Opinion
112337/07.
May 17, 2010.
By decision and order dated July 7, 2009 (the Prior Order), this court disposed of certain claims asserted by plaintiff Vladimira Koch (Plaintiff) against her former counsel who represented her in the divorce action commenced by her former husband Robert Koch, as well as certain claims asserted by Plaintiff against Robert Koch's former counsel. The former counsel for Plaintiff are David Aronson and his law firm Sheresky, Aronson Mayefesky LLP (the Aronson Defendants); Raymond A. Bragar and his law firm Bragar, Wexler, Eagel Morgenstern, P.C. (the Bragar Defendants); and Raymond Ragues and his law firm Ragues Min (the Ragues Defendants). The former counsel for Robert Koch is Frank J. Salvi and his law firm D'Agostino Salvi, LLP (the Salvi Defendants). The background leading to the commencement of this legal malpractice action was fully discussed in the Prior Order. Accordingly, familiarity with such background information is presumed and will not be repeated, except as discussed herein, where appropriate.
The Prior Order also dismissed all claims asserted by Plaintiff's son (Michael Koch), and the named corporate entities in which Plaintiff allegedly has ownership interests, because they have no contractual or implied privity with the defendants.
Subsequent to the entry of the Prior Order, the Bragar Defendants move to dismiss certain claims as asserted against them (motion sequence number 006), and Plaintiff moves to dismiss certain affirmative defenses and/or counterclaims (as the case may be) asserted in the answers of the Bragar Defendants, Aronson Defendants and Ragues Defendants (motion sequence numbers 007-010). These motions are consolidated herein for disposition.
Motion Sequence Number 006
In their motion, the Bragar Defendants seek dismissal of the causes of action asserted in Plaintiff's complaint sounding in fraud and misrepresentation (first, second, third and seventh), as well as violation of Judiciary Law § 487 (eighteenth). They argue that dismissal is warranted because of (a) "the law of the case" doctrine, (b) the redundancy of such claims, or (c) the lack of requisite specificity with respect to the fraud claims.
Relying on the "the law of the case" doctrine, the Bragar Defendants argue that certain claims against them should be dismissed because similar claims were dismissed as to the Aronson Defendants. Pursuant to the Prior Order, the Aronson Defendants' request to dismiss the legal malpractice claims was denied, but their request to dismiss the alleged fraud or misrepresentation and violation of Judiciary Law § 487 claims was granted, because this court found that the alleged facts with respect to the fraud or misrepresentation and § 487 claims are basically the same as for the legal malpractice claims. The Bragar Defendants' reliance on such doctrine is misplaced.
In People v Evans ( 94 NY2d 499), the Court of Appeals noted that, while "the law of the case" phrase appeared in New York's decisional law over the years, "it has not always meant the same thing [citations omitted]." Id. at 503. The Court cautioned that the law of the case doctrine, when applied in a criminal trial, "does not contemplate that every trial ruling is binding on retrial," and that "distinctions must be made," particularly with respect to evidentiary rulings, which "will normally not be binding in a subsequent trial." Id. at 504-505. More recently, in the Matter of Liquidation of Midland Ins. Co. ( 71 AD3d 221 [1st Dept 2010]), the Appellate Division, First Department, added that, under this doctrine, "parties and their privies are precluded from relitigating an issue decided in an ongoing proceeding where there previously was a full and fair opportunity to address the issue" and that "[p]rivity is established where the interests of the nonparty can be said to have been represented in the prior proceedings." Id. at 225.
Here, the Bragar Defendants neither argue that they are "in privity" with the Aronson Defendants, nor do they argue that their interests were/are represented by the Aronson Defendants. Thus, the law of the case doctrine does not apply, particularly where the factual allegations against the Aronson Defendants are different from those against the Bragar Defendants. For example, with respect to the first cause of action (misrepresentation or fraud in the inducement), the allegation, as against the Bragar Defendants only, stems from their alleged failure to disclose to Plaintiff that they did not practice matrimonial law. Plaintiff Opposition Brief, at 2. No such allegation was made against the Aronson Defendants. Further, contrary to the contention that the fraud claim is insufficiently pled, the complaint alleges that, to cover up the alleged fraud or misrepresentation, the Bragar Defendants sub-retained the Aronson Defendants' aid without Plaintiff's consent or knowledge, and that Plaintiff relied on the alleged fraud or misrepresentation to her detriment. Thus, the complaint adequately states a fraud claim against the Bragar Defendants. However, this fraud claim is duplicative of the negligent misrepresentation claim (second cause of action), as both claims are based upon the same factual allegations and seek identical damages. This was implicitly conceded by Plaintiff. Plaintiff Opposition Brief, at 2 ("Negligent misrepresentation, from the same circumstances [as the fraud claim.]"). Hence, the second cause of action should be dismissed. Iannucci v Kucker Bruh, LLP, 42 AD3d 436, 437 (2d Dept 2007) (dismissed negligent misrepresentation claim as it arose from the same facts and did not allege distinct damages from the fraud claim).
