets. The depositor then transfers the certificates to the underwriter, who will sell them to investors and remit the proceeds to the depositor, minus underwriting fees.

In this action, MS & Co. underwrote and sold all the RMBS in dispute, MSMC was the sponsor of 15 of the 21 securitizations, MSAC served as depositor for 17 of the securitizations, and MSC served as depositor for three of the securitizations.

Plaintiffs allege they were fraudulently induced into purchasing the RMBS by defendants. Specifically, plaintiffs allege defendants misrepresented the due diligence and underwriting standards on the underlying mortgages, misrepresented the loan to value ("LTV") ratios of the mortgaged properties, and misrepresented the debt to income ("DTI") ratios of the borrowers. Plaintiffs further contend that defendants misrepresented the risks associated with the RMBS in general, and made misrepresentations to rating agencies, resulting in artificially high ratings. Plaintiffs assert that in reliance on defendants’ misrepresentations, they were damaged by paying far more for the RMBS than they were worth. Plaintiffs pray for compensatory, rescissory and punitive damages, as well as costs and expenses incurred in this action. "

"Furthermore, plaintiffs’ own pleadings contradict their assertion that FSAM intended to assign fraud claims, in that they allege that "[t]he Dexia Plaintiffs could not have uncovered Morgan Stanley’s fraud until 2011, at the earliest, regardless of the amount of due diligence that they performed." (Am. Compl. ¶ 259.) It is unclear how FSAM could have intended to convey fraud claims of which it was not aware, and were not discoverable for a year and a half after the assignment. "It is manifest that the plaintiff did not intend to assign the cause of action . . . because neither at the time of the assignment, nor of the execution of the conveyance, had the plaintiff discovered the fraud." Fox, 157App. Div. at 368. If FSAM had intended to assign fraud claims which they had not yet discovered, it could have included express language to that effect.

The court concludes that FSAM did not assign fraud claims to assignee-plaintiffs Dexia SA/NV, DHI and DCL; to the extent any fraud claims exist, they remain with FSAM alone. "

"In an action for fraud, "[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong or what is known as the out-of-pocket’ rule." Lama Holding Co. v. Smith Barney, 88 NY2d 413, 421 (1996) (internal quotation marks and citations omitted). "Damages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained." Id. FSAM sustained no losses on the RMBS it purchased; it received exactly the purchase price upon the sale to the Dexia plaintiffs. There is also no allegation that pass-through payments due to FSAM as holders of the participation certificates were missed. To the extent FSAM did receive pass through payments, the RMBS were profitable to them, and there can be no claim of damages. See Jung Hing Leung v. Lotus Ride, 198 AD2d 155, 156 (1st Dep’t 1993).

Even if the court is to accept as true that there have been material misrepresentations, scienter, and justifiable reliance by FSAM, without damages, the claims must be dismissed. [*6]Deception without damages is not actionable, nor is deception, in and of itself, a legally cognizable injury. Small v. Lorillard Tobacco Co., 94 NY2d 43, 56-57 (1999). "

While one might expect that this article is about a statute of limitations question, it is about both moving too fast and waiting too long in a motion for summary judgment.  Imagine the tensions that exist for defense counsel in legal malpractice litigation.  They want the case to end, yet, must amass enough evidence to support a motion.  They want to save legal fees in the defense, yet must spend money to win.  Beyond that, there is a one-summary judgment rule.  You may not move over and over for summary judgment.  What is one to do?

Vinar v Litman 2013 NY Slip Op 06675  Decided on October 16, 2013  Appellate Division, Second Department  is an example of moving too fast (prior to Plaintiff’s deposition) and waiting too long (the one motion rule.)
 

