In Komolov v Popik  2020 NY Slip Op 30909(U)  April 7, 2020 Supreme Court, New York County Docket Number: Index No. 155100/2017 Judge: Barbara Jaffe determines that both prior Supreme Court judges and Appellate Division panels made fundamental mistakes.  They each inconsistently ignored a written contract.  They each applied incorrect standards to determining motions to dismiss.  They failed to apply statutes correctly.  How can this be?  What does it mean to a claim of legal malpractice?

“It is undisputed that before the 2010 action was dismissed, defendants had been unable to obtain the condominium contract of sale from plaintiffs or their prior counsel, and it is
consistently observed in the pertinent judicial decisions that defendants’ failure to obtain the contract was not their fault. Plaintiffs do not demonstrate otherwise. Therefore, defendants establish that the dismissal in the 2010 action of the cause of action relating to the sale of the condominium did not result from their negligence.

Moreover, as the motion to dismiss was addressed to the sufficiency of the pleadings, the motion court’s decision to dismiss the condominium contract claim based not on a deficiency in pleading but on plaintiffs’ failure to produce the contract as evidence is inexplicable and unsupported by the law.

Nor is there merit to plaintiffs’ claim that defendants should have advanced quasicontractual causes of action in the 2010 action as a cause of action for breach of contract is
barred by the statute of frauds absent the contract, and may not be revived or contravened by the assertion of quasi-contractual claims based on the same contract.
Although defendants thereafter obtained the contract and submitted it in support of their claims in the 2011 action, the motion court apparently overlooked it in dismissing the contract claim in that action. That dismissal was upheld on appeal even though the appellate court had been aware that the contract had been produced in the 2010 action. Although the appellate court agreed that the motion to dismiss was addressed to the pleadings only and not to the merits of the claims, and for that reason reinstated plaintiffs’ causes of action related to the artwork and paintings, it inconsistently determined that the dismissal of the breach of contract claim related to the condominium had been on the merits.

Defendants’ subsequent motion to renew based on the newly discovered contract was denied, the justice deeming herself bound by the appellate decision, even though she believed it
was erroneous. Consequently, defendants demonstrate that the courts, not them, caused the dismissal of the causes of action relating to the condominium sale. Even had defendants moved for leave to renew earlier or appealed the 2010 dismissal, plaintiffs offer no evidence that the dismissal would have been vacated or reversed and/or that they would have then prevailed. Their assertion to the contrary is conclusory and fatally speculative. (See e.g., Brooks v Lewin, 21 AD3d 731 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [speculation on future events insufficient to establish causation in malpractice action]; John P. Tilden, Ltd. v Profeta & Eisenstein, 236 AD3d 292 [1st Dept 1997] [contention that had attorneys filed timely motion for leave to appeal, court would have granted leave and reversed

decision, and retrial would have resulted in more favorable outcome, too speculative to support causation]). Indeed, the motion court in the 2011 action denied plaintiffs summary judgment and found that, had there been an existing breach of contract claim, there were issues of fact as to their entitlement to the balance of the condominium payment.
In any event, plaintiffs ultimately moved, years later, for leave to renew the 2010 decision dismissing their claim and, while the motion court observed that their delay in moving
was a factor in her decision to deny leave, she also ruled that she was bound by the appellate affirmance of the dismissal of the claim.

Moreover, defendants’ decision to file the 2011 action rather than move for leave to renew or appeal the 2010 dismissal constitutes a strategic determination, as the dismissal of most
of the causes of action was based on the insufficiency of allegations pleaded in the complaint, and plaintiffs offer no evidence, expert or otherwise, showing that the strategy is improper or unreasonable. And, as the motion court in the 2011 action suggested that were it not for the erroneous dismissal on appeal of plaintiffs’ breach of contract cause of action, she would have considered it on its merits in that action, plaintiffs’ conclusory allegation that the strategy was incorrect does not constitute actionable malpractice. (M&R Ginsburg, LLC v Segel, Goldman et al., 121AD3d1354 [3d Dept 2014] [defendants established that legal course they chose was among several reasonable ones, which did not constitute malpractice; plaintiffs’ speculation that different strategy would have led to better outcome fatally speculative]).