Moreover, the third cause of action (misrepresentation or fraud in the inducement) is duplicative of the fourth cause of action (legal malpractice), as both allege that the Bragar Defendants failed to advise Plaintiff as to her options to contest personal or subject matter jurisdiction issues in the underlying divorce action. Plaintiff has implicitly conceded this point as well. Plaintiff Opposition Brief, at 2 and 3 (using the same factual allegations and circumstance for both claims). Thus, the third cause of action should be dismissed. See Winegrad v Jacobs, 171 AD2d 525 (1st Dept 1991) (dismissing breach of contract claim as redundant of legal malpractice claim); see also Ambase Corp. v Davis Polk Wardwell, 30 AD3d 171, 172 (1st Dept 2006), affd 8 NY3d 428 (2007) (breach of fiduciary duty claim dismissed as redundant as it was based on same factual allegations as legal malpractice claim).
Furthermore, the seventh cause of action (misrepresentation or fraud in the inducement) is duplicative of the eighth cause of action (negligent misrepresentation), as both allege that the Bragar Defendants failed to advise Plaintiff of the consequences of their withdrawal, as her counsel, from the divorce action. This was also implicitly acknowledged by Plaintiff. Plaintiff Opposition Brief, at 4 ("negligent misrepresentation or legal malpractice, from the same circumstances and from the Defendants' precipitous withdrawal [as the fraud claim]"). Therefore, the seventh cause of action should be dismissed.
With respect to the alleged violation of Judiciary Law § 487 (§ 487 claim), the complaint must plead that the defendant attorney engaged in "a pattern of delinquent, wrongful or deceitful behavior," and that the plaintiff suffered "pecuniary damages resulting from the alleged wrong." Jaroslawicz v Cohen, 12 AD3d 160, 161 (1st Dept 2004). The law provides recourse "only where there is a chronic and extreme pattern of legal delinquency." Solow Mgmt. Corp. v Seltzer, 18 AD3d 399, 400 (1st Dept 2005). In this case, it is alleged that the Bragar Defendants failed to inform Plaintiff that "they were not even primarily handling her matrimonial case but had subretained without her knowledge or consent — the Aronson Defendants is just such an outrageous violation of the standards of conduct Plaintiff was entitled to expect from them. DR 2-107. . . ." Plaintiff Opposition Brief, at 12. This allegation is similar to the fraud claim, which alleges that the Bragar Defendants fraudulently represented to Plaintiff that they practice matrimonial law, and that they sub-retained the Aronson Defendants (who specialize in matrimonial law) without her consent or knowledge. In such regard, the § 487 claim is redundant of the fraud claim.
Plaintiff also alleges that, in seeking court permission to withdraw as her counsel, the Bragar Defendants "prepared a Show-Cause Order that was never served on Plaintiff and contained an outright misrepresentation to the effect that Bragar Wexler had assisted in finding replacement counsel. . . . In fact, however, Plaintiff located Attorney Ragues via her interpreter, Magna Czagany." Plaintiff Opposition Brief, at 13 (attaching a copy of Bragar's Affirmation in Support of Order to Show Cause). Yet, a review of the record reflects the following: (1) by e-mail dated September 30, 2004, Plaintiff indicated to Bragar that she was terminating his services, and asked for the return of her files; (2) by reply e-mail, Bragar stated that he would immediately send her files to the Czech Republic (as she was apparently residing there at the time), and urged her to seek new counsel; (3) in his affirmation, Bragar stated that he had provided Plaintiff with the names of potential new counsel, but as of the date of his affirmation, she had not yet retained new counsel; and (4) in her complaint, it was also stated that the Bragar Defendants had encouraged her to seek less expensive counsel in Westchester (as the divorce action was heard in Westchester County), and that upon "the recommendation of Ms. Czagany, the paid interpreter Mr. Bragar had recommended, Ms. Koch contacted and retained [the Ragues Defendants as new counsel] to continue with her . . . divorce matter." Complaint, ¶¶ 94-95. Based on the foregoing, it does not appear that the Bragar Defendants' alleged misconduct exhibited "a chronic and extreme pattern of legal delinquency." Therefore, the Judiciary Law § 487 claim should be dismissed.