"The plaintiff commenced this action alleging, inter alia, legal malpractice, fraud, and conversion. The defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C. (hereinafter collectively the attorney defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court concluded that their motion for summary judgment constituted their second motion for that relief, and denied it on the ground that they failed to identify the specific new evidence or sufficient cause that would justify the making of a successive summary judgment motion. On appeal, the attorney defendants contend, inter alia, that the court erred in denying their motion since their second summary judgment motion was premised on new evidence that was unavailable at the time of their initial motion.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see Coccia v Liotti, 101 AD3d 664, 666; Powell v Trans-Auto Sys., 32 AD2d 650; Levitz v Robbins Music Corp., 17 AD2d 801). Although, in this context, newly discovered evidence may consist of "deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment" (Auffermann v Distl, 56 AD3d 502, 502; see Coccia v Liotti, 101 AD3d at 666; Alaimo v Mongelli, 93 AD3d 742, 743; Staib v City of New York, 289 AD2d 560), such evidence is not "newly discovered" simply because it was not submitted on the previous motion (Sutter v Wakefern Food Corp., 69 AD3d at 845). Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used [*2]to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means (see Pavlovich v Zimmet, 50 AD3d 1364, 1365; Capuano v Platzner Intl. Group, 5 AD3d 620, 621; Rose v La Joux, 93 AD2d 817, 818; Graney Dev. Corp. v Taksen, 62 AD2d 1148, 1149; Harding v Buchele, 59 AD2d 754, 755; Abramoff v Federal Ins. Co., 48 AD2d 676; Powell v Trans-Auto Sys., 32 AD2d 650). Indeed, "successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Capuano v Platzner Intl. Group, 5 AD3d at 621; see Harding v Buchele, 59 AD2d at 755).

Here, contrary to the contention of the attorney defendants, the plaintiff’s deposition testimony did not constitute newly discovered evidence. Although the plaintiff’s deposition was elicited after the prior summary judgment motion was denied, the purported new facts established by the plaintiff’s deposition testimony could have been asserted by the attorney defendants in support of their previous motion. The purported new facts pertained to matters about which the individual attorney defendants had personal knowledge, and could have been established through alternative evidentiary means…"
 

While not exactly legal malpractice-centric, the question of how plaintiff’s and defendant’s attorneys prepare for a medical malpractice case does touch on whether either is departing from good and accepted practice of law. 

The dispute is easily set forth.  Under Arons v. Jutkowitz,  9 NY3d 393 (2007), Defense counsel were permitted private interviews with treating physicians.  Plaintiffs were required to provide HIPPA authorizations permitting the interviews.

In Charlap v Khan  2013 NY Slip Op 23349   Decided on October 11, 2013  Supreme Court, Erie County  Curran, J. plaintiff’s attorney wrote to the doctors in an attempt to mitigate the effects of a private conversation between defense counsel and the physician.  Plaintiff’s attorney wrote: "I am writing to you regarding a lawsuit that has been commenced on behalf of my late wife, Lisa Charlap, which is listed above. The attorneys for the defendants in this lawsuit have indicated that they intend to contact you, and will attempt to meet with you to discuss the medical treatment you have provided, and perhaps other issues that relate to this lawsuit.
Although I am required to provide these defense lawyers with a written authorization permitting them to contact you, the law does not obligate you in any way to meet with them or talk with them. That decision is entirely yours. If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or to have my attorneys present."

is this permissible?  Is it a departure from good practice for a plaintiff’s attorney not to send such a letter? 

Supreme Court, in this case, held: "Arons did not establish a common law right to conduct a private interview of a non-party witness. To insist that plaintiff’s counsel not request of a witness to be present at defense counsel’s interview is to assert that a plaintiff has a duty to forbear from doing so. Arons did not impose any such duty. Further, any insistence that plaintiff’s counsel has such a duty is the equivalent of demanding that plaintiff’s counsel forebear from representing his or her client with "competence" (Rule 1.1) and "diligence" (Rule 1.3), as required by the Rules. The assertion of one person’s legal right in a court of law should be understood in the adversarial process as ordinarily limiting the rights of the adverse party or imposing a duty thereon. Arons did no such thing in merely indicating that an attorney "may" conduct interviews.

For these reasons, this Court concludes that Arons did not create a "right" to conduct private interviews of non-party witnesses.[FN6] The absence of such a "right" does not, however, mean that the process of non-party witnesses being interviewed by attorneys is without boundaries."

