Opinion
2015–08349 Index No. 4444/12
03-21-2018
John EHRENKRANZ, et al., plaintiffs, v. 58 MHR, LLC, et al., defendants third-party plaintiffs-appellants, et al., defendant; Martin Anderson, et al., third-party defendants, LePatner & Associates, LLP, third-party defendant-respondent.
Sam P. Israel, P.C., New York, N.Y. (Timothy Savitsky of counsel), for defendants third-party plaintiffs-appellants. Housman & Associates, P.C., Tarrytown, N.Y. (Mark Housman of counsel), for third-party defendant-respondent.
Sam P. Israel, P.C., New York, N.Y. (Timothy Savitsky of counsel), for defendants third-party plaintiffs-appellants.
Housman & Associates, P.C., Tarrytown, N.Y. (Mark Housman of counsel), for third-party defendant-respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, BETSY BARROS, JJ.
DECISION & ORDER
Appeal from an order of the Supreme Court, Suffolk County (Emily Pines, J.), dated May 27, 2015. The order, insofar as appealed from, granted that branch of the motion of the third-party defendant LePatner & Associates, LLP, which was pursuant to CPLR 3211(a) to dismiss the 16th cause of action in the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The underlying facts and procedural history of this case can be found in our decisions and orders in a prior appeal in this action (see Ehrenkranz v. 58 MHR, LLC, 127 A.D.3d 918, 6 N.Y.S.3d 649 ), and two appeals in a related action (see Vivir of L I, Inc. v. Ehrenkranz, 145 A.D.3d 834, 43 N.Y.S.3d 435 ; Vivir of L I, Inc. v. Ehrenkranz, 127 A.D.3d 962, 7 N.Y.S.3d 411 ). Here, the third-party plaintiffs alleged in the 16th cause of action in the third-party complaint that the third-party defendant LePatner & Associates, LLP (hereinafter LePatner), a law firm, violated Judiciary Law § 487 in connection with its representation of John Ehrenkranz and Andra Ehrenkranz in this action and the related action. LePatner moved, inter alia, pursuant to CPLR 3211(a) to dismiss the 16th cause of action in the third-party complaint based upon documentary evidence and for failure to state a cause of action. The Supreme Court granted that branch of the motion. The third-party plaintiffs appeal.
The Supreme Court properly granted that branch of LePatner's motion which was to dismiss the 16th cause of action in the third-party complaint, although the dismissal should have been pursuant to CPLR 3211(a)(7) and not CPLR 3211(a)(1) (see Smalls v. St. John's Episcopal Hosp., 152 A.D.3d 629, 58 N.Y.S.3d 536 ). Accepting the facts alleged in the third-party complaint as true, and according the third-party plaintiffs the benefit of every favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Raach v. SLSJET Mgt. Corp., 134 A.D.3d 792, 793, 20 N.Y.S.3d 613 ), the third-party complaint failed to allege facts sufficient to find that LePatner acted "with intent to deceive the court or any party" ( Judiciary Law § 487 ; see Klein v. Rieff, 135 A.D.3d 910, 24 N.Y.S.3d 364 ; Savitt v. Greenberg Traurig, LLP, 126 A.D.3d 506, 5 N.Y.S.3d 415 ; Fleyshman v. Suckle & Schlesinger, PLLC, 91 A.D.3d 591, 592–593, 937 N.Y.S.2d 92 ). The third-party plaintiffs' remaining contentions are not properly before this Court.
DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.