Gerzog v Goldfarb 2022 NY Slip Op 04120 [206 AD3d 554] June 28, 2022 Appellate Division, First Department discusses the fiduciary duties an accountant may have to its client.

“Plaintiff was an attorney at the law firm of nominal defendant Goldfarb & Gerzog. He claims that he and defendant Goldfarb were partners at the firm and that he was entitled to a one-third share of the firm’s profits. Defendant Migden was the firm’s accountant.

Issues of fact exist as to plaintiff’s partnership status and entitlement to a share of the firm’s profits (see generally M.I.F. Sec. Co. v Stamm & Co., 94 AD2d 211, 214 [1st Dept 1983], affd in part 60 NY2d 936 [1983]). Evidence in the record—including plaintiff’s testimony, the firm’s filing of partnership tax returns and K-1s, and its representations to others—supports plaintiff’s claim that the firm was a partnership and that he was entitled to a percentage of the firm profits (see Rosen v Efros, 258 AD2d 333, 333 [1st Dept 1999]; see also 26 CFR 301.7701-2 [a]; Peterson v Neville, 58 AD3d 489, 489 [1st Dept 2009]). Although the K-1s and representations are not dispositive, they are still relevant (see Rakosi v Sidney Rubell Co., LLC, 155 AD3d 564, 565 [1st Dept 2017]). The fact that the K-1s refer to plaintiff as a “limited partner” is not determinative of whether he had an equity stake, especially given that they also refer to Goldfarb as a limited partner.”

“As to Migden, plaintiff also raises an issue of fact as to the applicability of the exception to the general rule that accountants do not owe clients fiduciary duties. That exception applies “where the allegations include knowledge and concealment of illegal acts and diversions of funds and failure to withdraw in the face of a conflict of interest” (Nate B. & Frances Spingold Found. v Wallin, Simon, Black & Co., 184 AD2d 464, 465-466 [1st Dept 1992]). Plaintiff has submitted evidence from which the factfinder could conclude that Migden [*2]falsely classified Goldfarb’s personal expenses as case preparation expenses on income tax returns, with knowledge that deducting these expenses would reduce the profits available to be paid to plaintiff and that classifying them in this way would conceal the wrongdoing. The fact that plaintiff had access to his K-1s and the firm’s tax returns is immaterial because his claim is that the true nature of Goldfarb’s personal expenses was not obvious on the face of those documents. Plaintiff also submitted evidence indicating that Migden was responsible for categorizing expenses as deductions and did not simply rely on Goldfarb’s assessment. The parties also offered conflicting expert opinions regarding whether an accountant’s duties run to all partners or only to the partner in charge of tax matters. However, whether Migden owed a duty to plaintiff personally is irrelevant to the accounting malpractice claim, which was asserted derivatively on behalf of the firm.

Partial dismissal of the accounting malpractice claim on statute of limitations grounds (see CPLR 214 [6]) is precluded by issues of fact as to whether Migden is equitably estopped from asserting the defense because his alleged concealment of the misconduct induced plaintiff to refrain from filing a timely action (see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; Langston v MFM Contr. Corp., 172 AD3d 583, 584 [1st Dept 2019]), whether the statute of limitations was tolled because Migden was in a fiduciary relationship with the firm (see Robinson v Day, 103 AD3d 584, 586 [1st Dept 2013]), and whether it was tolled under the continuous representation doctrine (see Booth v Kriegel, 36 AD3d 312, 314 [1st Dept 2006]). Although repetition of the same mistake on successive tax returns does not constitute continuous representation, the doctrine may apply where there is repeated intentional disregard of professional standards with respect to the same type of expense (see id. at 315; Ackerman v Price Waterhouse, 252 AD2d 179, 205 [1st Dept 1998]).”

The issue of the reach of a post-answer CPLR 3211 motion and whether it should have been brought as a CPLR 3212 motion came up in an accounting malpractice case in 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.

“Notwithstanding the foregoing, [very significant litigation events] defendants moved for dismissal of the complaint under CPLR 3211 (a) (7) and (c), on the grounds that: (1) Pioneer’s claims are partially barred by the expiration of the statute of limitations; (2) the claims for the remaining years must be dismissed because Pioneer was presented with forged financial statements, and, therefore, never relied upon defendants’ actual audit reports; and (3) TBC’s audit reports are not the proximate cause of Pioneer’s alleged losses (see NYSCEF Doc No. 156). Defendants submit 85 exhibits in support of their motion, including letters, emails, financial statements, deposition transcripts and an affidavit.

Pioneer opposes the motion on the grounds that: (1) the complaint states a claim for [*3]accounting malpractice, and defendants do not argue otherwise; (2) binding precedent of the{**77 Misc 3d at 363} Appellate Division, Third Department precludes the consideration of the 85 exhibits submitted and relied upon by defendants to support their motion under CPLR 3211 (a) (7); and (3) TBC’s arguments for dismissal fail on the merits, even if they properly were before the court.”