"The Court concludes that the letter which is the subject of this motion does not cross the boundaries set by the Rules. The letter does not advise the witness to do anything [*13]improper under the Rules. It does not even express a preference that the witness not meet with the adversary, which in any event would be permissible under Op. 2009-5. Rather, at most, it is a request to be present during an interview, a request which may or may not be honored by the witness. For these reasons, the Court denies the motions but declines to opine at this time as to whether the letter may be used for credibility purposes during cross examination of the plaintiff (see e.g. David B. Harrison, Annotation, Admissibility and Effect, on Issue of Party’s Credibility or Merits of His Case, of Evidence of Attempts to Intimidate or Influence Witness in Civil Action, 4 ALR 4th 829). "

A shockingly large number of educational institutions in New York and all over the country are now facing their history of teacher-student sexual abuse.  Horace Mann, Brown & Nichols, Poly Prep.  Each have had their past investigated, and in many instances come up short. 

What of the law firms that represented these schools?  Are they responsible for wrongful acts, especially in the nature of deceit?  If they forcefully defended the schools, can they now be held to have violated Judiciary Law 487?

In Zimmerman v. O’Melveny & Myers, LLP we see the competing arguments.  As reported in today’s New York Law Journal, by Andrew Keshner  " O’Melveny & Myers, fighting to dismiss a state suit brought by alumni of an elite Brooklyn prep school that was represented by the firm in a prior federal action, said the alumni cannot sue the firm with "previously abandoned" claims of purported deception on the courts.

In December, 10 Poly Prep Country Day School alumni and two former summer camp participants settled a closely-watched Eastern District lawsuit stemming from alleged decades of abuse by the school’s football coach, Philip Foglietta, now deceased, and the school’s concealment of the actions.

Less than a year after the confidential settlement, many of the same plaintiffs sued O’Melveny and Jeffrey Kohn, the New York managing partner, in Manhattan Supreme Court. Pointing to state Judiciary Law §487—which forbids attorneys’ "deceit or collusion, with intent to deceive the court or any party"—the alumni said the defendants should be held accountable for "their grievous and oft-repeated falsehoods" when defending the school in the federal suit (NYLJ, Aug. 15)."

""After settling an earlier federal court litigation on confidential terms, Plaintiffs are now seeking more money by bringing a new action in which they repeat spurious allegations that the defense lawyers made ‘misrepresentations’ in the earlier action. Plaintiffs made—and then voluntarily abandoned—the identical allegations in the earlier federal proceedings. Plaintiffs’ improper attempt to revive in a new action the allegations they previously abandoned fails as a matter of law for several reasons," O’Melveny said in Zimmerman v. Kohn, 652826/2013."

We often wonder whether legal malpractice cases are subject to a higher form of scrutiny, although it may also be true that mistakes are more often made by attorneys in their worst (underlying) cases.  In any event sometimes a legal malpractice case goes to the jury on the real question of whether plaintiff could have prevailed in the underlying case (the "but for" issue) and sometimes the legal malpractice case is ended at the motion stage. Here is one that was ended early.

Magidson v Badash ; 2012 NY Slip Op 00935 ;  Appellate Division, Second Department is a legal malpractice case in which the underlying matter remains undescribed. The legal malpractice suffered from infirmities in the underlying case, and failed the "but for" problem.
 

"The complaint failed to state a cause of action to recover damages for legal malpractice because the plaintiff neglected to plead that she would have prevailed in the underlying action, commenced in the Supreme Court, New York County, but for the defendants’ alleged malpractice in failing to file certain motions and appeal from certain orders issued in that action (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Kuzmin v Nevsky, 74 AD3d 896, 898; see also Weiner v Hershman & Leicher, 248 AD2d 193).

Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion for leave to amend the complaint, as the proposed amendment was patently devoid of merit. The Appellate Division, First Department, concluded that the complaint in the underlying action was properly dismissed because the plaintiff commenced that action after the applicable statute of limitations had expired (see Magidson v Otterman, 57 AD3d 264, 264), and the proposed amendment, which did not include allegations that the defendants committed malpractice by failing to timely commence the underlying action, would not alter that result (see Matter of New York County DES Litig., 89 NY2d 506, 514; Byrd v Manor, 82 AD3d 813, 815).

Two mega law firms work together to present the case of an attorney against his former partnership. The arbitration goes badly, expert witnesses are precluded and the award is not good for plaintiff.  Shortly thereafter law firm 1 starts a legal malpractice action against law firm 2.  Needless to say, relations between them do not proceed smoothly.

Roberts v Corwin   2013 NY Slip Op 51637(U)   Decided on October 3, 2013   Supreme Court, New York County   Friedman, J. illustrates the fall-out after unsuccessful litigation. 
 

