Opinion
Index 618506/2017
01-16-2019
GEORGE H. BLADOS, Plaintiff, v. GOGGINS & PALUMBO, WILLIAM C. GOGGINS, and ANTHONY H. PALUMBO, Defendants. Mot. Seq. No. 01-MG
WICKHAM, BRESSLER & GEASA, PC Attorney for Plaintiff HEILIG, BRANIGAN & MILLER, LLP Attorney for Defendants
Unpublished Opinion
MOTION DATE 2-14-18
SUBMIT DATE 12-13-18
WICKHAM, BRESSLER & GEASA, PC
Attorney for Plaintiff
HEILIG, BRANIGAN & MILLER, LLP
Attorney for Defendants
PRESENT: Hon. JOSEPH A. SANTORELL Justice
Joseph A. Santorelli Judge
Upon the following papers numbered 1 to 28 read on this motion to dismiss; Notice of Motion/ Order to Show Cause and supporting papers 1 - 14; Notice of Cross Motion and supporting papers__;Answering Affidavits and supporting papers 15-24; Replying Affidavtts and supporting papers 25 - 28; Other __; (and after hearing counsel in support and opposed to the motion) it is, The defendants seek an order pursuant to CPLR 3211(a)(1) and (5) dismissing the plaintiffs complaint for failure to state a cause of action and based upon the expiration of the statute of limitations. The plaintiff opposes this application.
The plaintiff commenced this action for legal malpractice in connection with his representation by counsel in a contract and foreclosure case. In May 2010 the plaintiff retained the defendant firm to commence an action for non-payment on a note and mortgage against Daniel Calabro in the amount of $851,446.00. On September 1, 2011, Calabro made a settlement offer of $775,000.00 with $400,000.00 being paid as a lump sum payment upon signing a stipulation of settlement and the remaining balance being paid over time. The defendant attorneys felt that the offer was not in the best interests of the plaintiff and advised Blados to continue that litigation to obtain a judgment. Plaintiff Blados chose to accept the offer against his attorneys advice. On September 23, 2011 Blados signed a Client Acknowledgment and the Stipulation of Settlement. In the stipulation Blados agreed "to pay Goggins and Palumbo attorneys fees in the amount of 20% of the settlement amount, which is $155,000.00" with the fees being "paid from the $400,000.00 lump sum payment" Calabro paid the $400,000.00 lump sum payment. The attorney fees were deducted and a check was sent to Blados for the remaining amount. On or about November 16, 2011 Blados was at the defendants' office for an unrelated legal matter and demanded the litigation file for the action against Calabro. The defendants turned over the file to Blados on that day. Blados claims that Calabro did not make any other payments as required under the stipulation of settlement. The plaintiff claims that by the defendants being paid 20% on the total settlement amount rather than the amount collected they "impliedly entered into (therefore) an agreement to continue to represent them until such time as the entire principal balance was collected." The plaintiff claims that "malpractice was committed on an ongoing day to day basis by this firm, as well as its successors" by their failure to represent Blados until the entire sum was collected under the settlement agreement.
To succeed on a motion to dismiss pursuant to CPLR 3211 for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, plaintiff can succeed upon any reasonable view of the facts stated (Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 754 N.E.2d 184, 729 N.Y.S.2d 425 [2001]; see also Fowler, Rodriguez, Kingsmill, Flint, Gray & Chalos LLP v. Island Prop., LLC, 307 A.D.2d 953, 763 N.Y.S.2d 481 [2d Dept 2003], Bartlett v. Konner, 228 A.D.2d 532, 644 N.Y.S.2d 550 [2d Dept 1996]). If the pleading states a cause of action and if, from its four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail (see Wayne S. v. County of Nassau Dept. of Social Services, 83 A.D.2d 628, 441 N.Y.S.2d 536 [2d Dept 1981]). The documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see Estate of Menon v. Menon, 303 A.D.2d 622, 756 N.Y.S.2d 639 [ 2d Dept 2003], citing Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511, Roth v. Goldman, 254 A.D.2d 405, 406, 679 N.Y.S.2d 92).
In the context of a CPLR 3211 motion to dismiss, the Court must take the factual allegations of the complaint as true, consider the affidavits submitted on the motion only for the limited purpose of determining whether the plaintiff has stated a claim, and in the absence of proof that an alleged material fact is untrue or beyond significant dispute, the Court must not dismiss the complaint (Wall Street Assocs. v. Brodsky, 257 A.D.2d 526, 684 N.Y.S.2d 244 [1sl Dept 1999], citing Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634-636). In making a determination whether the complaint sets forth a cognizable claim, evidentiary material may be considered to "remedy defects in the complaint" (see Dana v. Shopping Time Corp., 76 A.D.3d 992, 908 N.Y.S.2d 114 [2d Dept 2010], quoting Rovello v. Orofino Realty Co., supra at 40 N.Y.2d at 636).