Defendants therefore demonstrate that their strategy in commencing the 2011 action in lieu of moving to renew or appealing the 2010 dismissal was not the proximate cause of
plaintiffs’ litigation loss of the condominium causes of action, and plaintiffs fail to raise a triable issue in opposition. In light of this result, the parties’ arguments regarding the estoppel effect of the accounting action and judgment need not be considered. ”

 

Phillips Nizer LLP v Scollar  2020 NY Slip Op 30791(U) March 13, 2020  Supreme Court, New York County  Docket Number: 154972/2017 Judge: David Benjamin Cohen is an example of how the case within a case doctrine is applied to a legal malpractice counterclaim.  The law firm sued for fees  and the defendant-client counterclaimed for legal malpractice.  The legal malpractice dispute revolved around a custody agreement in a matrimonial case.  As in many such cases, the matrimonial record is replete with stipulations, agreements, rulings and other objective issues that all affect the question of what could the attorney/should the attorney have done?

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169 [2d Dept 2011] citing Leder v Spiegel, 9 NY3d 836 [2007] cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008]). Here, defendant’s Answer with Counterclaim did not state a cause of action for malpractice. Although the Answer with Counterclaim was replete with conclusory statements alleging that plaintiff committed malpractice, failed to exercise reasonable care and that the quality of the representation was substandard, it failed to articulate any facts that could give rise to an inference of malpractice. Thus, the Answer withCounterclaim failed to state a cause of action for malpractice.

Although when addressing a CPLR 321 l(a)(7) motion, affidavits may be freely accepted by a court to remedy any defects in the complaint (Rovella v. Orofino Realty Co., 40 NY2d 633
[1976]), here, even considering the untiled opposition and the documents in support of this motion, defendant has still failed to state a claim for malpractice. In these documents, defendant supplements the facts relating to plaintiffs alleged malpractice. However, adding the supplemental facts still does not save the counterclaim from dismissal. Defendant discusses that she disagreed with the necessity of some of the work (and the costs associated with such work), that plaintiff was very expensive as compared to the other side and generally that the costs were not in line with the quality of service provided. None of those “facts” even if true can give rise to a claim for malpractice for failing to exercise ordinary reasonable skill. Defendant also discusses two other specific complaints. First, that her intention and desire was that a stipulation for summer visitation schedule be valid for the future. Defendant complains that the stipulation was unenforceable as it did not include 2017, 2018 and 2019 and only clearly included 2016.

Defendant’s allegations are refuted by the documentary evidence of the stipulation which discusses 2016 and sets forth the schedule for that year and then states in plain language “In
2017 and each year thereafter … the parties will alternate the forgoing schedule” and required the parties to make adjustments as necessary to accommodate the child’s schedule. To the extent that said stipulation was not “so-ordered” by the Court and defendant argues that the failure by plaintiff to have it “so-ordered” made the stipulation unenforceable, the stipulation also contains an express provision that the stipulation shall be enforceable even in the absence of the expected so-ordering. In any event, the Answer with Counterclaim was dated April 23. 2017 (filed on June 6, 2017). According to her affidavit the issues with the Summer 2017 occurred after an incident in September 201 7, which had not occurred at the time she wrote the counterclaim. ”

 

You have the legal malpractice attorney defendant in a deposition.  Are you permitted to ask questions ?  Of course.  Are they limited to factual questions such as “when were you retained?” or “on what day did you file the motion?”  Surprisingly, no.  Longstanding case law allows the defendant attorney to be questioned as an expert on litigation, on legal malpractice.  But, the retort goes, is the witness here as an expert?  In a word, yes.

The article : “Turning The Defendant Into An Expert” from the April 2, 2020 New York Law Journal explains the law and the strategy.

We are pleased to present the link.

New questions, including those that might have seemed naïve in the past are being asked.  How will the pandemic affect representation of injured clients?  How will attorneys go about their daily tasks?  Will there be new classes of legal malpractice claims as clients suffer negative outcomes?  Will force majeure be applied to claims against attorneys during the spring of 2020?

We don’t know the answers.  For the moment, we plan to continue reporting on events in the legal malpractice world.  One thing that has not changed is the legislated and litigated bar of privity and some wholesale bans on suing attorneys, Klingsberg v Council of Sch. Supervisors & Adm’rs-Local 1  2020 NY Slip Op 02083, Decided on March 25, 2020. Appellate Division, Second Department is a good example.

