All the non-tax liability claims in Treanor v Dimopoulos 2023 NY Slip Op 32260(U)
July 5, 2023 Supreme Court, New York County Docket Number: Index No. 159106/2022
Judge: Mary V. Rosado are dismissed. Claims that advice on how to pay certain awards caused unnecessary tax liability survive.

“Plaintiff alleges that Defendants did not disclose to Plaintiff their “intimate relationship” with Dr. Abrams or purported allegiance to him (id. at 126). Plaintiff alleges that she met with Dr. Abrams four times and that he asked inappropriate questions about sexual acts3 (id. at 1, 27-29). “On or about October 2018 (sic)” Dr. Abrams issued a report where he concluded that both parents had loving relationship with their children, and that access should be equal, and that the current schedule should remain in place (id. at~ 33). Despite this outcome, Plaintiff alleges Dr. Abrams “punished” her in the report due to Plaintiffs objection to Dr. Abrams’ “sexual inquiries” by stating that Plaintiff “was not as intelligent as Adam, and that Adam provided a little more for the
children’s needs than Plaintiff’ (id. at, 34).

Plaintiff alleges that on December 20, 2018, the matrimonial court issued an order deeming her the monied spouse based on imputed income and its failure to impute income to Adam, resulting in Plaintiffs obligations to pay child support and amounts to maintain the marital residence (id. at, 35).”

“The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report, and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report,
and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim (id. at 873). Moreover, there are no allegations related to breaching a promise to acehive a specific result, but only allegations about breaches of vague and non-specific (and somewhat boilerplate) provisions of the retainer agreement (see Mamoon v Dot Net Inc., 135 AD3d 656 [1st Dept 2016] citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 3 5, 3 9 [1st Dept 1998] [ dismissing breach of contract claim as duplicative of legal malpractice claim where there were no allegations about a breach of a promise to achieve a specific result]; see also Alphas v Smith, 147 AD3d 557 [1st Dept 2017]). Thus, the breach of contract cause of action is dismissed.”

” Finally, there is no actionable malpractice from Defendants’ motion seeking to withdraw as counsel due to their fundamental disagreements with Plaintiff over the strategy to move forward in the underlying matrimonial action. Indeed, the Rules of Professional conduct explicitly states that a lawyer may withdraw from representing a client if the client “insists upon taking action with which the lawyer has a fundamental disagreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [ 4]) or if the client “renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [7]).

However, Plaintiff’s allegation that the Defendants “provided improper advice as to the payment of certain amounts required under the pendente lite order, which caused Ms. Treanor to incur substantial tax liability” survives (see NYSCEF Doc. 4 at , 124). Accepting the factual allegations as true, as this Court must on a pre-answer motion to dismiss, failure to advise a client on the tax consequences of withdrawing money from retirement accounts in a divorce action states a claim for legal malpractice for purposes of a pre-answer motion to dismiss (Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]).”

Cavounis v Azour 2023 NY Slip Op 03676 Decided on July 5, 2023 Appellate Division, Second Department is a rope-a-dope example of non-compliance in discovery being permitted, several times. Defendant attorney made demands which were irrelevant to the case and was thrice turned down, the ultimate denial being on appeal.

“

On August 29, 2014, the plaintiff commenced this action against Yousef Azour, Crown Plaza Ltd., A2Z Development Corp., Azour, LLC (hereinafter collectively the Azour defendants), and Ronen Shiponi. He asserted causes of action sounding in, inter alia, breach of contract, conversion, unjust enrichment, and breach of fiduciary duty against the Azour defendants, and sounding in legal malpractice and breach of fiduciary duty against Shiponi.

Shiponi served upon the plaintiff a notice for discovery and inspection dated June 4, 2018. The plaintiff did not respond, and Shiponi moved, inter alia, pursuant to CPLR 3124 to compel the plaintiff to respond. By order entered March 20, 2019, the Supreme Court, among other things, denied that branch of the motion, determining, inter alia, that the evidence sought was outside the scope of the litigation.