"Mr. Roberts retained Greenberg Traurig to represent him in an arbitration against the firm he founded, Roberts & Finger, LLP. The arbitration panel issued an adverse interim award on May 11, 2006, finding that Mr. Roberts "failed to establish a prima facie case [*2]that he has suffered any damage as a result of the manner in which the dissolution of Rogers & Finger LLP was carried out." (Interim Award, ¶ 10.) The panel’s determination was based in pertinent part on Mr. Roberts’ failure to present expert testimony as to the value of the law firm and its assets. (Id., ¶¶ 8, 9, 10.) Mr. Roberts retained Epstein Becker to serve as co-counsel to Greenberg Traurig in the arbitration in May 2006, after the panel’s issuance of the interim award. (May 2012 Decision at 19.) The panel issued an adverse final award on July 13, 2006, incorporating the interim award. (Final Award.) Mr. Roberts’ petition to vacate the unfavorable final award was denied by order of this Court (Moskowitz, J.), dated April 3, 2007. (Sept. 2012 Decision at 4.) Mr. Roberts ultimately reached a global settlement with Roberts & Finger in August 2007. (Sept. 2012 Decision at 24; Complaint, ¶ 55.)

Shortly after the issuance of the adverse interim award, and while Epstein Becker, through Mr. Cozier, was co-counseling with Greenberg Traurig to obtain relief from the award, Mr. Roberts consulted with John Sachs, also an attorney at Epstein Becker, regarding a possible malpractice action against Greenberg Traurig.[FN1] Although the parties dispute the date as of which Epstein Becker was retained for the malpractice action, it is undisputed that Mr. Roberts consulted with Mr. Sachs as early as May 2006, and that a formal demand was not served until October 2007.[FN2] This demand, made by letter dated October 18, 2007 (Sachs Aff., Ex. 1), asserted that the arbitrators precluded expert testimony on the valuation of Mr. Roberts’ partnership interest based on Greenberg Traurig’s failure to disclose that it would call an expert, and that such failure constituted malpractice. This malpractice action was filed on October 30, 2009, and was also based on Greenberg Traurig’s failure to disclose the expert witness.

Greenberg Traurig contends that Epstein Becker misused its position as co-counsel "to build a record against [Greenberg Traurig] to support a purported malpractice claim." (Ds.’ Memo. of Law in Support at 15.) In support, Greenberg Traurig cites Mr. Corwin’s testimony that he "disclosed to [Epstein Becker] and Cozier, without reservation of any kind, as I would to any of my own colleagues at [Greenberg Traurig], or to any other qualified lawyer selected by Roberts to be my co-counsel, all information that would be helpful to them in understanding the background of the case and, in particular, all aspects of the underlying arbitration." (Corwin Aff., ¶ 17.) "

"As previously noted, Epstein Becker’s simultaneous representation of Mr. Roberts for purposes of both mitigating damages in the arbitration proceeding and preparing for a possible malpractice action raises ethical concerns. (See May 14, 2012 Tr. at 25-26.) However, this case does not involve the egregious conduct in obtaining confidential information through deceptive means, or an inherent conflict of interest, which has been held to require the severe remedy of disqualification.

Greenberg Traurig also relies on alleged violations of the ethical rules governing attorney conduct (22 NYCRR 1200.0) to buttress its claim that Mr. Roberts’ complaint should be dismissed or Epstein Becker disqualified as his attorney. (Ds.’ Memo. in Support at 18-21.) Rule 4.3, which Greenberg Traurig cites, provides that a lawyer shall not "state or imply that the lawyer is disinterested" when communicating with a person who is not represented, or give legal [*4]advice to that person. Rule 8.4 (c) and its predecessor, Disciplinary Rule 1-102, also prohibit dishonest and deceitful conduct. The court credits Greenberg Traurig’s claim that Rule 4.3, which did not exist at the time of Epstein Becker’s alleged misconduct, is consistent with a lawyer’s " general obligation not to engage in conduct involving dishonesty, deceit, fraud, or misrepresentation.’" (Reply Memo. Of Law at 12 [quoting Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated at 850 [2012]].) The court finds, however, that Rule 4.3 is not applicable to the co-counseling relationship. Rule 8.4 (c) also is not implicated because this case does not involve the type of egregious conduct that has been held to warrant disqualification or sanctions. The court further rejects Greenberg Traurig’s claim that Epstein Becker violated Rule 3.1 (a) which provides that a lawyer shall not bring or defend a frivolous claim. Epstein Becker has not engaged in frivolous conduct by arguing in the arbitration proceeding that the panel should not have rejected Mr. Roberts’ damages evidence, while now arguing in this malpractice action that Greenberg Traurig committed malpractice by not noticing an expert on damages. "