“In 2013, the plaintiff, a tenured principal at a school in Queens, and employed by nonparty New York City Department of Education (hereinafter the DOE), was removed by the DOE from its payroll upon being charged with multiple financial improprieties. Thereafter, disciplinary proceedings were commenced against the plaintiff pursuant to Education Law § 3020-a. The plaintiff was a member of the defendant union, Council of School Supervisors and Administrators-Local 1: American Federation of School Administrators, AFL-CIO, sued herein as Council of School

Supervisors and Administrators-Local 1: American Foundation of School Administrators, AFL-CIO, (hereinafter the CSA), which had an obligation under a collective bargaining agreement to provide her with representation at those proceedings. In accordance with this obligation, the CSA assigned the defendant Charity Guerra, one of its staff attorneys, to represent the plaintiff throughout the proceedings. Guerra represented the plaintiff until it was made known by the end of the proceedings that Guerra sought a position with the DOE. Although the CSA offered to provide the plaintiff with a new attorney, the plaintiff declined the offer, and decided to represent herself in the remaining portion of the proceedings, including the filing of a closing brief. The arbitrator who presided over the proceedings upheld the DOE’s decision to terminate the plaintiff’s employment. However, the DOE Chancellor overturned the arbitrator’s determination and instead imposed a six-month suspension without pay, after which the plaintiff was returned to a non-administrative teaching position with back pay. Thereafter, the DOE and the plaintiff entered into a settlement agreement [*2]and release (hereinafter the release) in which the plaintiff received lump sum payments totaling $200,000 and a reversion to the position of teacher. The release also included a provision in which the plaintiff agreed, inter alia, to release and discharge the “CSA, its successors or assigns, and all present or former officials, employees, representatives, or agents of the CSA . . . from all charges, complaints, claims, liabilities, or causes of action . . . that the [plaintiff] has or may have against any of the Released Parties.”

“Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction as the cause of action is preempted by federal law (see generally Sharabani v Simon Prop. Group, Inc., 96 AD3d 24, 27). Here, we agree with the Supreme Court’s determination that the complaint insofar as asserted against Guerra is preempted by section 301 of the Federal Labor Management Relations Act, and that attorneys such as Guerra who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants such as the plaintiff where the services performed constitute part of the collective bargaining process (see Mamorella v Derkasch, 276 AD2d 152, 155-157; see also Cherry v Koehler & Isaacs LLP, 96 AD3d 507; Waterman v Transport Workers’ Union Local 100, 176 F3d 150 [2d Cir], citing Atkinson v Sinclair Refining Co., 370 US 238, 246-248).”

 

The question will inevitably come up, perhaps in February 2023 whether the negative outcome of a case in March, 2020 was the result of legal malpractice, force majeure or merely inevitable circumstance.  Judge Marks has published an extensive direction that all “non-essential” matters be postponed.  So, will the failure to make a certain motion be malpractice, the result of an act of nature, or something that was strategically reasonable?

I post this question now, so that thought can be given to the course of conduct, documenting the events and thought process, so that a clear record can be presented in a few years from now.

In a legal malpractice setting, Plaintiff’s motion for partial summary judgment almost never wins. U Joon Sung v Park  2020 NY Slip Op 01571
Decided on March 10, 2020 Appellate Division, First Department illustrates the problem.  Although liability seems obvious, Plaintiff was unable to demonstrated, prima facie that he would have succeeded in proving a “serious injury” within the meaning of the insurance law.

“In this legal malpractice action, plaintiff failed to establish prima facie that, but for defendants’ alleged negligence in representing him in the underlying personal injury action, he would have prevailed in that action (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). The personal injury action, which alleged, as pertinent here, that plaintiff sustained economic loss greater than “basic economic loss” in a motor vehicle accident (see CPLR 5014[a]; 5012[a], [d]), was dismissed as abandoned pursuant to CPLR 3404, and plaintiff’s motion to vacate the dismissal was denied (U. Joon Sung v Feng Ue Jin, 127 AD3d 740 [2d Dept 2015]). However, in this action, plaintiff failed to prove as a matter of law that he sustained in excess of $50,000 in economic loss as related to the accident. While plaintiff claims he left the Marine Reserves due to the injuries he sustained, plaintiff testified that there were no physical requirements to his position and that he was able to perform all of his duties. Thus, his experts’ report estimating that he suffered economic loss in excess of $50,000 based on his remaining a Marine reservist for 20 or 30 years is speculative, as it relies on assumptions, rather than proven facts.”

