Feldman v. Hodgson Russ LLP

Full title: DORON FELDMAN and DEBORAH ANN FELDMAN, Plaintiffs, v. HODGSON RUSS LLP and…

Court: Supreme Court, Monroe County

Date published: Feb 5, 2021

2021 N.Y. Slip Op. 33369 (N.Y. Sup. Ct. 2021)

Opinion

Index No. E2018000956

02-05-2021

DORON FELDMAN and DEBORAH ANN FELDMAN, Plaintiffs, v. HODGSON RUSS LLP and DANIEL C. OLIVERIO, ESQ., Defendants.

Kenneth J. Zoldan, Esq. for Plaintiffs Michael A. Brady, Esq. for Defendants

Honorable William K. Taylor Supreme Court Justice

Unpublished Opinion

Special Term February 4, 2021

Kenneth J. Zoldan, Esq. for Plaintiffs

Michael A. Brady, Esq. for Defendants

DECISION AND ORDER

Honorable William K. Taylor Supreme Court Justice

Doron Feldman entered guilty pleas in federal district court to conspiring to commit mail fraud and filing a false income tax return. The convictions have not been challenged or vacated. Mr. Feldman and his wife, Deborah Feldman ("Plaintiffs"), commenced the instant legal malpractice action against Doron Feldman's criminal defense counsel, Hodgson Russ LLP and Daniel Oliverio, Esq. ("Defendants"). Plaintiffs' claims allege Defendants' plea negotiations breached the duty of care owed to them in that Defendants should have sought pre-approval from the federal government that his seized monies would be applied to the restitution amount owed, and that the failure to do so left them subject to the federal government's post-sentencing attempt to seize and forfeit a retirement account. Defendants now move to dismiss the amended complaint pursuant to CPLR 3211(a)(1) and (7); Plaintiffs oppose the motion. For the reasons that follow Defendants' motion to dismiss the amended complaint is GRANTED in its entirety.

A prima facie case for legal malpractice requires a duty owed by an attorney to their client, a breach of that duty, and actual damages proximately caused by the breach. See e.g., Global Business Institute v Rivkin Radler LLP, 101 A.D.3d 651 (1^st Dept 2012). Legal malpractice claims arising out of representation in criminal proceedings bear a unique burden: a so-called "actual innocence" requirement. "To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense...for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie." Carmel v Lunney, 70 N.Y.2d 169, 173 (1987). Put simply, where a "plaintiff is precluded by his Federal conviction from pleading and proving his innocence in [a subsequent civil action he] is unable to state a cause of action for legal malpractice." Scanio v Palmiere & Pellegrino, P.C., 251 A.D.2d 1018 (4^th Dept 1998).

Defendants seek dismissal of the amended complaint pursuant to CPLR 3211(a)(1). "A motion to dismiss a complaint based on documentary evidence 'may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'" Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 (2d Dept 2019). Judicial records are appropriately considered as documentary evidence on such a motion. See e.g., Fontanetta v John Doe 1, 73 A.D.3d 78, 85 (2d Dept 2010)("[I]t is clear that judicial records...would qualify as 'documentary evidence' in the proper case.").

Here, Defendants have submitted unambiguous documentary evidence in the form of judicial records conclusively establishing that Plaintiff Doron Feldman's federal convictions have gone unchallenged and remain undisturbed.¹ As such, Plaintiffs are "unable to state a cause of action for legal malpractice." Scanio v Palmiere & Pellegrino, P.C., 251 A.D.2d 1018 (4^th Dept 1998). Plaintiffs arguments in opposition are unavailing. Specifically, Plaintiffs rely on Sehgal v DiRaimondo, 165 A.D.3d 435 (1^st Dept 2018) to suggest that where the malpractice claim does not dispute the validity of the underlying conviction there is no requirement to establish actual innocence. But as Defendants correctly observe in reply, the First Department in Sehgal affirmed dismissal of plaintiff's legal malpractice claim to the extent it concerned advice in connection with his guilty plea or otherwise arising out of the criminal proceeding.

1 See Doc. No 13, Feldman First Plea Agreement 6 24 14; Doc. No. 14, Transcript of Plea Colloquy on 6 24 14; Doc. No. 15, Feldman Second and Separate Plea Agreement 2 18 15; Doc. No. 16, Transcript of Plea Colloquy and sentencing 2 18 15; Doc. No. 19, Second Circuit decision dated 9 17 19, p 3, n2 ("Feldman has not sought to withdraw his plea.").

The crux of Plaintiffs' present complaints centers upon Defendants' claimed deficiencies arising from his plea negotiations. Malpractice claims based on defense counsel's failure to contest post-judgment lien's are appropriately subject to dismissal. See e.g., Kline v Talkin, Muccigrosso and Roberts, L.L.P., 10-2775-cv (2d Cir 2011). And Carmel's actual innocence requirement extends to claims concerning sentencing matters. See e.g., Rosado v Legal Aid Society, 12 A.D.3d 356, 357 (2d Dept 2004); Biegen v Paul K. Rooney, P.C., 269 A.D.2d 264, 265 (1^st Dept 2000). Thus, "so long as the determination of his guilt...remains undisturbed, no cause of action will lie." Carmel, 70 N.Y.2d at 173.

Simply put, the actual innocence "requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding." Britt v Legal Aid Society, 95 N.Y.2d 443, 446 (2000)(Wesley, J.). Such is the case here - Plaintiff Doran Feldman has failed to free himself from the underlying conviction and his present claims arising from that criminal proceeding "could not accrue while plaintiff's conviction remain[s] a jural fact." Id. at 448. Thus, Defendants' motion to dismiss the amended complaint pursuant to CPLR 3211(a)(1) as it concerns Plaintiff Doran Feldman's legal malpractice claim is GRANTED.

Dismissal is likewise warranted as to Plaintiff Deborah Feldman's legal malpractice claims. Contrary to Plaintiffs' arguments, Mrs. Feldman's malpractice claims arise from Defendants' representations of her husband during his criminal proceeding. Such a derivitave claim is appropriately dismissed where her husband's convictions remain undisturbed. See e.g., Sash v Rosahn, 2011 WL 6091571 *1 (2d Cir 2011).

Even assuming arguendo that Plaintiff Deborah Feldman's malpractice claim is not derivitave, Defendants' motion to dismiss her cause of action for failure to state a claim pursuant to CPLR 3211(a)(7) is GRANTED. "A legal malpractice claim requires the existence of an attorney-client relationship." Arnold v Devane, 123 A.D.3d 1202, 1203 (3d Dept 2014). A complaint's failure to allege an attorney-client relationship is fatal to a legal malpractice claim. Id. And on a motion under CPLR 3211(a)(7) this Court "must give the complaint a liberal construction, accept the allegations as true and provide plaintiff[] with the benefit of every favorable inference..." Tower Broadcasting, LLC v Equinox Broadcasting Corp., 160 A.D.3d 1435 (4^th Dept 2018). Applying those standards here, Plaintiff Deborah Feldman's failure to allege in the amended complaint that she had an attorney-client relationship with Defendants warrants dismissal of her malpractice claim. This failing means that she has not stated a claim, and Plaintiffs' arguments to the contrary are without merit.

Accordingly, it is hereby ORDERED that Defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint is hereby GRANTED in its entirety and the amended complaint is DISMISSED. Any arguments or prayers for relief not specifically addressed herein are DENIED.

This constitutes the Decision and Order of the Court.