To summarize, the requested relief sought in the Bragar Defendants' motion is granted, except with respect to the dismissal of the first cause of action.
Motion Sequence Number 007
In this motion, Plaintiff seeks to dismiss (1) all eleven affirmative defenses asserted in the answer of the Bragar Defendants or, alternatively, an order directing defendants to clarify their answer and defenses; and (2) all the counterclaims asserted by defendants that are all based on unpaid legal fees and expenses. In the memorandum of law in support of the motion, Plaintiff seeks to specifically dismiss three such defenses (second, eighth and ninth) and all three counterclaims.
The Affirmative Defenses
Notably, the second (statute of limitations) and ninth (lack of personal jurisdiction) affirmative defenses formed the basis of the Bragar Defendants' prior motion to dismiss the complaint. Pursuant to the Prior Order, that motion was denied. In fact, this court found that the record of this case reflected that the defendants were served with the summons and notice promptly after court filing of same, which was done prior to the expiration of the statute of limitations. Thus, the court granted Plaintiff's cross motion, pursuant to CPLR 306-b, deeming the service of process proper and complete nunc pro tunc. Prior Order, at 9-11. In their opposition to this motion, defendants have not pled new facts or argued new law. Instead, they merely stated that they have filed a notice of appeal, which has not yet been perfected. Thus, the second and ninth defenses should be dismissed.
As to the eighth affirmative defense, the Bragar Defendants argue that, because the attorney-client relationship ended on September 30, 2004, any loss or damage after such date for which Plaintiff seeks relief cannot be granted or recovered. However, defendants have not cited any law in support of such argument.
To sustain a legal malpractice claim, a plaintiff must plead and show (1) the attorney's negligence, (2) that the negligence was the proximate cause of plaintiff's loss, and (3) actual damages sustained by plaintiff. Leder v Spiegel, 31 AD3d 266 (1st Dept 2006), affd 9 NY3d 836 (2007), cert denied 552 US 1257 (2008). To establish "proximate cause," a plaintiff must show that "but for" the attorney's negligence, he or she would have prevailed in the underlying matter or would not have sustained damages. Brooks v Lewin, 21 AD3d 731, 734 (1st Dept 2005). However, there is no requirement to show that the damages be simultaneously sustained by a plaintiff (due to the attorney's negligence) for the plaintiff to prevail on the malpractice suit. Yet, the Bragar Defendants argue that, if subsequent counsel failed to adequately pursue certain issues that were previously pursued on Plaintiff's behalf by the Bragar-Aronson Defendants in the divorce action, "this damage was proximately caused by acts which occurred after the Bragar Defendants' termination." Defendants' Opposition, ¶ 50. By the foregoing, the defendants appear to argue that, if subsequent counsel failed to pursue such issues, the defendants should not be liable to Plaintiff for the consequent damages. In the Prior Order, this court found the "subsequent counsel" argument previously raised by the Aronson Defendants unpersuasive, because they did not demonstrate that "subsequent counsel could have cured all such alleged failures and issues, especially the personal jurisdiction issue." Prior Order, at 16-17. While the failure of demonstration on the part of the Aronson Defendants cannot be imputed to the Bragar Defendants, it is undisputed that these co-counsel represented Plaintiff in the divorce action. Also, this affirmative defense is raised by the Bragar Defendants as a hypothetical, without supporting facts. Hence, this defense should be dismissed, but without prejudice to the right to replead after completion of all depositions, if and when subsequent discovery yields favorable facts for the defendants.
As to the remaining eight affirmative defenses, as well as the answer interposed by the Bragar Defendants, Plaintiff argues that she cannot fairly respond to them because they are vague and lacking in detail or factual support. Apparently recognizing that an outright dismissal of all these defenses is not likely, Plaintiff alternatively moves for an order directing the Bragar Defendants to "correct" the defenses and answer, pursuant to CPLR 3024 (a), which provides that "[i]f a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response he may move for a more definite statement."
Plaintiff has cited no caselaw that analyzed the application of CPLR 3024 (a) to answers interposed in response to complaints. However, a noted commentator has observed the following:
Subdivision (a) of CPLR 3024 is the motion for a more definitive statement. It's available only to a party required to respond to the objectionable pleading. It may be used by the defendant against the complaint and by the plaintiff against a counterclaim, for example, but it is unavailable to the plaintiff if the answer contains no counterclaim because in that case the plaintiff doesn't have to respond to the answer. . . . If the pleading is answerable and what the movant is really seeking is an amplification of it, the motion for a more definite statement will be denied and the movant remitted to a bill of particulars.