It’s a chicken or the egg issue.  Attorney drafts will.  Will is negligently drafted. Time goes by.  Will proponent dies.  Beneficiary becomes executrix. Estate sues attorney drafter.  Statute of limitations is raised as a defense.  Was the malpractice complete at the will drafting, or was it complete when the negligent bequest becomes active?

Generally speaking, it is the former, as Schor v Spadaro  2020 NY Slip Op 30668(U) February 26, 2020 Supreme Court, Kings County Docket Number: 525714/2018 Judge: Peter P. Sweeney holds:

“The defendant thereafter drafted a Last Will and Testament for the decedent which the decedent executed on May 26. 2011. In her Will, the decedent bequeathed to her son, Frederick Trapanese, the sum of $10.00 and the remainder of her estate, both real and personal, to the plaintiff. There are no allegations in the complaint that the defendant
performed any additional legal services for the decedent or for the plaintiff after the Will was executed.

The decedent died in 2017. After her death, the plaintiff approached a
representative of Marine Cooperative and asked for permission to access the decedent’s cooperative apartment to possibly renovate it and sell the corresponding shares. By letter dated September 8, 2017, Marine Cooperative informed the plaintiff that it had the right of first refusal and that it would not authorize the sale of decedent’s shares. Plaintiff commenced this action on December 21, 2018 alleging causes of action for legal malpractice, breach of contract and breach of fiduciary duty. All three causes of action are based on the following claims: Plaintiff contends since the defendant had an attorney-client relationship with Marine Cooperative and sat on its Board, she should not have undertook to draft the Will for the decedent. She also contends that the defendant committed malpractice by failing to inform the decedent of the conflict, by failing to obtain a waiver of the conflict from the decedent and for failing inform the decedent of the consequences of Marine Cooperative right of first refusal. Plaintiff alleged that she was damaged in the amount of One Million Dollars ($1,000,000.00) but there are no allegations particularizing these damages. ”

“Here, the defendant established that the plaintiffs’ legal malpractice cause of action accrued no later than May 26, 2011, when the decedent executed the Will. As of this date, all the facts necessary to plaintiffs cause of action for legal malpractice had occurred and plaintiff could have obtained relief in court if her claim was determined to be meritorious.

As of May 26, 2011, all the acts and omissions which plaintiff claims constituted defendant’s malpractice had occurred which caused damage to the decedent “at least nominally and at least equivalent to the value of the cost attendant to having a new will
prepared and executed” (Goldberg v. Bosworth, 29 Misc. 2d 1057, 1060, 215 N.Y.S.2d 849, 852). It is irrelevant that neither the decedent nor the plaintiff was aware of defendant’s alleged malpractice or that plaintiff may have suffered additional damages after this date.

Since plaintiffs legal malpractice claim accrued no later than May 26, 2011, the defendant established, prima facie, that the time within which to sue had expired as of December 21, 2018, when the action was commenced. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled, whether an
exception to the limitations period applied or whether the plaintiff actually commenced the action within the applicable limitations period.

Plaintiffs reliance on Estate of Schneider v. Finmann, 15 N.Y.3d 306, 308, 933 N.E.2d 718, 719 is misplaced. The issue in Finmann was whether the personal representative of a decedent’s estate had sufficient privity with decedent’s attorney to bring legal malpractice action for damages resulting from negligent representation of the decedent in estate tax planning. There was no issue in Finnman as to whether the action
was timely commenced. “

Claiming a violation of Judiciary Law § 487 is easy; proving the allegations is very hard.  Here, in Estate of Lipin v Lipin  2019 NY Slip Op 03897 [172 AD3d 536] May 16, 2019 Appellate Division, First Department, defendant has failed in multiple iterations to make her claims.

“Orders, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about January 4, 2019, which, inter alia, denied pro se defendant Joan C. Lipin’s cross motion to dismiss plaintiffs’ motion for summary judgment in lieu of complaint, her motion to dismiss the action with prejudice, and her motion for contempt, unanimously affirmed, without costs.

Supreme Court denied defendant’s motions as “incomprehensible and lacking any basis in law or fact,” and defendant presents no reason to disturb that determination on appeal. The appeal is, in large part, an apparent effort to relitigate failed claims asserted by defendant, as the plaintiff, in Lipin v Danske Bank (2014 NY Slip Op 32694[U] [Sup Ct, NY County 2014]), a case whose dismissal we affirmed in 2016 (Lipin v Hunt, 137 AD3d 518 [1st Dept 2016], appeal dismissed 27 NY3d 1053 [2016]).

