Stevens v Wheeler 2023 NY Slip Op 02747 Decided on May 18, 2023 Appellate Division, First Department is the rare Estate legal malpractice case that survives a dismissal motion. It adequately demonstrates standing, proximate damages and that “but for” the choice of law provision, there would have been a better outcome for the Estate. A defense of strategy is rejected as “bare.”

“Plaintiffs, as co-executors of the decedent’s estate, essentially claim that defendants negligently failed to include a New York choice of law provision in decedent’s will and negligently recommended that decedent’s will be probated in Rhode Island rather than New York. According to plaintiffs, this resulted in decedent’s wife claiming an elective one-half share of the net estate under Rhode Island law, rather than the one-third of his net estate that decedent had bequeathed to her in his will. Decedent’s wife’s elective share claim was ultimately settled by stipulation.

Plaintiffs’ legal malpractice cause of action should not have been dismissed under CPLR 3211 (a) (1) or CPLR 3211 (a) (7) (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The complaint adequately pleaded departure from the standard of care, i.e., failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and proximate cause. Defendants did not establish, as a matter of law, that probate would have been the same regardless of whether the will contained a New York choice of law provision or whether probate was sought in New York instead of Rhode Island. Defendants’ overarching position, that decedent’s wife did not have a statutory right to decline decedent’s bequest and elect to receive one-half of decedent’s net estate under Rhode Island law, is incorrect (RI Gen Laws §§ 33-1-10, 33-28-1, 33-28-4 [a]). Defendants’ bare assertion, that their recommendation of Rhode Island as the probate forum was a reasonable strategic decision under the circumstances, is not persuasive at this stage of the case (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

The settlement of the wife’s elective share claim does not utterly refute plaintiffs’ allegations of proximate cause because the complaint supports the inference that the settlement was effectively compelled by defendants’ malpractice (see Bernstein v Oppenheim & Co., 160 AD2d 428, 429-430 [1st Dept 1990]). Although the complaint does not allege any cognizable pecuniary damage to decedent’s estate, plaintiff Hardie Stevens’s affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]; Rudolf, 8 NY3d at 443; Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendants’ remaining arguments relating to damages are not persuasive on [*2]this 3211 motion.

Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C.
2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022
Platkin, J Supreme Court, Albany County doesn’t decide any motions to dismiss, other than to direct that the issue be decided on a full summary judgment motion. What is interesting is the discussion of the differences and procedures of dispositive motions.

“Analysis

CPLR 3211 (a) (7) allows a party to move for dismissal on the ground that “the pleading fails to state a cause of action.” Such a motion may be made “[a]t any time” (CPLR 3211 [e]).

On a motion to dismiss made pursuant to CPLR 3211 (a), including a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), “either party may submit any evidence that could properly be considered on a motion for summary judgment,” including documentary evidence and affidavits (CPLR 3211 [c]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (id.).

Here, defendants moved under “[CPLR] 3211(a) (7) and 3211(c)” (NYSCEF Doc No. 24), thus inviting conversion of their motion into one for summary judgment. However, the court has not converted the motion, and it will not do so. As defendants were advised at the January 2022 conference, if they wanted their motion treated as one for summary judgment, they needed to move for summary judgment. Accordingly, the court has before it an unconverted, post-answer motion for dismissal under CPLR 3211 (a) (7).

As Pioneer observes, the Appellate Division, Third Department recently summarized the principles governing determination of such a motion. As well-articulated by Presiding Justice Garry,

“[t]he grounds for dismissal under CPLR 3211 (a) (7) are . . . strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits” (Carr v Wegmans Food Mkts., Inc., 182 AD3d 667, 668 [3d Dept 2020]; see John R. Higgitt, CPLR 3211 [a] [7]: Demurrer or Merits-Testing Device?, 73 Alb L Rev 99, 109 [2009]).

“In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant—{**77 Misc 3d at 364}without regard to how compelling claims made in such submissions may appear” (Carr, 182 AD3d at 668 [citations omitted]). “Unless the motion to dismiss is converted by the court to a motion for summary judgment, a motion to dismiss is not in a posture to be resolved as a matter of law” (id. at 669 [internal quotation marks, brackets and citations omitted]).