Siegel, New York Practice, § 230, at 379-380 (4th Ed 2005).
In this case, defendants' answer contains counterclaims, but they are specific and detailed, and do not suffer from the vagueness of the answer. Also, they can be responded to without referring to the answer. Thus, because Plaintiff is not required to respond to the answer, the motion for a more definitive statement, as to the answer, is denied.
As to the affirmative defenses, the Bragar Defendants argue that the CPLR does not require them to provide supporting facts for such defenses, and quoted the following statement from Northway Engineering Inc. v Felix Industries Inc. ( 77 NY2d 332) for support: "The plaintiff had no right to demand particulars concerning the general denial or the specific nature of the defenses they presented." Id. at 337. The defendants' unqualified statement that "Plaintiff is simply not entitled to factual particulars for any of the eleven Affirmative Defenses" is somewhat misleading, if it is meant to imply that under no circumstance is a plaintiff entitled to seek more information as to affirmative defenses, even when such information is sought via a bill of particulars. See Option One Mtge. Corp. v Londono, 24 Misc 3d 1223(A), 2009 NY Slip Op 51562(U) (Sup Ct, Queens County 2009) (directing defendant to serve a bill of particulars and to plead affirmative defenses with reasonably ample particularity); see also Schmidt's Wholesale v Miller Lehman Constr., 173 AD2d 1004, 1004 (3d Dept 1991)("Inasmuch as bills of particulars can be had to amplify a defense, dismissal of defenses with a subsequent requirement of repleading should be frowned upon"). However, Plaintiff has not sought a bill of particulars on the affirmative defenses.
Furthermore, the practice commentaries to this statutory provision indicate that, if the court "in its discretion order the service of a responsive pleading not otherwise required, such as a reply to an affirmative defense contained in an answer having no counterclaim . . . the party so directed should be able to make the CPLR 3024 (a) motion if it can be shown that the pleading requiring the response is not reasonably susceptible of one." McKinney's CPLR 3024 (a), C3024.2. Here, the court has not directed Plaintiff to reply to the affirmative defenses. Thus, Plaintiff is not entitled to relief under CPLR 3024 (a).
The Counterclaims
All three counterclaims are based on the same allegation: unpaid balance of invoices issued by the Bragar Defendants for legal services rendered and disbursements incurred, in the net amount of $42,457.20. The counterclaims sound in breach of contract, quantum meruit, and account stated.
As an initial matter, the quantum meruit and account stated claims should be dismissed because they are redundant of the breach of contract claim. Indeed, the defendants have conceded that the quantum meruit claim is pled (as an alternative) in the event the retainer agreement is found unenforceable, and that their legal invoices were issued pursuant to the retainer agreement. Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388 (1987) (existence of a written contract governing a subject matter precludes the pursuit of quasi-contractual remedies); G.W. White Son v Gosier, 219 AD2d 866, 867 (4th Dept 1995) (an account-stated claim is based on an agreement, independent of the underlying contract, with respect to the amount due on past transactions). Although breach of contract and quantum meruit claims can sometimes be pled in the alternative, in the matrimonial area, quantum meruit cannot be a back door to circumventing the lack of compliance with the applicable laws and rules, if a breach of contract claim cannot be sustained, as discussed below.
Plaintiff argues that, because the Bragar Defendants failed to comply with the laws and rules that govern domestic relations matters (the DRL rules), including, inter alia, the requirement to file a copy of the retainer agreement and the closing statement with the divorce court, the breach of contract/fee claim should be dismissed. Julien v Machson, 245 AD2d 122 (1st Dept 1997) (failure to comply with DRL rules precluded counsel from recovering legal fees). Defendants do not dispute the holding in Julien and similar cases, which cases note that these rules were promulgated to address abuses in the practice of matrimonial law and protect the public. Accordingly, matrimonial cases are looked at quite differently than non-matrimonial cases (see Utility Audit Gp. v Apple Mac R Corp., 59 AD3d 707 (2d Dept 2009) (quantum meruit recovery permitted despite failure to comply with the letter of engagement rule in 22 NYCRR 1215.1). Instead, defendants contend that the dismissal of their claim should not be resolved at the pleading stage, and that they are entitled to discovery on the issue of compliance or "substantial compliance" with the DRL rules. They cite to Gahagan v Gahagan ( 51 AD3d 863 [2d Dept 2008]) (reversing trial court's fixing of a charging lien in favor of counsel and remanded for a hearing to determine the issue of compliance with DRL rules), and Wagman v Wagman ( 8 AD3d 263 [2d Dept 2004]) (reversing trial court's fee order because counsel did not substantially comply with rules), as support. However, defendants have conceded that they had not filed the retainer agreement with the divorce court, as required by the DRL rules. Yet, they contend that there are mitigating circumstances where the court could find substantial compliance.