We reject defendant’s stated effort to shoehorn an alleged appeal from a January 2, 2019 order in Lipin v Danske Bank into this appeal.

This action is timely (see CPLR 5014 [1]). Defendant failed to present grounds for holding any attorney in contempt or in violation of Judiciary Law § 487. To the extent defendant purports to offer factual support for arguments, she cites only her own prior, unproven allegations.”

In Zegelstein v The Roth Law Firm PLLC  2020 NY Slip Op 30581(U) February 28, 2020 Supreme Court, New York County Docket Number: 154224/2018 Judge: W. Franc Perry Plaintiff sued insurers and others in State and Federal Court where each of the cases was dismissed. The Legal Malpractice case is now dismissed as well,

”  The original complaint_ in an underlying action alleged that plaintiff Zegelstein is an anesthesiologist and owner of plaintiffs Custom anesthesia Services, PC and Innovative Anesthesia Solutions, P.C. The defendants in that action are alleged to be doctors with practices
in Manhattan, Haroon Chaudry, M,.D. (Chaudry), Michael J. Faust (Faust), M.D., Jed Kaminetsky, M.D.(Kaminetsky), Michael P. Krumholz, M.D. (Krumholz) and Alan Raymond M.D. (Raymond), who entered, beginning in 2002, into separate agreements with Zegelstein for her to provide in-office anesthesia services to their patients, as well as to VCare LLC. The
agreements “provided for Zegelstein’s billing health insurance companies (the ‘insurers’) and/or patients (if uninsured or for balances owed after insurance payments were made) separately from the defendant physicians. Billing for services were allegedly rendered to the patients from June 2007 through 2011″ (Zegelstein v Faust, Slip Op 31257(U), *2 [Sup Ct, NY County 2017]). Zegelstein alleged that insurer/patient funds intended as payment for her services were deposited into accounts of the defendant physicians and converted by them. She alleged that she did not begin to learn of the theft until mid-2012.”

“Plaintiffs commenced that action by filing a summons with notice on April 17, 2014. On or about August 8, 2014, plaintiffs retained defendants to take over the representation of the case. At that time, when Roth provided a substitution of counsel, no summons or summons with notice had yet been served upon the defendants in that action. On August 13, 2014, Roth filed a verified complaint, and served that complaint upon the defendants in that action, but did not
serve the summons or summons with notice upon the defendants. Between August 13, 2014 and October 17, 2014, Roth was advised by counsel for the defendants in that action that they were never served with a summons.” Yet, Roth did not serve the summons.

During October 2014, defendants filed multiple motions to dismiss. On November 26, 2014, Roth, plaintiffs’ counsel at the time, cross-moved to extend the time to file the verified· complaint. On April 25, 2015, Justice Singh rendered a decision dismissing the complaint. In that decision, the court found that it lacked personal jurisdiction over the defendants due to “the failure to serve a, summons with the complaint,” and therefore did not consider plaintiffs’ motion to extend the time to file the complaint. Plaintiffs allege in their complaint herein that at this
point in the underlying litigation that “even though the claim was doomed by the lack of service of a summons, Defendants continued to litigate the action, charge fees and fail to remedy the situation” (complaint, ~ 83). This, however, is contradicted by the testimony in her own affidavit in support of her opposition to defendants’ motion to dismiss, in which Zegelstein avers that she “informed Roth [she] wanted to appeal the decision and he misadvised [her] that [she] should refrain from appealing the decision, because an appeal would have no merit” (Zegelstein aff, ~ 38). ”

“In this action, plaintiffs allege that but for Roth’s “egregious lack of diligence”, plaintiffs’ case would have survived dismissal and had a favorable outcome. Plaintiffs list several failures by Roth, including his failure to serve the summons  in the state case within the 120 days as
mandated by the CPLR, and his failure to attach the proposed amended complaint to his cross motion to amend the complaint, resulting in the denial of that motion. Plaintiffs allege three causes of action: malpractice, breach of contract and breach of fiduciary duty.
Defendants move to dismiss on the ground that plaintiffs cannot maintain a cause of action for malpractice in light of the decisions issued by Justice Singh and District Judge Forrest dismissing the underlying actions. Further, defendants argue that plaintiffs’ causes of action for breach of contract and breach of fiduciary duty are duplicative of plaintiffs’ malpractice claim and, therefore, should be dismissed.”