In so ruling, the Third Department relied on the Court of Appeals’ decision in Miglino v Bally Total Fitness of Greater N.Y., Inc. (20 NY3d 342 [2013]), which declined to dismiss a negligence action under CPLR 3211 (a) (7) based on the defendant’s affidavit. The Court of Appeals explained that the

“matter [came to it] on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits, and [plaintiff] has at least pleaded a viable cause of action” (id. at 351).

The Court of Appeals further emphasized that CPLR 3211 (a) (7) limits a court “to an examination of the pleadings to determine whether they state a cause of action,” obliges the court to “accept facts alleged [in plaintiff’s complaint] as true and interpret them in the light most favorable to plaintiff,” and protects the plaintiff from “be[ing] penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (id.).

Contrary to defendants’ argument in reply, nothing in the Third Department’s decision in Zeppieri v Vinson (190 AD3d 1173 [3d Dept 2021]) alters the mode of analysis for CPLR 3211 (a) (7) motions articulated in Carr. The Third Department’s decision in Zeppieri rejected the argument [*4]that Carr “limit[ed] what may be considered as documentary evidence” (Zeppieri, 190 AD3d at 1175 n), but that discussion pertained to the branch of the dismissal motion brought under CPLR 3211 (a) (1) (see Carr, 182 AD3d at 668). Defendants’ motion is not made under CPLR 3211 (a) (1), and their time in which to raise “a defense . . . founded upon documentary evidence” under that provision expired with service of their answer (see CPLR 3211 [e]).

Nor did defendants move under CPLR 3211 (a) (5) to interpose the defense of the partial expiration of the statute of limitations, and their time in which to do so similarly has expired (see CPLR 3211 [e]). To be sure, defendants preserved the defense in their answer (see id.; see also answer ¶ 156), {**77 Misc 3d at 365}thereby affording them the opportunity to move for summary judgment on the defense or present it at trial (see DeSanctis v Laudeman, 169 AD2d 1026, 1027 [3d Dept 1991] [“although we agree that the issue was properly preserved by defendant, . . . because responsive pleadings were served, defendant’s motion should have been brought pursuant to CPLR 3212 instead of pursuant to CPLR 3211”]; see also CPLR 3212 [c] [contemplating motions for summary judgment “on . . . the grounds enumerated in subdivision (a) or (b) of rule 3211”]).

The court therefore concludes that defendants’ fact-based causation defense and their partial challenge to the timeliness of Pioneer’s claims should, at this juncture, be the subject of a properly supported motion for summary judgment under CPLR 3212, not a motion for dismissal under CPLR 3211 (a) (7) accompanied by an invitation for conversion under CPLR 3211 (c).

In reaching this conclusion, the court recognizes that the Court of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211 (a) (7) through the submission of “conclusive” affidavits and evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976] [“affidavits submitted by the defendant will seldom if ever warrant the relief (it) seeks unless too the affidavits establish conclusively that plaintiff has no cause of action”]), and the other Judicial Departments take a more expansive view of CPLR 3211 (a) (7) (see e.g. Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 410 [1st Dept 2021]).

But this court is obliged to follow the Third Department’s recent precedent in Carr, which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear” (182 AD3d at 668-669).

Moreover, there are sound reasons for requiring motions like the one made here by defendants to be brought under CPLR 3212. Defendants’ approach needlessly deprives the court of useful procedural tools associated with summary judgment motions, including the requirement that parties supply statements of material facts (see Rules of Commercial Div of Sup Ct [22 NYCRR] § 202.70 [g] [rule 19-a]; see also 22 NYCRR 202.8-g).

An evidence-based motion to dismiss under CPLR 3211 (a) (7) also injects needless uncertainty and delay into the motion{**77 Misc 3d at 366} practice,^[FN1] and may allow litigants to evade the proscription [*5]against successive summary judgment motions (see Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 433 [1st Dept 2014]; see also CPLR 3211 [e] [“no more than one (3211) motion shall be permitted”]).

In sum, defendants do not challenge the legal sufficiency of Pioneer’s claim for accounting malpractice, and their unconverted, post-answer CPLR 3211 (a) (7) motion is not an appropriate procedural vehicle by which to interpose a fact-based causation defense or assert the partial expiration of the statute of limitations.

Based on the foregoing, defendants’ motion is denied, without regard to the substantive arguments sought to be made therein and without prejudice to the eventual filing of a proper motion for summary judgment under CPLR 3212.^[FN2]“

Professional malpractice cases (Medical, Legal, Accounting) require either prior transactions or prior litigation. in Weight v Day 2023 NY Slip Op 02350
Decided on May 3, 2023 Appellate Division, Second Department we see how prior litigation can end the professional malpractice case because liability has already been compromised.