In a decision about liability for negligent drug testing, Landon v Kroll Lab. Specialists, Inc.  2013 NY Slip Op 06597  Decided on October 10, 2013  Court of Appeals, Ch. J/   Lippman took time to restate the policy rationale for Dombrowski v. Bulson, 19 NY3d 347(2012).
 

In Landon, plaintiff "commenced this action alleging that Kroll had issued the report reflecting the positive test result both negligently and as part of a policy of deliberate indifference to his rights. The basis for his claim was that the screen test cutoff level employed by Kroll was substantially lower than that recommended by Orasure or by federal standards and that Kroll failed to disclose those differences in its report. As alleged in the complaint, the screen test cutoff level recommended by Orasure is 3.0 ng/ml and the level recommended by the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) is 4.0 ng/ml —- both of which are substantially lower than the 1 ng/ml used by Kroll. The complaint further stated that, despite applicable New York State [*3]Department of Health Laboratory Standards requiring samples to be subject to confirmatory testing through the use of gas chromatography-mass spectronomy, Landon’s sample was not subject to any type of confirmation test before defendant reported a positive result. In addition, the complaint alleged that proposed revisions to SAMHSA guidelines contemplated requiring the taking of a urine sample, contemporaneous with the oral fluid sample, in order to protect federal workers from inaccurate results. The complaint maintained that Kroll knew of, and failed to disclose, the potential for false positive THC readings when oral fluid samples were tested without a simultaneous urine sample. Moreover, plaintiff alleged that the VOP petition was the result of systemic negligence in Kroll’s substance abuse testing practices. He asserted that he was required to serve an extended term of probation, thereby suffering a loss of freedom, as well as emotional and psychological harm, and monetary loss in the form of attorneys’ fees expended in defense of the VOP petition."
 

Of interest in legal malpractice, Judge Lippman went on to explain why defendants were wrong to rely upon Dombrowski.  "Defendant places too much weight upon our recent decision in Dombrowski v Bulson (19 NY3d 347 [2012]), characterizing it as holding that loss of freedom damages are not recoverable in negligence actions. In that case, we found that a legal malpractice action did not lie against a criminal defense attorney to recover nonpecuniary damages. The decision was based in part on policy considerations, including the potentially devastating consequences such liability would have on the criminal justice system and, in particular, the possible deterrent effect it would have on the defense bar concerning the representation of indigent defendants (see Dombrowski, 19 NY3d at 352). Similar policy considerations do not weigh in defendant’s favor here. "
 

In Eighth Ave. Garage Corp. v Kaye Scholer LLP 2012 NY Slip Op 02402  Appellate Division, First Department Kaye Scholer defended itself, and obtained dismissal. Schwartz & Ponterio were unable to save the case for plaintiff.
 

The Court held that "Plaintiffs failed to allege facts in support of their claim of legal malpractice that "permit the inference that, but for defendants’ [alleged negligence], [they] would not have sustained actual, ascertainable damages" (Pyne v Block & Assoc., 305 AD2d 213 [2003]). Although they maintain that as a result of defendants’ negligence in failing to obtain an estoppel certificate from the landlord of the premises where the garage is located, they were unable to sell the subject parking garage, they failed to demonstrate that they would have sold the subject garage but for defendants’ alleged malpractice. In any event, plaintiffs are precluded by the doctrine of collateral estoppel from litigating the issue of whether the landlord’s failure to give them the certificate damaged them, as that issue was raised and decided against plaintiff Eighth Avenue Garage Corporation in a prior proceeding (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404 [2009], lv dismissed 12 NY3d 880 [2009]; see Hirsch v Fink, 89 AD3d 430 [2011]).

Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs’ claims (see Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]opposition to the motion may have existed but could not be stated (see CPLR 3211[d]). "