Of the many aphorisms in law, "not good deed goes unpunished" is a pungent reminder of the Newtonian law that every action creates an equal reaction.  Here, in Campbell v Planet Asef Realty 2012 NY Slip Op 50679(U)   Decided on April 10, 2012   Appellate Term, Second Department  we see a recurring legal malpractice situation in one sector of the housing market.  It is the packaged closing for buyer.  In this situation buyer expects broker to provide inspection, mortgage negotiation, assessment and attorney for closing. 
 

"On September 2, 1998, plaintiff and a friend of hers went to the office of defendant Planet Asef Realty (Planet Asef). A broker who worked for Planet Asef showed them a house in Jamaica, New York. Without consulting an attorney, plaintiff and her friend returned to the Planet Asef office on the following day, where they signed a contract to purchase the house in "as is" condition, for the asking price of $189,000. The contract included warranties that the plumbing, heating and electrical systems were in working order and that the roof was free of leaks. On September 25, 1998, plaintiff and her friend consummated their purchase of the house.

Plaintiff brought this action against the seller of the house, the brokerage agency, and [*2]Robert Carrozzo, Esq., the attorney who had represented her at the closing, among others, to recover for damages she had allegedly incurred as a result of the purchase of the house. At her deposition, plaintiff indicated that she had understood that the broker would perform all necessary pre-closing services, including having the premises appraised, obtaining a mortgage commitment for plaintiff, and finding a lawyer to represent her at the closing.

At his deposition, Carrozzo testified that, on September 25, 1998, he had just completed another closing at the office of Planet Asef, when he was approached by a representative of Planet Asef and asked if he could represent plaintiff at her closing. He stated that, after agreeing to represent plaintiff, he had met with her for several minutes before the closing. Carrozzo said that, upon learning that plaintiff had not previously had the house inspected, he had drafted an additional one-page document, which was signed by the seller, plaintiff and her co-purchaser, and which extended both plaintiff’s right to have the premises inspected and the seller’s guaranty of the plumbing, heating and electrical systems and the roof for a period of eight days following the closing. Thereafter, plaintiff closed on the purchase of the house.

Plaintiff failed to have the house inspected during the eight days following the closing or, indeed, until July 1999, at which time she learned that damage from a former structural fire had apparently been cosmetically masked, and that the house required structural remediation, for an estimated cost of $65,000 to $80,000.

At the time plaintiff met Carrozzo, she had already entered into a contract to purchase the house in "as is" condition, with guarantees only as to the plumbing, heating and electrical systems, as well as the roof, none of which were to survive closing. New York adheres, in general, to the doctrine of caveat emptor in real property sales (e.g. Bernardi v Spyratos, 79 AD3d 684, 687 [2010]; Beach 104 St. Realty, Inc. v Kisslev-Mazel Realty, LLC, 76 AD3d 661, 664 [2010]), and a purchaser who, having failed to perform due diligence as to the condition of property prior to signing a contract that provides for the sale of real property in "as is" condition, [*3]is bound by the contract despite structural deficiencies she may later discover in the property (see Daly v Kochanowicz, 67 AD3d 78 [2009]).

Here, plaintiff’s complaints arise from later-discovered structural deficiencies in the property. As Carrozzo demonstrated that plaintiff had committed to the purchase of the property in "as is" condition before she had met Carrozzo and before he had performed legal services for her, Carrozzo presented evidence that plaintiff was unable to prove at least one essential element of her cause of action against him: to wit, that by a breach of his duty, Carrozzo had caused plaintiff’s alleged damages. It was thus incumbent on plaintiff to come forward with evidence that a triable issue of fact existed as to Carrozzo’s liability (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff failed to meet this burden, we conclude that the Civil Court properly awarded summary judgment dismissing plaintiff’s cause of action against Carrozzo for legal malpractice. "

Legal Malpractice litigation is ubiquitous and arises in many interesting and unique settings.  In Abramowitz v Lefkowicz & Gottfried, LLP  2012 NY Slip Op 31011(U)  April 11, 2012
Sup Ct, Nassau County  Docket Number: 015385-11  Judge: Arthur M. Diamond  we see legal malpractice litigation after the fallout of contract litigation claims between a company which designed collective coins and the Daily News, which had an agreement to market, promote and advertise the coins and to share profits.  It fell apart.