“The plaintiff jointly owned and operated a business known as Weight Steel Construction, Inc. (hereinafter Weight Steel), with her former husband, nonparty Joseph Weight. In September 2009, while the plaintiff and her former husband were engaged in divorce proceedings, they hired the defendant Wayne Day, a certified public accountant and a partner at the defendant accounting firm, Day Seckler, LLP, to serve as trustee of Weight Steel until the divorce was final. In February 2014, the plaintiff commenced this action against the defendants, inter alia, to recover damages for accounting malpractice and breach of fiduciary duty. The plaintiff alleged, among other things, that Day failed to prevent her former husband from needlessly using Weight Steel’s assets for his personal gain and failed to properly manage Weight Steel, which caused the demise of that corporation.

In May 2019, the defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that this action was barred by the doctrine of collateral estoppel. The defendants contended that, in the divorce action, the Supreme Court had rejected the plaintiff’s claim that misconduct by her former husband, “with the assistance of others,” caused the demise of Weight Steel and detrimentally impacted the value of her interest in that corporation. The defendants also argued, among other things, that the plaintiff’s claims were based on wrongs to the corporation, which could only be asserted through a derivative action and not in the plaintiff’s individual capacity. The Supreme Court granted the defendants’ motion, and entered a judgment dismissing [*2]the complaint. The plaintiff appeals, and we affirm.

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same” (Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 589; see Buechel v Bain, 97 NY2d 295, 303). To apply the doctrine, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-304; see Moore v Kronick, 187 AD3d 892, 893). Here, the evidence submitted by the defendants in support of their motion, including excerpts from the transcript of the plaintiff’s deposition testimony and a decision after trial in the divorce action, demonstrated, prima facie, that the issue of whether the plaintiff’s former husband engaged in misconduct causing, inter alia, a diminution in the value of Weight Steel, was raised and necessarily decided against the plaintiff in the divorce action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Karakash v Trakas, 163 AD3d 788, 789; Berardi v Berardi, 108 AD3d 406, 407). Therefore, the defendants demonstrated that the doctrine of collateral estoppel precluded the plaintiff from relitigating that issue in this action.”

Kralik v Marai 2023 NY Slip Op 02588 Decided on May 11, 2023
Appellate Division, First Department is an example of the many issues that confront a legal malpractice claim. Statute of limitations, service of process and the application of CPLR 3211(a)(1) in analysis of the “but for” case-within-a-case principle.

“Contrary to the court’s determination, plaintiff’s claim for legal malpractice was not barred by the three-year statute of limitations (CPLR 214[6]). Although the claim accrued on November 4, 2017, when defendant filed for arbitration of the underlying claims on plaintiff’s behalf, the statute of limitations was tolled until the conclusion of the arbitration proceeding on October 10, 2018, when the underlying claims were dismissed, under the continuous representation doctrine (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Defendant’s representation of plaintiff in the arbitration proceeding pertained to the same subject matter as that underlying the legal malpractice claim (see id.; see also Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], lv denied 32 NY3d 911 [2018]). Accordingly, this action, commenced August 3, 2021, was timely.

Plaintiff does not dispute that defendant was improperly served the summons and complaint and, contrary to plaintiff’s contention, defendant did not waive her jurisdictional defenses. Defendant’s nonresponse to plaintiff’s waiver request did not amount to an intentional relinquishment of her rights (see EchoStar Satellite L.L.C. v ESPN, Inc., 79 AD3d 614, 617-618 [1st Dept 2010]).

Even if defendant’s jurisdictional defenses were waived, the documentary evidence utterly refuted plaintiff’s allegations that defendant failed to adequately apprise him of the deficiencies of his underlying claims before commencing the arbitration proceeding (see CPLR 3211[a][1]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 538-539 [1st Dept 2019]). The evidence established that plaintiff opted to pursue arbitration despite defendant’s advice regarding the weaknesses of his claims, refuting plaintiff’s contention that, but for defendant’s inadequate advice, he would not have proceeded to arbitration and incurred the associated legal fees and costs. The documentary evidence also established that defendant’s representation comported with the terms of the parties’ retainer agreement. “

Darby Scott, Ltd. v Michael S. Libock & Co. LLC CPAs 2022 NY Slip Op 06746 [210 AD3d 582] November 29, 2022 Appellate Division, First Department gives a very short answer to whether “continuous representation” exists in accounting malpractice (aside from tax year calculations). It seems to where the accountants perform non-tax filing work.