“

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).”

In Fierro v Yellen 2022 NY Slip Op 32959(U) August 31, 2022 Supreme Court, Kings County Docket Number: Index No. 523796/2021 Judge: Ingrid Joseph, a case that wended its way through Kings Supreme, and on to the Second Department, everyone in the proceedings take fluid positions on whether there was fraud, whether there was a good class action and on Judiciary Law 487.

The facts are way too long to excerpt here. Here are a portion:

“On August 2, 2000, Cyber-Struct, Inc. (“Cyberstruct”)2, as general contractor, entered into a Standard Form of Agreement (“the contract”) with Dean Boerum Owners, Inc. (“DBO”), as the owner, to construct a new, three-story building containing 21 apartments at 119-125 Boerum Place, 42 Dean Street,· in Brooklyn, New York (“the property”). Pursuant to the contract, Cyberstruct was responsible for the coordination of the construction of the project, and its responsibilities included retaining subcontractors and material suppliers, as necessary,· and paying them for their work and the materials provided by them. Cyberstruct alone (not DBO) was to compensate its subcontractors and material suppliers by using funds paid to Cyberstruct by DBO. Cyberstruct’s contract with DBO required Cyberstruct to complete an American Institute of Architects Application and Certificate for payment at the end of each pay period in order to be paid by DBO. Once Cyberstruct received its funds from DBO, it was obligated, pursuant to the contract and the Lien Law, to forward the appropriate payment to each subcontractor or materialman who applied for payment.

DBO terminated the contract with Cyberstruct in April 2002. According to plaintiffs, at that time, DBO owed Cyberstruct $328,286.49 on the contract. Approximately $160,000 of said sum was retainage, i.e., money earned by the general contractor, but held by the owner, pending job completion. At a meeting held in April 2002 between DBO and Cyberstruct, Cyberstruct presented Philip Mendlow (“Mendlow”), the president of DBO, with a spreadsheet dated April 25, 2002, which indicated that 19 of its subcontractors, suppliers, and/or vendors were owed $353,566.93. Cyberstruct, however, alleges that this amount was the amount owed only if the contract had been fully performed.
Plaintiffs allege that Mendlow entered into a series of executed assignments with
not less than eight of Cyberstruct’s subcontractors and suppliers, one of whom was J.C.
Ryan, a supplier of architectural doors, frames, and finish hardware. The assignment between J.C. Ryan and DBO was dated May 2, 2002 (NYSCEF Doc No. 89), and was executed by Schnipper, who was J.C. Ryan’s President and Chief Executive Officer.
There was also an assignment dated May 2, 2002 by A&A Cibco Construction Inc., an
assignment dated May 2, 2002 by Alta Recycling, an assignment dated May 2, 2002 by
Bay Ridge Mechanical Corp., an assignment dated May 7, 2002 by Express Contracting
Corp., an assignment dated May 6, 2002 by Kamco Supply Co., an assignment dated May 2002 by Empire Restoration Corp., and an assignment dated June 21, 2002 by
Professional Tile Contracting Corp.”

“

Similarly, since plaintiffs’ first cause of action pursuant to Judiciary Law§ 487 is predicated on the same transactions and could have be~n raised in the class action, this
cause of action is also barred bythe doctrine ·of res judicata. In this regard, it is noted that plaintiffs’ Judiciary Law § 487 claim was specifically raised by them in the bankruptcy proceeding, and the bankruptcy court, in a decision and order dated March 31, 2020, ruled that plaintiffs should have sought their remed[y] in the case in which -the wrongdoing allegedly was committed (NYSCEF Doc No. 24 at 15, In re Fierro, 616 BR 596, 608 [Bankr ED NY 2020], quoting Alliance Network, LLC v Sidley Austin LLP, 43 Misc 3d 848, 858 [Sup Ct, NY County 2014 ]). It is binding precedent that the rules of res judicata apply to the decisions of a bankruptcy court” (Winkler v Weiss, 294 AD2d 428, 429 [2d Dept 2002]).”

Discovery errors lead to a large number of legal malpractice claims. in Comprehensive Mental Assessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC 2023 NY Slip Op 00408 Decided on February 1, 2023 Appellate Division, Second Department the legal malpractice case was lost on discovery errors in the actual case itself.