In Conklin v Owen, 72 A.D.3d 1006, 1007 [2nd Dept 2010], the Court held that
the Supreme Court should have granted those branches of the defendants' motion which were for summary judgment dismissing the plaintiffs second cause of action to recover damages for breach of contract and third cause of action to recover damages for negligent representation, since these causes of action arise from the same facts as his legal malpractice cause of action and are duplicative of that cause of
action (see Sitar v Sitar, 50 A.D.3d 667, 670, 854 N.Y.S.2d 536 [2008;; Shivers v Siegel, 11 A.D.3d 447, 782 N.Y.S.2d 752 [2004;; Malarkey v Piel, 7 A.D.3d 681, 776 N.Y.S.2d 845 [2004;; Mecca v Shang, 258 A.D.2d 569, 685 N.Y.S.2d 458 [1999]).
Similarly, in Stuart v Robert L. Folks & Assoc, LLP, 106 A.D.3d 808, 809 [2nd Dept 2013], the Court held that the Supreme Court properly directed the dismissal of the breach of contract cause of action because it was duplicative of the legal malpractice cause of action.
The Court concludes that, the fourth cause of action for breach of contract and the third and fifth causes of action for breach of fiduciary duty are duplicative of the first and second causes of action for legal malpractice. Therefore the defendantss motion to dismiss the third, fourth and fifth causes of action for breach of contract and breach of fiduciary duty is granted.
In Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 A.D.3d 803, 803 [2d Dept 2017], the Court held that
Actions to recover damages for malpractice against nonmedical professionals are governed by the three-year statute of limitations set forth in CPLR 214 (6) (see Matter of R.M. Kliment & Frances Halsban, Architects [McKinsey & Co., Inc.], 3 N.Y.3d 538, 539, 821 N.E.2d 952, 788 N.Y.S.2d 648 [2004]; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 A.D.3d 704, 705, 893 N.Y.S.2d 174 [2010]). A cause of action alleging professional malpractice against an accountant accrues upon the client's receipt of the accountant's work product (see Williamson v Pricewaterhouse Coopers LLP, 9 N.Y.3d 1, 8, 872 N.E.2d 842, 840 N.Y.S.2d 730 [2007]; Ackerman v Price Waterhouse, 84 N.Y.2d 535, 54, 644 N.E.2d 1009, 620 N.Y.S.2d 318 [1994]; CRC Litig. Trust v. Marcum, LLP, 132 A.D.3d 938, 939, 19 N.Y.S.3d 291 [2015]; Rodeo Family Enters, LLC v Matte, 99 A.D.3d 781, 783, 952 N.Y.S.2d 581 [2012]) The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the plaintiff Madeleine E. Schwartz (hereinafter the plaintiff) by demonstrating that the professional malpractice causes of action accrued more than three years prior to the commencement of the action (see Meredith v Siben & Siben, LLP, 130 A.D.3d 791, 792, 13 N.Y.S.3d 520 [2015]; Farage v Ehrenberg, 124 A.D.3d 159, 164, 996 N.Y.S.2d 646 [2014]; Napoli v Moisan Architects, 77 A.D.3d 895, 895-896, 909 N.Y.S.2d 389 [2010]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation
doctrine (see Rodeo Family Enters, LLC v Matte, 99 A.D.3d at 784; M.G. McLaren, P.C. v Massand Eng'g, L.S., P.C., 51 A.D.3d 878, 878, 858 N.Y.S.2d 340 [2008]; Giarratano v Silver, 46 A.D.3d 1053, 1055, 847 N.Y.S.2d 698 [2007]; Booth v Kriegel, 36 A.D.3d 312, 314, 825 N.Y.S.2d 193 [2006]; Mitschele v Schultz, 36 A.D.3d 249, 253, 826 N.Y.S.2d 14 [2006]).
The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading on a CPLR 3211 (a) (5) motion to dismiss (see, Guggenheimer v Ginzburg, 43 N.Y.2d 268), the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint of the plaintiff by demonstrating that the professional malpractice causes of action accrued more than three years prior to the commencement of the action. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine. Therefore the defendants' motion to dismiss the first and second causes of action for legal malpractice is granted.
The foregoing constitutes the decision and Order of this Court.