“The record presents issues of fact as to whether the continuous representation doctrine applies to render plaintiff’s accounting malpractice claim timely—namely, whether the work by defendants’ representatives in September and October 2010 constituted a continuation of the services that are the subject of plaintiff’s claim, or at least constituted related remedial services (see Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 606-607 [2d Dept 2013]; Ackerman v Price Waterhouse, 252 AD2d 179, 205 [1st Dept 1998]).

Issues of fact also exist as to whether defendants breached their duty to plaintiff (see Berg v Eisner LLP, 94 AD3d 496, 496 [1st Dept 2012]). Although the engagement letters executed by the parties stated that defendants would perform bookkeeping and administrative tasks, neither party has offered an authoritative definition of the scope of these tasks. Nor has either party eliminated issues of fact as to whether the agreed-upon services were performed in a manner consistent with professional accounting standards (id.). Thus, the record presents issues of fact as to the scope of the engagement letters, and whether defendants’ alleged failure to notify plaintiff of recurring inventory and invoicing issues, or at least the full extent of those issues, constituted a breach of their duty (see Cumis Ins. Socy. v Tooke, 293 AD2d 794, 798 [3d Dept 2002]; cf. Italia Imports v Weisberg & Lesk, 220 AD2d 226, 226 [1st Dept 1995]).

Furthermore, issues of fact exist as to whether defendants proximately caused plaintiff’s damages. Even if it was plaintiff’s responsibility to track its inventory and implement internal controls, it is not clear as a matter of law whether at least some of plaintiff’s losses could have been avoided if defendants had fulfilled their duty to report known inventory and invoicing irregularities to plaintiff (see DG Liquidation v Anchin, Block & Anchin, 300 AD2d 70 [1st Dept 2002]). Plaintiff was not required to offer conclusive proof of the exact amount of damages it suffered in order to defeat an award of summary judgment in defendants’ favor. “

Nasca v Greene 2023 NY Slip Op 02317 Decided on May 3, 2023 Appellate Division, Second Department discusses the reach of Judiciary Law 487. Not all deceitful acts are subject to JL 487 claims.

“

In February 2019, the plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 and unjust enrichment, alleging, among other things, that the plaintiff obtained a lien on certain real property owned by nonparty John Finocchio, and that the defendant attorneys colluded with Finocchio to transfer title to that property to nonparty 40-19 Realty, LLC (hereinafter the LLC), to circumvent the plaintiff’s lien. Thereafter, the defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In an order dated January 8, 2020, the Supreme Court, among other things, granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging violation of Judiciary Law § 487 and unjust enrichment. The plaintiff appeals.

“An attorney is liable under Judiciary Law § 487(1) if he or she is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP, 191 AD3d 864, 866 [alterations and internal quotation marks omitted]). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698; see Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP, 191 AD3d at 866). Further, except where there is deceit directed against a court, Judiciary Law § 487 “applies only to wrongful conduct by an attorney in an action that is actually pending” (Mahler v Campagna, 60 AD3d 1009, 1012-1013; see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; Meimeteas v Carter Ledyard & Milburn LLP, 105 AD3d 643, 643). Here, the plaintiff failed to allege wrongful conduct by the defendants during the course of a pending judicial proceeding or directed against a court. Rather, the alleged wrongful conduct involved the drafting of title documents and the securing of a mortgage, which occurred outside of a judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 204; Hansen v Caffry, 280 AD2d 704, 705). Accordingly, the Supreme Court properly granted [*2]that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 for failure to state a cause of action.”

Miho Suzuki v Greenberg 2023 NY Slip Op 31289(U) April 21, 2023 Supreme Court, New York County Docket Number: Index No. 159360/2021 Judge: David B. Cohen may be the only case in which summary judgment was granted to plaintiff on a Judiciary Law 487 claim. It leans heavily on a prior finding in a matrimonial action.