After the plaintiff appeared for an examination before trial, Shiponi served a notice for discovery and inspection dated December 19, 2019. The plaintiff failed to respond, and Shiponi moved, inter alia, pursuant to CPLR 3124 to compel the plaintiff to respond to the notice for discovery and inspection dated December 19, 2019. By order dated September 8, 2020, the Supreme Court, among other things, denied that branch of the motion, once again determining that the evidence sought was outside the scope of the litigation. Shiponi appeals, and we affirm.

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518). “A [*2]motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome” (Bennett v State Farm Fire & Cas. Co., 189 AD3d 749, 750). Here, the Supreme Court providently exercised its discretion in denying that branch of Shiponi’s motion which was pursuant to CPLR 3124 to compel the plaintiff to comply with the notice for discovery and inspection dated December 19, 2019, as that discovery demand sought information that was not relevant to the issues in this action (see id.).”

Silverstein v Gregory 2023 NY Slip Op 31939(U) May 30, 2023 Supreme Court, New York County Docket Number: Index No. 151024/2022 Judge: Dakota D. Ramseur is an example of what we think is the most complicated of cases: a legal malpractice (or Judiciary Law 487 case) based upon a medical malpractice case. The facts, the testimony and the overwhelming records all make for a very complicated issue.

Here, the question is whether conduct at trial, in which it is alleged that the defense attorney asked questions and sought testimony contrary to the medical records can comprise violation of Judiciary Law 487.

“Plaintiff, Barbara Silverstein (plaintiff), commenced this action pursuant to New York
Judiciary Law§ 487 and for libel against defendants Robin Gregory, Esq. (Gregory) and Wilson Elser Moskowitz Edelman & Dicker LLP (Wilson Elser) (collectively, defendants) stemming from their representation of the defendant in the disposed underlying action in New York County entitled Silverstein v Farr Nezhat, et al., Index no. 109486/2006 (the underlying action). Defendants now move pursuant to CPLR 321 l(a)(l), (7) to dismiss the amended complaint. Plaintiff opposes defendants’ motion and cross-moves for leave to amend her amended verified complaint, and pursuant to CPLR 602 to consolidate the instant action with the underlying action. For the following reasons, the motion to dismiss the complaint is granted, and the cross-motion is denied.”

“In her affidavit in support of her motion to vacate the jury verdict, plaintiff avers that
Gregory violated Judiciary Law § 487 “by having Dr. Gharibo falsely testify that Plaintiff
suffered from Narcotic Bowel Syndrome” (Berk [Silverstein] affidavit, ,i 86). In her amended complaint, plaintiff alleges that this testimony directly contradicted her medical records: “despite there being a complete absence of any medical records documenting that Plaintiff suffered from severe stomach aches following her taking pain medication” (amended complaint. With respect to Dr. Gharibo, a pain doctor who solely treated musculoskeletal problems, and not GYN issues, he testified that Dr. Grenell overprescribed narcotics to Silverstein and Gregory violated Judiciary Law § 487 by intentionally misrepresenting the amount of pain medication plaintiff was taking (id., ,i 70). Gregory falsely told the jury that “Plaintiff was a drug addict at a time that
Opioid abuse was all over the news” (Berk [Silverstein] affidavit.

Plaintiff’s position is essentially that Nezhat, Drs. Herzog and Kavaler, and Dr. Gharibo
testified falsely, all part of an intentional plan by Gregory. Specifically, Gregory had Drs.
Herzog, Kavaler and Gharibo testify that plaintiff failed to follow Dr. Grenell’s recommendation to see a cognitive behavioral therapist (amended complaint, ,i 71). Gregory had the insurance records reflecting the name of plaintiff’s cognitive behavioral therapist. Although plaintiff provided authorizations to Gregory for all of her relevant medical treatment, which established the truth of plaintiff’s condition, in contravention of these documents, Gregory had these witnesses lie at trial. Furthermore, Gregory intentionally misrepresented the amount of pain medication that plaintiff was taking and falsely told the jury that plaintiff was a drug addict (id., ,i 81). But again, according to plaintiff, the medical records, including the updated pharmacy
authorizations that Gregory received throughout the case, establish how much medication plaintiff was taking and how often the prescriptions were filled prior to trial. Plaintiff argues that Dr. Gharibo made false statements about plaintiff’s addiction to opioids despite the information in the medical records.”