“The court finds that plaintiffs here are unable to meet their burden to prove that “but for” the alleged negligence of defendant, they would have prevailed in the underlying matter. Plaintiff alleges that defendant’s failure to serve the summons timely, and consequent failure to obtain jurisdiction over the defendants in the underlying action, or to commence a new action, doomed her claim. However, the decisions of both Justice Singh and District Judge Forrest undermine these allegations.

The First Department affirmed Justice Singh’s decision dismissing plaintiffs’ underlying lawsuit:
“In addition to plaintiffs’ extreme lack of diligence, the statute of limitations on the majority of plaintiffs’ claims appears to have expired prior to the initiation of this action, although it is difficult to say with certainty due to the lack of specificity in the complaint. This lack of specificity also weighs against allowing an extension, as does the prejudice suffered by defendants, who were unable to timely investigate plaintiffs’ claims” (Zegelstein v Faust, _AD3d_, 2020 NY Slip Op 00390, at *1-*2 [!51 Dept 2020][intemal citations omitted]).

Further, employing the doctrine of collateral estoppel, this court finds that these two previous decisions bar the claims in this malpractice suit. Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or
proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Telephone Co., 62 NY2d 494, 500 [1984]. “Collateral estoppel … is but a component of the broader doctrine of res judicata which holds
that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action ( Gra’!1atan Home Jnvs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). “

The underlying history of Oberlander v Wolf  2020 NY Slip Op 50263(U)
Decided on February 25, 2020 Supreme Court, Suffolk County St. George, J. goes way back to issues surrounding Felix Sater.  If you recognize that name, you can see the depth of history associated with this case.  The story of the case and present day politics are beyond the scope of a modest blog such as this.

Here, the question is whether an extension should be granted in the filing of a complaint.

“The named defendants in this action are also New York attorneys/law firms who previously represented an individual named Felix Sater in New York courts, mostly in the federal Eastern and Southern Districts. Plaintiffs represented individuals suing Sater on various theories. The federal litigation is long-standing, somewhat complex, and it has resulted in disciplinary action taken by the District Court, Eastern District (one-year suspension commencing September 1, 2018) against Mr. Oberlander, which matter is on appeal.[FN1]

By Motion Sequence 001, plaintiffs request an enlargement of time to serve the complaint through February 8, 2019. With respect to Motion Sequence 001, defendants Robert Wolf and Moses & Singer LLP (the Wolf/LLP) defendants oppose the requested relief. The Beys, Mobargha and Beys, Liston & Mobargha, LLP (the Beys/Mobargha/LLP) defendants did not oppose Motion Sequence 001, but on the same date that opposition to Sequence 001 was filed by Wolf/LLP, the Beys/Mobargha/LLP defendants filed a notice of appearance and demand for a complaint. Asserting that, “in search of economy,” plaintiffs propose in Motion Sequence 002 that they “be allowed to litigate by one complaint;” therefore, they request that Sequence 001 and Sequence 002 be consolidated for determination by the Court.[FN2] Motion Sequence 002 requests an enlargement of time to serve the complaint to a date that the Court “sees fit.”[FN3] The Wolf/LLP defendants and the Beys/Mobargha/LLP defendants each oppose Motion Sequence 002.

The named defendants assert that both of the pending motions should be denied and that the action should be dismissed pursuant to CPLR § 3012 (b) since plaintiffs cannot demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action.”

“There is no support in the submissions to this Court supporting the hyperbolic claim of the plaintiffs in the unsworn summons with notice that the “defendants filed in court over a period of time repeated misrepresentations of fact they knew or recklessly indifferent in not knowing were false with the specific intent to frame plaintiffs for attempted murder (sic)” (Notice, paragraph 45).

Although plaintiffs fail to delineate their basis for claiming that the defendants violated the Judiciary Law, it appears that the claim is based upon the same allegations constituting their claim for common law fraud. In this same vein, as supported by the submitted records of the federal court proceedings and decisions, it is evident that Sater’s attorneys both past and present, who are the named defendants in this action, appear to have engaged in appropriate representation of their client’s interests, without any evidence having been submitted to this Court that remotely supports plaintiffs’ claim that the defendants violated Judiciary Law § 487 making it a misdemeanor for an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (Judiciary Law § 487 [1]; see also Lazich, supraat 754).”