“Plaintiff moves for summary judgment, pursuant to CPLR 3212, seeking an award of
treble damages against defendant for an alleged violation of Section 487 of the Judiciary Law. Defendant cross-moves for summary judgment, seeking an order dismissing plaintiffs complaint, and sanctioning plaintiff and her attorney for their alleged frivolous conduct in bringing this action.
Background
Plaintiff, a resident of the State of Michigan ( complaint ,JI [NYSCEF Doc No. 197]),
previously resided in the State of New York, during her 2002 marriage to, and later separation from, her former husband Sebastian Gollings (see id. ,i,i 3-7 and Plaintiff aff,J3 [NYSCEF Doc No. 176]). Plaintiff and Gollings have one child togther, Kira Gollings, who was born on April 25, 2006 ( complaint ,J,J3-4 and Plaintiff aff,J3).

Gollings commenced an action for divorce against plaintiff in 2014, represented by a
non-party attorney, in New York County Supreme Court under Index Number 309246/2014 (Divorce Action) ( complaint, ,J5).
On October 19, 2015, plaintiff and Gollings entered into a settlement of the Divorce
Action, documented by a stipulation, a parenting plan, and a child support stipulation (Plaintiff statement of material facts [SOP] [NYSCEF Doc No. 200], ,J3). Plaintiff alleges that these agreements provided, among other things, that she and Gollings would share joint legal custody of Kira and that Gollings would have residential custody ( complaint ,J6). “

“At an inquest held on October 19, 2015, before a justice of this Court, Gollings and
plaintiff presented their executed stipulation, parenting plan, and child support stipulation to the Court, and allocuted to the terms of these agreements. The justice presiding informed the parties that they were now bound by the agreements but not yet divorced, and directed counsel to prepare and submit the necessary documents, including a proposed judgment, to finalize matters (see ex B to Defendant’s affidavit in support of cross-motion in sequence number 003 [hearing tr.] [NYSCEF Doc No. 206]).
Plaintiff alleges that Gollings’ s attorney failed to submit the proposed judgment and
ancillary documents needed for the judgment of divorce to be granted and that, from 2015 to 2018, she and Gollings remained separated but adhered to their parenting plan with respect to their child ( complaint, ,J7).”

“Here, plaintiff establishes her prima facie entitlement to judgment on her claim, by
demonstrating that the justice presiding over the divorce action already determined that defendant attempted to deceive or mislead the court by failing to include or mention the Final Custody Order when filing for a final judgment of divorce, which caused her to incur damages in the form of attorney fees and costs (see e.g. Schindler v Isller & Schrage, P.C., 262 AD2d 226 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999] [plaintiff granted judgment on Judiciary Law § 487 claim as defendant law firm knowingly withheld crucial information from court in underlying action]; cf Betz v Blatt, 160 AD3d 696 [2d Dept 2018] [defendant attorney was properly denied summary dismissal of Judiciary Law § 487 claim based on allegations that he filed blatantly deficient accounting with court, which delayed administration of estate, and
caused estate to incur legal fees]; see also Amaltifano v Rosenberg, 428 F Supp 2d 196 [SD NY 2006] [attempted deceit is sufficient to trigger liability under section 487]). Moreover, given the prior finding that defendant intentionally attempted to mislead the court, he is estopped from arguing otherwise here.”

“For the foregoing reasons, it is hereby
ORDERED that plaintiffs motion for summary judgment on her sole cause of action, for
violation of Judiciary Law Section§ 487, is granted, and the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant in the sum of $54,774.00, with interest at the statutory rate, from the date of this decision, as calculated by the clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that defendant’s cross motion is denied; and it is further ORDERED, that the clerk is directed to enter judgment accordingly.”

Siegel v Melito & Adolfsen, P.C. 2023 NY Slip Op 31373(U) April 14, 2023
Supreme Court, New York County Docket Number: Index No. 152781/2022
Judge: Dakota D. Ramseur is a primer on how to avoid a statute of limitations problem in a legal malpractice setting when a claim against the first of several attorneys may become stale while waiting for the outcome of the underlying action.