“Even accepting all of plaintiff’s allegations as true, this Court cannot find that there are
sufficient facts alleged establishing that Gregory intentionally deceived the court. Plaintiff offers specific facts concerning the testimony of Nezhat and the expert defendants in the underlying action, and how the testimony was not consistent with facts in plaintiff’s possession, or plaintiff’s version of the facts. Yet, plaintiff offers no specific facts concerning either the falsity of the testimony, Gregory’s intention to deceive, or his actual deception upon the court (see Sammy v Haupel, 170 AD3d 1224, 1225 [2d Dept 2019] [the court granted the defendants’ motion to dismiss plaintiff’s section 487 claim on the grounds that the plaintiff failed to set forth “with specificity,” either in her complaint or in her papers opposing the motions, “how the defendants knew or should have known that she did not sign the release upon which they relied
in asserting affirmative defenses on behalf of their clients” or that the defendants had “intended to deceive the court”]).

Here, plaintiff’s conclusory statements that the testimony was false cannot substitute for facts establishing that the testimony was false, or facts supporting that Gregory knew or should have known that the testimony was false. That Nezhat’s testimony during his deposition was not consistent with his testimony at trial does not support a finding that the defendants behaved in an egregious way, as there are many explanations for this inconsistency and no factual basis supporting plaintiff’s claim of deception. Similarly, the fact that the expert witnesses’ testimony on contested issues in the underlying action was not consistent with plaintiff’s testimony, plaintiff’s expectation of defendants’ testimony or with plaintiff’s medical records does not
establish a deceit upon the court.”

Trafelet v Trafelet 2023 NY Slip Op 03563 Decided on June 29, 2023
Appellate Division, First Department is an unusual charging lien case in which the attorneys successfully obtain court determination of its fees, and is yet a defendant in a legal malpractice case. Fees and insurance indemnification are, of course, two different matters. Here, the client actively encouraged the use of certain expensive experts and made no objections at all to the billings.

“BIR is entitled to enforce its charging lien, the existence of which has been recognized by the court (Matter of Trafelet v Cipolla & Co., LLC, 190 AD3d 573 [1st Dept 2021]), and the amount of which was set by stipulation against certain funds held in escrow by plaintiff’s counsel, while maintaining its counterclaim in plaintiff’s legal malpractice action (see Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 218-219 [1st Dept 1997]; Anonymous v Anonymous, 258 AD2d 279, 280 [1st Dept 1999]).”

Ofman v Tenenbaum Berger & Shivers, LLP
2023 NY Slip Op 03471 Decided on June 28, 2023 Appellate Division, Second Department is a case which reversed dismissal of a legal malpractice claim.

“In August 2011, the plaintiff retained the defendants to prosecute an action, inter alia, to recover damages for breach of contract against a contractor who performed renovation work for the plaintiff in 2009 (hereinafter the underlying action). The plaintiff had commenced the underlying action in 2010 through different counsel. On July 9, 2019, a judgment was issued in the underlying action in favor of the plaintiff and against the contractor in the total sum of $541,188.24. According to the plaintiff, he was unable to collect on the judgment because the contractor had since sold his assets and moved to Italy.

In November 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice, alleging that the defendants’ delays in prosecuting the underlying action prevented him from collecting on the judgment. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff filed an amended complaint as of right while the defendants’ motion was pending and opposed the defendants’ motion. In reply, the defendants requested that their motion be addressed to the amended complaint. In an order dated June 23, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, accepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor (see Jean-Paul v Rosenblatt, 208 AD3d at 653; Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024; Oberkirch v Charles G. Eichinger, P.C., 35 AD3d 558, 559; Khadem v Fischer & Kagan, 215 AD2d 441, 442). Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory (see Davis v Farrell Fritz, P.C., 201 AD3d 869, 873).”

Real Estate and conflicts of interest are transactional situations rife with claims of legal malpractice, and Fields v Baker & Hostetler LLP 2023 NY Slip Op 50610(U) Decided on June 23, 2023 Supreme Court, New York County Reed, J. is no exception.