“In 2012, the plaintiffs commenced this action against the defendant law firm, asserting, inter alia, causes of action to recover damages for legal malpractice and unjust enrichment. The defendant moved pursuant to CPLR 3126 to strike the complaint and the plaintiffs’ reply to its counterclaims based on the plaintiffs’ failure to comply with discovery orders directing them to produce certain individuals for depositions. While the motion was pending, the plaintiffs’ attorney moved to be relieved as counsel. By order dated April 18, 2018, the Supreme Court granted the motion of the plaintiffs’ attorney and stayed the action for 60 days in order to afford the plaintiffs the opportunity to retain new counsel, which it noted “is required for corporate entities.” The plaintiffs subsequently defaulted in opposing the defendant’s motion. By order dated July 18, 2018, the court granted the defendant’s unopposed motion.

Thereafter, the plaintiffs moved pursuant to CPLR 5015(a)(1) to vacate the order dated July 18, 2018. By order dated July 24, 2019, the Supreme Court denied the motion. The plaintiffs appeal.

In order to vacate their default in opposing the defendant’s motion pursuant to CPLR 3126 to strike the complaint and the plaintiffs’ reply to the defendant’s counterclaims, the plaintiffs were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141; Follors v TI Ozone Park Stor., LLC, 209 AD3d 843). Here, the plaintiffs [*2]failed to demonstrate a reasonable excuse for their default in opposing the defendant’s motion (see CPLR 5015[a][1]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 814). Contrary to the plaintiffs’ contention that they were not aware that corporations must be represented by counsel pursuant to CPLR 321(a), the order dated April 18, 2018, specifically stated that counsel “is required for corporate entities.” The record reflects that the plaintiffs’ former counsel served that order upon them.”

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 discusses the question of continuous representation tolls to the statute of limitations in accounting malpractice cases. Often, the statute is calculated by reference to tax filings and tax years. However, there can be continuous representation for other accounting tasks.

“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. Concur—Gische, J.P., Kern, Gesmer, Rodriguez, Pitt, JJ.”

Judiciary Law 487 claims, along with all other claims were dismissed in this claim of extortion, fraud and deceit and defamation case. in Murphy v Kozlowska 2022 NY Slip Op 32947(U) September 2, 2022 Supreme Court, New York County Docket Number: Index No. 150978/2022 Judge: Lisa S. Headley discussed the case allegations.

“On February 2, 2022, the plaintiff filed this action against defendants for alleged illegal acts committed by defendants, including conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. In the complaint, plaintiff alleges, inter alia, that defendant Gary Certain told plaintiff that if the case was not settled quick, “it will not look good for him” and “to lay out $750,000 if [plaintiff] didn’t want any problems.” Plaintiff alleges that such interaction is considered blackmail and extortion. Plaintiff
contends that this interaction caused emotional distress to plaintiff. Further, plaintiff alleges that defendant Kozlowska is in possession of electronic devices belonging to plaintiff that Kozlowska is using, along with her co-defendants, in order to blackmail and extort plaintiff. Plaintiff alleges that defendant Kozlowska has been saying “untrue things” about plaintiff to third parties, causing damage to plaintiffs reputation.”

“Defendants’ motion to dismiss must be granted in its entirety as plaintiff has failed to state a cause of action for conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages as the complaint on its face is based on bare legal conclusions and insufficient factual evidence to fit within any cognizable legal theory.”

“Likewise, plaintiff failed to state a cause of action for deceit. “A violation of Judiciary Law § 487 may be established either by the defendant’s alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant.” Duszynski v. Allstate Ins. Co., 107 A.D. 3d 1448, 1449 ( 4th Dep’t 2013). Plaintiff does not set forth any evidence to show how defendants’ conduct was deceitful, nor how plaintiff was misled by defendants’ conduct.

Lastly, plaintiff fails to state a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. Plaintiff does not set forth evidence to show that defendants “by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to another. ” The Restatement (2nd) of Torts, §46. Plaintiff states he was scared by defendants alleged blackmail and had suffered physical and mental pain, but does not delineate any specific evidence of the severe emotional distress he encountered as a result of
defendants’ supposed conduct. Plaintiff merely asserts bare conclusions without any factual evidence to support his claims.”

In what appears to be an attorney v. attorney case, which asks for Prima Facie Tort and Judiciary Law 487, Defendant failed to answer. Supreme Court forgave. The Appellate Division did not.

“The plaintiff commenced this action to recover damages for prima facie tort and violation of Judiciary Law § 487. After the defendant failed to timely answer the complaint, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint or for a hearing on the issue of any reasonable excuse [*2]offered by the defendant. The defendant cross-moved, inter alia, to compel the plaintiff to accept her late answer. The defendant separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order entered February 16, 2018, the Supreme Court denied the plaintiff’s motion, in effect, granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and granted the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

Thereafter, the plaintiff moved for leave to renew and reargue its motion and its opposition to the defendant’s cross motion and separate motion. In an order entered March 25, 2019, the Supreme Court denied the plaintiff’s motion.