“Plaintiff, Florence Siegel (plaintiff), commenced this action for malpractice against
defendants, Melito & Adolfsen, P.C. (Melito & Adolfsen.), Louis Adolfsen, Esq. (Adolfsen),
Steven Lewbel, Esq. (Lewbel) (collectively, the moving defendants), W. John Weir, Esq. (Weir) and Weir & Associates (Weir Associates), stemming from their alleged failure to file a timely notice of claim concerning a pending action commenced by plaintiff in Supreme Court, New York County, entitled Siegel v City of New York, et al., Index No. 156682/2018 (the pending action). Defendants now moves pursuant to CPLR 3211 (a)(l) and (7) to dismiss the amended complaint. Plaintiff opposes the motion and cross-moves pursuant to CPLR 2201 to stay the action pending the determination of the pending action. For the following reasons, the moving defendants’ motion is denied, and plaintiff’s cross-motion is granted in part.”

“On January 26, 2023, defendants in the pending action, New York City Transit Authority
and Manhattan and Bronx Surface Transit Operating Authority, filed a notice of motion to dismiss the complaint pursuant to General Municipal Law § 50-e, on the grounds that the notice of claim is untimely, insufficient, inaccurate, and fatally defective. Those defendants specifically argue that the notice of claim was “stamped received by personal service on November 8, 2017 at 4: 15 p.m. The Notice of Claim was filed on the 91st day and beyond the ninety day period for filing a Notice of Claim” (pending action, NYSCEF doc. no. 83 at ,i 4). The motion is marked as submitted and a decision is imminent.”

“The moving defendants fail to demonstrate that the documentary evidence utterly refutes plaintiff’s allegations that the notice of claim was not timely filed or that they were not negligent for failing to amend or refile the notice of claim. The documentary evidence submitted by defendants consists of the NYCTA Accident Report, the original notice of claim, the letter from NYCTA objecting to the notice of claim, a transcript of the NYCTA 50-h hearing and an email from Associates concerning the NYCTA letter. Plaintiff’s accident occurred on August 9, 2017 and the notice of claim was marked as received on November 8, 2017-ninety-one days from the date of plaintiff’s incident. None of the aforesaid documents refute plaintiff’s allegation that the notice of claim was untimely filed.

In addition, there is no second notice of claim, which the moving defendants contend
was filed by plaintiff. The subject email, dated January 23, 2018, indicates that the refiling of the notice of claim was done. In her cross-motion papers, plaintiff states that there is no record of this second notice of claim, apparently denying any involvement in the alleged refiling. In the absence of a second notice of claim, there is no conclusive proof from the evidence that the filing of the notice of claim was timely.”

“Plaintiffs cross-motion for a stay in this action pending the outcome of the pending
action is granted and the moving defendants’ motion is denied. Pursuant to CPLR 2201, “the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” A court may grant a stay where the determination in one action may dispose or limit issues in a separate action (Uptown Healthcare Mgmt., Inc. v Rivkin Raddler LLP, 116 AD3d 631 [1st Dept 2014]; SSA Holdings LLC v Kaplan, 120 A.D.3d 1111 [1st Dept 2014]). An outcome in the pending action would resolve issues in this action, including the issue of whether plaintiff was damaged because of defendants’ alleged negligence (see Corrado v Rubine, 25 AD3d 748 [2d Dept 2006] [“Furthermore, since some or all of the components of the damages alleged by the plaintiff may ultimately be addressed in the divorce action, the Supreme
Court improvidently exercised its discretion in denying the plaintiffs cross motion for a stay of all proceedings pending the resolution of that action”]; Belopolsky v Renew Data Corp., 41 AD3d 322, 323 [1st Dept 2007] [granting stay of action where, “the determination of the prior action may dispose of or limit issues which are involved in the subsequent action”] [internal citations omitted]; 187 Street Maza! Manager, LLC v Herrick Feinstein LLP, Sup Ct, New York County, March 11, 2020, Sherwood, J., index no. 158840/2018 [“As any determination of whether the alleged negligence was the proximate cause of plaintiffs’ losses, and whether plaintiffs suffer losses related to the ownership of the property, will be informed by the outcome of the Property Actions, this court will use its discretion to stay this action pending resolution of the Property Actions”]; Emamian v. Liddle & Robinson, L.L.P., Sup Ct, New York County, December 12, 2014, Wooten, J., index no 153144/2014 [staying the legal malpractice action where a resolution in favor of the plaintiff in the pending Federal action may limit the damages
sought against the defendants]). Here, a decision on the motion to dismiss in the pending action may resolve issues in the instant matter. To wit: whether plaintiff was damaged by defendants’ alleged negligence. Thus, the Court exercises its discretion to stay this matter until the resolution of the motion to dismiss the complaint in the pending action.”