As Chief Financial Officer of23KT Gold Collectibles, Abramowitz retained the law firm to represent it in connection with its dispute with the Daily News on March 31 , 2009. More specifically, the law firm was retained to institute a lawsuit on behalf of 23KT Gold Collectibles against the Daily News and to defend against anticipated counterclaims or retaliatory claims advanced by the Daily News. The Retainer Agreement provided that Lefkowicz & Gottfried cannot, and therefore does not, in any manner by entering (that Agreement or otherwise, make any promises or guarantees with regard to the outcome of the Client’s claims " and that it was not retained to represent 23KT Gold Collectibles with regard to "an appeal of any sort or kind.

In this action seeking to recover for inter alia, legal malpractice, the plaintiffs maintain that  Lefkowicz & Gottfried should have notified the Daily News that it was in breach before commencing
23KT Gold Collectibles’ first action against it; that they negligently drafted the first complaint and
failed to cure the vital errors contained therein; that they negligently defended against the Daily
News summary judgment motion and never sought leave to amend to correct vital errors in the complaint; and, that they negligently responded to the Daily News’ discovery request. They also
allege that the law firm failed to respond to their requests regarding the status of the lawsuit and to
keep them apprised of critical developments and furthermore, concealed negative facts from them.
The plaintiffs also maintain that Lefkowicz & Gottfried never told them that the Daily News had
procured summary judgment dismissing their complaint against it; that they refused to appeal from
that order; and that they never sought additional discovery documents from them even though they
were faced with a conditional order of dismissal.

The plaintiffs additionally allege that a dispute arose at a meeting on September 13 2011 between Lefkowicz, Abramowitz, Abramowitz s brother Matt and Goldberg, 23KT Gold Collectibles and Merrick Mint Ltd.’s successor attorney. More specifically, they allege that Lefkowicz attempted to leave the meeting but Abramowitz would not allow him to do so whereupon Lefkowicz allegedly pushed him and left. Abramowitz alleges that Lefkowicz then went to the police and filed a complaint swearing that he had threatened him with a gun causing him to fear for his life, which Abramowitz adamantly denies. Abramowitz alleges that he ultimately surrendered to the police where he remained in custody while the charges, Menacing in the First Degree and Harassment in the Second Degree were prepared.

The complaint fails to plead facts which would establish an attorney-client relationship
between Abramowitz and the defendants. While the plaintiffs have alleged that the defendant
represented 23KT Gold Collectibles, Ltd. and Merrick Mint Ltd. , they have not alleged facts
indicative of a relationship with Abramowitz, individually.

Merrick Mint Ltd. was not a party to the agreement with the Daily News. The defendants’ misnomer of it as a plaintiff in 23KT Gold Collectibles’ suit against the Daily News did not cause it any damages. While theoretically it could have been held responsible on the Daily News
counterclaims, the Daily News could not have established its liability. More importantly, judgment
was in fact only procured against 23KT Gold Collectibles. And, the plaintiffs have not established
that the settlement included Merrick Mint Ltd. Accordingly, Merrick Mint Ltd. suffered no damage
as a result of the defendants ‘ alleged negligence. Merrick Mint Ltd. s legal malpractice claim is
dismissed pursuant to CPLR 3211 (a)(1), (7)..

The plaintiffs ‘ have amply alleged facts establishing the defendants ‘ negligent handling of  their case against the Daily News as well as ensuing damages. Furthermore, the documentary evidence relied on by the defendants does not conclusively establish that the plaintiffs could not have prevailed on their claims against the Daily News: Issues of fact exists as to whether the plaintiffs would have prevailed against the Daily News on their claims and in defense of the Daily News counterclaims. Dismissal of the 23KT Gold Collectibles’ legal malpractice claim pursuant to CPLR 9321 1 (a)(1), (7) is denied. See, Sicilano v. Forchelli & Forchelli 17 AD3d 343 (2 Dept 2005), citing Shopsin Siben Siben 268 AD2d 578 (2 Dept 2000); see also, Pechko Gendelman, 20 AD3d 404 (2 Dept 2005).."

Legal malpractice litigagnts, as well as most other plaintiffs, would like to bring a case where they live. It’s convenient, it’s more likely favorable, and it’s easier. However, a case which took place in a neighboring state may not be proper to bring in NY. Here is an example. In Paolucci v Kamas
2011 NY Slip Op 03823 ;  Appellate Division, Second Department, plaintiff finds that the case may not be brought in NY. The AD doesn’t say, but the events leading to legal malpractice litigation took place in Kansas.
 

"Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants’ contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210). [*2]"
 

Justice Ling-Cohan writes a basic textbook of how an account stated case is decided in an attorney fee setting in Mintz & Fraade, P.C. v Docuport, Inc.  2012 NY Slip Op 30974(U)  April 11, 2012  Supreme Court, New York County  Docket Number: 603125/07  Judge: Doris Ling-Cohan.  Here the law firm loses.

"Before this court are three motions: (1) Plaintiffs motion pursuant to CPLR $321 l(5) and CPLR 5214(6), to dismiss defendant’s counterclaim of breach of fiduciary duty, upon the ground that it is time barred by the applicable 3-year statute of limitation; (2) Defendant’s cross-motion to dismiss plaintiff’s first, second, third and fourth causes of action; and (3) Plaintiffs motion pursuant to CPLR 53212 for summary judgment on the complaint and to dismiss defendant’s counterclaim.

In support of its motion to dismiss defendant’s counterclaim of breach of fiduciary duty, plaintiff
maintains that such counterclaim is barred by the three (3) year statute of limitation which applies to such a claim. In opposition, defendant argues that its counterclaim is not barred the statute of
limitations, since such counterclaim and plaintiffs claims arise from the same transactions,  occurrences or series of occurrences, namely plaintiffs provision of legal services, and thus, pursuant to CPLR §203(d), defendant may pursue its counterclaim, in the nature of recoupment or set-off against any amount plaintiff seeks to recover on its claims. This court agrees. 

Defendant’s cross-motion to dismiss is procedurally defective in that a statutory basis or dismissal is not supplied. See Rubin v. Rubin, 72 AD2d 536 (1’‘ Dept 1979); Tortorice v. Tortorice, 55 Misc 2d 649 (Sup Court, Kings County 1968); CPLR §2214(a); CPLR $321 l(e). CPLR §2214(a) specifically provides that the grounds for the relief demanded must be specified in the notice of motion, which defendant failed to do herein. Moreover, the affidavit supplied by defendant in support of its crossmotion to dismiss, asserts numerous times, that,“there exists material issues of fact.. .” regarding plaintiffs claims, conceding that dismissal is not warranted at this juncture. [Thus, defendant’s cross-motion is denied.

At the outset the court notes that, while plaintiffs notice of motion indicates that it is seeking summary judgment with respect to (1) the complaint, and (2) defendant’s counterclaim, plaintiff only argues in support of summary judgment based upon its account stated cause of action and dismissal of defendant’s counterclaim, in the moving papers. Thus, as no legal or factual basis has been supplied with respect to granting summary judgment on plaintiffs causes of action for breach of contract, unjust enrichment and quantum meruit, summary judgment is denied as to such causes of action.

As to plaintiffs cause of action for an account stated, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, since the invoices supplied in support of its claim do “not set forth [its] hourly rate, the billable hours expended, or the particular services rendered”, as required, and, thus, summary judgment is denied. Ween v. DOW3,5 AD3d 58 (1st Dept 2006). In Peen, the First Department, searched the record, to specifically find that plaintiff was not entitled to summary judgment for failing to make a prima facie showing, because the invoices submitted in support did not include counsel’s “hourly rate, the billable hours expended, or the particular services rendered”. Id. at 62; see  also Kaye, Scholer, Fierman, Hays & Handler, LLP v. L.B. Russell Chemicals, Inc,, 246 AD2d 479 ( 1st  Dept 1998); Herbert Paul, P. C. v. Coleman, 236 AD2d 268 (1‘ Dept 1997); Diamond & Golomb, P. C., 140 AD2d 183 (1 Sf Dept 1988). "

This attorney fee dispute went through the Supreme Court, the Appellate Division, Arbitration, and back to Supreme court.  In the end opposition papers were rejected, cross-motions were filed 5 hours late, and the case ended up with a big award on the attorney fees.  We wonder if they are collectible?

In Hoffinger Stern & Ross, LLP v Neuman   2012 NY Slip Op 30951(U)   April 10, 2012
Supreme Court, New York County   Docket Number: 113111/09   Judge: Louis B. York we see the Court deciding this issue.

"Plaintiff moves for partial summary judgment on its account stated cause of action, and for dismissal of defendants’ affirmative defenses, Defendants cross-move for summary judgment
dismissing plaintiffs account stated cause of action, and for dismissal of all defendants except
Philip Neuman (Neuman) from this action.
This is an action for breach of contract, account stated, unjust enrichment and quantum
meruit. According to the complaint, plaintiff served as the legal counsel for Neuman and the
other defendants, which are entities owned and or controlled by Neuman, or associates of
Neuman. Neuman retained plaintiff beginning on July 12,2006.For almost two years, plaintiff
was the legal representative of defendants in over a dozen actions in New York and New Jersey.
Plaintiff is seeking the recovery of fees for legal services performed in these actions, as well as
other work done on behalf of defendants.