“Plaintiff Richard Fields (Fields) is a resident of the State of New York and a businessman with assets and interests in several states, including certain real property located in Teton County, Wyoming (Wyoming Property) (see complaint, dated April 28, 2020, ¶¶3, 13 and 19 [NYSCEF Doc No. 9]). Plaintiffs Jackson Land and Cattle, LLC, JLC Ranch Development, LLC, and JLC Ranch, LLC are Delaware limited liability companies that own the Wyoming Property, which are controlled and indirectly owned by Fields (id., ¶14). Defendant Baker & Hostetler LLP (Baker) is a law firm allegedly organized as a limited liability partnership under the laws of the State of Ohio (id. ¶15). Defendant Laurence Markowitz (Markowitz) is alleged to be an attorney admitted to practice in the State of New York and a partner in Baker’s New York City office (id. ¶16). Defendant Raymond Sutton (Sutton) is alleged to be an attorney admitted to [*2]practice in the State of Colorado and the managing partner of Baker’s Denver office (id. ¶17).

Plaintiffs allege that, beginning in or about 2005, Baker served as attorneys for Fields and several of his corporate entities on various matters, including estate planning, tax, asset protection, general business advice, and litigation, including litigation involving the Wyoming Property (id. ¶19). During this representation, Fields purportedly shared confidential financial information with Baker, including detailed information about his assets and liabilities (id.).

Plaintiffs contend that Baker acted as escrow agent on a series of transactions involving the execution of a series of mortgages (Mortgages),^[FN2] encumbering the Wyoming Property, and that the mortgagees are business entities controlled by another Baker client, nonparty Raul Rodriguez (Rodriguez) (id. ¶3). Plaintiffs assert, upon information and belief, that defendant Markowitz was an investor in at least one of Rodriguez’s mortgagees (id. ¶7). Plaintiffs further allege that Baker represented Fields and the other plaintiffs as mortgagors and represented Rodriguez and his mortgagees in these transactions (id. ¶3).

Plaintiffs allege that, at the outset, Baker suggested to Fields that they could treat the Mortgages as “pocket mortgages” by holding them in escrow with Baker as the escrow agent, without publicly recording them, to avoid any default being accelerated and called by Bank of America, which already held mortgages on the Wyoming Property (id. ¶5). Plaintiffs contend that Fields executed the first of the Mortgages only after Baker, Rodriguez, and he had agreed that the Mortgages would not be recorded without first obtaining the express consent of both Fields and Rodriguez, and that Markowitz repeatedly acknowledged to Fields in writing that the Mortgages could not be recorded without his permission (id.). Plaintiffs further note that Baker held some of the Mortgages in escrow for over a year (id. ¶6).^[FN3]“

“Defendants contend that plaintiffs’ cause of action for malpractice accrued, if at all, upon execution of the Conflicts Waiver, dated February 26, 2014 (ex B to Siegal affirmation [NYSCEF Doc No. 14]) and that their breach of fiduciary duty claim accrued upon Rodriguez’s recording of the Mortgages, in or around October 2014 (see complaint, ¶55). They further contend that, if it were not for the Tolling Agreement, plaintiffs’ time to assert claims for [*6]malpractice and breach of fiduciary duty would have elapsed before they filed the complaint in this action.

Defendants, citing United States v Bertie Ambulance Serv. (2015 WL 5916691, *6, 2015 US Dist LEXIS 137577, *15 [ ED NC, Oct 8, 2015, No. 2:14-CV-00053-F] [applying NC law]), assert that, by suing them in Wyoming, plaintiffs materially breached the Tolling Agreement’s “forum selection provision” and “that breach, which went ‘to the very heart of the agreement, entitled [defendants] to rescission'” (quoting id., 2015 WL 5916691, at *5-6, 2015 US Dist LEXIS 137577, *17), and so would justify the court’s refusal to enforce the Tolling Agreement (citing OneBeacon Ins. Co. v NL Indus., Inc., 43 AD3d 716, 717-18 [1st Dept 2007]).