The plaintiff appeals from the orders entered February 16, 2018, and March 25, 2019, respectively.

“A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Bank of Am., N.A. v Viener, 172 AD3d 795, 796; see Jacobson v Val, 206 AD3d 803, 804). To avoid the entry of a default judgment upon the failure to answer the complaint, a defendant must make a similar showing (see Sadowski v Windsor Vil. Apts. Co., LLC, 200 AD3d 816, 817; Yuxi Li v Caruso, 161 AD3d 1132, 1133). “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Nowakowski v Stages, 179 AD3d 822, 823 [internal quotation marks omitted]; see Jinwu Yu v Hong Qin Jiang, 205 AD3d 1012, 1013).

Here, the defendant failed to provide a reasonable excuse for her delay in answering the complaint, as her claims that her and her counsel’s respective medical issues prevented her from timely answering the complaint were vague and unsupported by any medical documentation (see PennyMac Corp. v Sellitti, 193 AD3d 959; Dankenbrink v Dankenbrink, 154 AD3d 809, 810; Salatino v Pompa, 134 AD3d 692, 693). Since the Supreme Court should not have granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint was untimely, as a defendant must make this motion before service of the responsive pleading is required (see id. § 3211[e]; Wan Li Situ v MTA Bus Co., 130 AD3d 807, 808). Accordingly, the court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint, denied that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and denied the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.”

Delo v O’Connor 2022 NY Slip Op 34135(U) December 7, 2022 Supreme Court, New York County Docket Number: Index No. 652721/2022 Judge: Arlene P. Bluth is the kind of case that judges are prepared to dismiss wholesale. Judges, viewing this type of legal malpractice claim often find that everything is speculative, even when facts/arguments are properly pled.

“This action, in which plaintiff represents himself, relates to an underlying litigation in
which plaintiff, also self-represented, sued non-party JPMorgan for employment-related issues. Defendants here are the attorneys and law firm which represented JPMorgan in that case, which was commenced and settled in federal court.

Here, plaintiff alleges that defendants made a misrepresentation to the federal court
regarding an agreement for an extension of time to answer the complaint filed in that case. Ms. Queliz, representing JPMorgan, submitted a letter to the court requesting an extension to answer the complaint, stating that she had “consulted Plaintiff on [her] request, and he has given his consent for the additional time,” (NYSCEF Doc. No. 11). Plaintiff then submitted a separate letter stating Ms. Queliz made a misrepresentation to the Court, stating that there was a condition that JPMorgan accept service, which was merely emailed to JPMorgan. After receiving both letters, U.S. District Judge Vernon S. Broderick issued an order granting JPMorgan’s request for an extension of time.”

”

Pursuant to CPLR 3211 (a)(1), the documentary evidence submitted indicates that Ms.
Queliz did not misrepresent any facts in the underlying action. As Ms. Queliz attempted to explain to plaintiff in her emails, plaintiff attempted to serve JPMorgan by emailing the summons and complaint. That, of course, is not a permissible way to effectuate service. Ms. Queliz agreed to accept service this way and asked plaintiff to extend the time for JPMorgan to respond. Plaintiff agreed (NYSCEF Doc. No. 9 at 5). After this exchange, Ms. Queliz received from her client a request to waive service that was submitted by plaintiff after he sent the complaint to JPMorgan but before she came to an agreement with him. Ms. Queliz attempted to clarify whether there would be a waiver of service or an acceptance of service, and when plaintiff failed to communicate either, Ms. Queliz wrote to the court requesting an extension of time to answer. Plaintiff, self-represented, believed that because Ms. Queliz had all the documents, a waiver of service was not necessary. But this is not how service works; just because the defendants had the papers does not mean they were appropriately served under New
York law.

In any event, even after receiving plaintiff’s letter alleging fraudulent conduct, Judge
Broderick granted the extension. If plaintiff thought that decision was improper, then he should have sought to vacate it or appeal that decision in the court where it occurred. Instead, plaintiff accepted it, settled that case and signed a release.
The release, signed by plaintiff, states that plaintiff “knowingly and voluntarily releases
[entities’ present and former attorneys], both individually and in their business capacities, to the full extent permitted by law, from all claims, [and] causes of action,” (NYSCEF Doc. No. 13 at 3). Despite releasing the attorneys, he sues them here.

Additionally, plaintiff failed to state a cause of action against the attorneys for a party
with whom he settled an action. His claim that he would have received a default judgment for $2 million if defendants had not allegedly committed fraud upon the federal court is total speculation. He did not show that he properly served JPMorgan or adequately explain how this Court can ignore the fact that plaintiff voluntarily settled the case. As defendants stated, if plaintiff believes there was fraudulent conduct during the course of litigation, then the appropriate remedy is to pursue a vacatur of the stipulation of dismissal.”