Plaintiff previously brought a similar action against defendants, entitled Hoffinger Stern & Ross LLP v Neuman, et al., Index No, 105427/08 in this court. Plaintiff sought summary judgment against Neuman on its account stated cause of action. The court in that action held that, pursuant to Part 137 of the Rules of the Chief Administration (Rules), defendant had the right to arbitrate a fee dispute. The court therefore dismissed the action. Plaintiff claimed that it gave Neuman thirty days written notice of his right to seek arbitration. Neuman never filed a request for arbitration. Plaintiff thereafter brought the present suit, again seeking summary judgment on the account stated cause of action, this time against defendants, jointly and severally.

In a decision dated May 5,201 0 (the May 5,2010 decision), this court held that Neuman
had waived his right to arbitrate and could be sued in court.The court granted plaintiff summary judgment on the account stated cause of action and granted dismissal of defendants’ affirmative defenses on the ground that they were inadequately pleaded. Defendants sought a reargument and/or renewal of the May 5,20 10 decision, which was denied. However, on appeal, the Appellate Division, First Department, reversed the May 5, 2010 decision, holding that there was an issue of fact as to whether or not defendants objected to a bill  that was issued one day before plaintiff brought the first action. The dismissal of the affirmative defenses was also reversed on the ground that plaintiff would not have been prejudiced if defendants sought leave to replead.  Plaintiff is now moving again for summary judgment on his account stated cause of action, this time related to a single invoice, dated March which he allegedly sent to defendants. He seeks the amount of $654,651.

According to plaintiff, defendants’ counsel requested an adjournment, and asserted
that opposition papers would be served on plaintiff by noon on November 15,2011. The parties
thereafter executed a stipulation, which was submitted to the court, providing that defendants
agreed to waived their right to file opposition papers if they were not served by the abovesaid
time and date.

Plaintiff asserts that defendants’ counsel served plaintiff belated papers, on 4:59 p.m. on
November 15. The papers included the cross-motion, Defendants’ counsel allegedly informed
plaintiff that they were unaware of the due time. Defendants’ counsel also deny that there was a
default on their part. Plaintiff seeks to enforce the terms of the stipulation, and demands that the
cross motion and opposition papers be rejected as a matter of law.

The court finds that defendants are precluded from relying on the Grande decision. They had the option of raising this issue when they failed to make a timely cross motion pursuant to the PCO. Once they assented to the stipulation, they were bound to strictly comply with its terms. In the absence of any other assertion of good cause, defendants cannot bring their untimely cross motion. Therefore, the cross motion for summary judgment is denied. The court will consider defendants’ opposition to plaintiffs motion, as plaintiff have not been prejudiced by the delay,

Here, as in the previous motion, plaintiff raises similar arguments, though it concentrates on only one invoice, And defendants assumes the same position as previously. As the court examines the record, it finds that, with respect to the March invoice, there is no evidence of Neuman objecting or questioning the nature or amount of this invoice. The court will grant partial summary judgment to plaintiff.

In the Third Department certain types of cases seem to predominate. One such type is tax matters. This case, Dealey-Doe-Eyes Maddux v Schur ; 2011 NY Slip Op 02763 ; Appellate Division,  Third Department falls into that category. A failed tax action against Fulton County, followed by a failed legal malpractice action, followed by two later attempts to get it started once again. The question is, why and how do plaintiffs pro-se- persist?
 

"Defendant, an attorney, represented plaintiff in a tax assessment proceeding that she initiated against the Town of Oppenheim, Fulton County, during which she contends the Town was held in contempt. In 2003, plaintiff commenced this legal malpractice action against defendant alleging that he never filed an order with Supreme Court memorializing the contempt finding it issued against the Town and, as a result, was negligent in the legal representation that he provided her in that proceeding [FN1]. After plaintiff completed the presentation of her proof at trial, Supreme Court granted defendant’s motion to dismiss.