There are several flaws in this analysis. First, defendants’ counsel admitted at oral argument of this motion that they had not notified plaintiffs that they had rescinded the Tolling Agreement (Tr. 20:11-15), and so no recission has occurred (see 22A NY Jur2d Contracts § 502 [2d ed., May 2023 update], citing American Union Bank v Gubelman, 212 App Div 488 [1st Dept 1925] [“The failure of a party to perform his or her part of a contract does not per se rescind it, and the other party must manifest his or her intention to rescind within a reasonable time”]).

Furthermore, defendants’ reliance on OneBeacon is misplaced. The alleged breach in that case occurred several days before the effective termination date of the tolling agreement, and the agreement at issue expressly provided that “if either party filed an action in violation thereof, the other party could seek dismissal, without prejudice, that remedy being hereby agreed upon between the parties” (OneBeacon Ins. Co., 43 AD3d at 717 [internal quotation marks omitted]). In this case, the alleged breach occurred after the Tolling Agreement had terminated and the forum selection clause here does not “contain a provision that an action commenced in violation or breach of the [Tolling Agreement] should be dismissed” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft, LLP, 23 Misc 3d 1134 [A], 2009 NY Slip Op 51090 [U], *10 [Sup Ct, NY County 2009], distinguishing OneBeacon). Considering these differing circumstances, defendants’ motion to dismiss plaintiffs’ causes of action for legal malpractice and breach of fiduciary duty as time-barred is denied.”

Murphy v Certain
2023 NY Slip Op 02978
Decided on June 06, 2023
Appellate Division, First Department

“The court properly dismissed the complaint for failure to state a cause of action. The claims for conversion or trespass to chattels were correctly dismissed because they do not sufficiently identify the property at issue (see Sporn v MCA Records, 58 NY2d 482, 487 [1983]). The complaint fails to state a cause of action for defamation and consequently, libel and slander, because it does not set forth the words of the allegedly false statement and it does not allege any other of the requisite elements of the claims (see CPLR 3016 [a]; Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). The deceit under Judiciary Law § 487 and fraud claims were insufficiently pleaded because they do not identify any misrepresentation made by defendants (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; CPLR 3016 [b]). Neither the intentional infliction of emotional distress nor the negligent infliction of emotional distress claims states a cause of action, as the intentional infliction claim does not allege extreme and outrageous conduct by defendants (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]), and the negligent infliction claim does not identify any applicable duty owed by defendants (see Brown v New York Design Ctr., Inc., — AD3d &mdash, 2023 NY Slip Op 01228, *5 [1st Dept 2023]).”

Tueme v Lezama 2023 NY Slip Op 03036 Decided on June 7, 2023 Appellate Division, Second Department is practically a gothic novel, with allegations of false testimony, false accusations and perjured testimony all in aid of getting a better divorce settlement. The Appellate Division reversed and ended the case. Here, we discuss the Judiciary Law 487 claims.

“The plaintiff and the defendant Janet P. Lezama were married in 1990. In 2016, Lezama commenced an action for a divorce and ancillary relief (hereinafter the divorce action) in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC (hereinafter together the attorney defendants). After the divorce was finalized, the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” Among other things, the plaintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff.

The attorney defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. Together with his opposition to the motion, the plaintiff served an amended complaint, which replaced the cause of action to recover damages for negligent infliction of emotional distress with a cause of action to recover damages for intentional infliction of emotional distress. The attorney defendants, in effect, elected to apply their motion to the amended complaint. The Supreme Court considered the attorney defendants’ motion as directed against the amended complaint, and denied the motion. The attorney defendants appeal.”

“Further, the Supreme Court erred in denying those branches of the attorney defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for intentional infliction of emotional distress and violation of Judiciary Law § 487 insofar [*3]as asserted against them. With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v New York Post Co., 81 NY2d 115, 122 [internal quotation marks omitted]; see Matthaus v Hadjedj, 148 AD3d 425, 425-426; Zapata v Tufenkjian, 123 AD3d 814, 816). With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see also Looff v Lawton, 97 NY 478, 482). Moreover, to the extent the plaintiff alleged that Navins gave false testimony as a witness in a criminal case against him, such an allegation cannot properly form the basis of a Judiciary Law § 487 cause of action (see generally Altman v DiPreta, 204 AD3d 965, 969).”