Subsequently, plaintiff filed a motion to renew (see CPLR 2221 [e]) seeking to reopen her action against defendant on the ground that she had recently received a letter from the Chief Clerk of the Supreme and County Courts in Fulton County that constituted new evidence confirming that the Town had been held in contempt in the tax assessment proceeding. Initially, [*2]Supreme Court determined that plaintiff was, in fact, not filing a motion to renew but, instead, was filing a motion to be relieved from the effects of a prior judgment (see CPLR 5015). After making that determination, Supreme Court denied plaintiff’s motion because she had failed to demonstrate that she had acted with due diligence in the discovery of this evidence and, even if it had been available at trial, plaintiff did not establish that there would have been a different result.[FN2]

One year later, plaintiff filed another motion to renew (see CPLR 2221 [e]), once again claiming that she had discovered new evidence which, if admitted at trial, would have resulted in a finding that defendant was negligent. This evidence included papers filed by defendant in support of the application seeking a contempt citation against the Town, as well as letters that plaintiff received from the Supreme and County Court Clerk’s office documenting her efforts to establish that a contempt finding had been issued against the Town. Supreme Court again converted plaintiff’s application into a motion to be relieved from a prior judgment (see CPLR 5015) and denied it because the evidence submitted by plaintiff was not new, nor would it have made a difference if introduced into evidence at trial. Plaintiff now appeals. "
 

Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro   2012 NY Slip Op 02676   Decided on April 10, 2012   Appellate Division, Second Department   we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant’s representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant’s breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred. "

The short answer to the question is yes, they do;  the longer answer to the question is that their rights to first amendment protection of speech is very limited, and litigation over those rights will be stringently examined, or better put, subject to strict scrutiny.  In Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U)  April 3, 2012  Sup Ct, NY County  Docket Number: 109449/2008
Judge: Saliann Scarpulla both plaintiff’s case against the Police Department and his later legal malpractice case against the attorneys are lost.

"Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police Department (“NYPD”) officer. In June 2003, while still employed with the NYPD, Ruotolo commenced a civil rights action in the United States District Court for the Southern District of New York (“the civil rights action”) against the City of New York and several NYPD supervisors (collectively “the City defendants”). Non-party William Rold (“Rold”) initially represented Ruotolo in the civil rights action. In the civil rights action Ruotolo alleged that the City defendants retaliated against him for writing a report (“the Report”) about the possible health effects of environmental contamination in the 50th precinct, where Ruotolo served as a Command Safety Officer. Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied him time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons. Ruotolo asserted claims that these retaliation-or.y actions violated the First Amendment and Due Process clauses of the U.S. Constitution, and various state whistle blower laws. "

"In November 2003, the City defendants moved to dismiss Ruotolo’s complaint, arguing that the Report was not protected by the First Amendment because Ruotolo prepared it in his capacity as a public employee, not as a private citizen. On August 25, 2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due Process claims but granted the motion with respect to the state whistle blower claims. Then, in February 2004, the NYPD charged Ruotolo with visiting an out of borough location while on duty, subsequently placed him on modified duty and confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action."

"Before the action could proceed to trial, the United States Supreme Court issued its decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that the First Amendment does not “protect[] a government employee €from discipline based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3. Thereafter, the City defendants renewed their motion for summary judgment dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s official duties as a police officer, and thus was not protected by the First Amendment. In opposition, M&N argued that the amended complaint should in fairness be read to include Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary judgment, holding that Ruotolo prepared the Report pursuant to his official job duties and therefore had no First Amendment claim with respect to the Report. Ruotolo v. City of New York, 2006 U.S. Dist. LEXIS 49903,  (S.D.N.Y. July 19,2006).’ Because Ruotolo had not pled any claim based upon the conversation with the PBA attorney in either the initial or amended complaints, Judge Stein based his dismissal of the civil rights action solely on claims arising from the Report itself. However, Judge Stein noted that even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First Amendment claim would fail because that discussion was held pursuant to Ruotolo’s official job duties, which included ‘‘answering questions about safety issues at the
precinct.” Ruotolo v. City of New Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)"

"Here, defendants have made a prima face showing that Ruotolo would not have prevailed on his First Amendment claim even if defendants had amended the complaint to include Ruotolo’s conversations with the PBA attorney in April, 2000. The First Amendment does not protect public employees from adverse employment decisions based on communications they make pursuant to their official duties, see Weintraub v. Bd, of Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient  evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant to his official duties."

"Defendants have also shown that Ruotolo would not have succeeded on a Due Process claim based on the City defendants’ deprivation of Ruotolo’s’s firearms. Where a government agency randomly and arbitrarily deprives a citizen of a protected property interest, due process is satisfied if the state provides an adequate post-deprivation remedy. Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir. 1996)."