Defendants' contentions are unpersuasive. In the face of an objection to their fee claim based on applicable law and their non-compliance with the DRL rules, defendants have failed to rebut the non-compliance charge with credible or documentary evidence, such as by producing dockets from the divorce court showing even minimal or general compliance. Therefore, their unsubstantiated "substantial compliance" argument rings hollow. Also, the defendants have failed to explain why discovery is needed when they are the very party (as opposed to Plaintiff) who is required to comply (or show compliance) with the DRL rules. Therefore, all three counterclaims should be dismissed.
Motion Sequence Number 008 15
In this motion, pursuant to CPLR 3211 (b), Plaintiff seeks to dismiss all fourteen affirmative defenses asserted by the Aronson Defendants in their answer, or in the alternative, for an order directing the defendants to correct their pleadings pursuant to CPLR 3024 (a). The Aronson Defendants oppose the relief sought in Plaintiff's motion in all respects.
In their answer, which does not have any counterclaims (and was served after this court's issuance of the Prior Order), the affirmative defenses raised by the Aronson Defendants include, among others: the complaint fails to state a cause of action; defendants acted in good faith and without malice; statute of limitations; laches, waiver and/or estoppel; Plaintiff's failure to mitigate damages; negligence of a third party over whom defendants have no control; Plaintiff's unclean hands; and reservation of rights to assert additional defenses.
Because their answer does not contain any counterclaims, the Aronson Defendants argue that they do not have to particularize the answer. As to the affirmative defenses raised in the answer, they argue that these defenses preserve their right to present evidence on the issue raised by such defenses. Defendants' Opposition Brief, at 6. They also argue that the "law of the case" doctrine (as asserted by Plaintiff), when applied in the context of the Prior Order's rulings on the issues raised in their previous motion seeking dismissal of Plaintiff's complaint, does not mean that the court has substantively decided the merits of Plaintiff's various claims, but that the court only determined that the complaint adequately alleges a legal malpractice claim. Id. at 8. They further argue that a motion to dismiss an answer for lack of particularity is not favored by the courts, because a plaintiff can obtain amplified bases for the asserted affirmative defenses via a bill of particulars. Id. at 9.
Except with respect to the third affirmative defense (statute of limitations), which should be dismissed based on the ruling in the Prior Order that is applicable to the Aronson and Bragar Defendants (as discussed above), the defendants' arguments are persuasive, even though the remaining defenses are generic or even conclusory in nature, and are generally unsupported by the facts (if any) pled in their answer, which, in turn, consists mostly of general denials of the complaint's allegations. In light of the foregoing discussions with respect to CPLR 3024 (a), Plaintiff's request for an order directing the Aronson Defendants to "correct" their affirmative defenses should be denied. See e.g. Schmidt's Wholesale, 173 AD2d 1004, supra; Option One Mtge. Corp., 24 Misc 3d 1223(A), supra.
Motion Sequence Number 009
By this motion, Plaintiff seeks to dismiss all sixteen affirmative defenses asserted by the Salvi Defendants in their answer pursuant to CPLR 3211 (b), or in the alternative, for an order directing them to correct their pleadings pursuant to CPLR 3024 (a). The answer of the Salvi Defendants was filed after the entry of the Prior Order, which dismissed all claims (except the § 487 claim) against them. In response to the instant motion, other than the fifteenth affirmative defense (statute of limitations), which they agreed to withdraw, the Salvi Defendants oppose the reliefs sought in Plaintiff's motion in all respects.
The affirmative defenses asserted by the defendants include, inter alia: the complaint fails to state a cause of action, fails to join all necessary parties, and fails to establish that defendants' conduct fell below the standard of care; defendants exercised due care and diligence and did not owe a special duty to Plaintiff; waiver, estoppel and unclean hands; damages caused by third persons over which defendants have no control; actions of defendants were ratified by Plaintiff; Plaintiff failed to mitigate damages; documentary evidence contradicts factual allegations; and reservation of rights to assert more defenses.
Plaintiff argues that the first affirmative defense (failure to state a cause of action) should be dismissed because the Prior Order dismissed all claims against the Salvi Defendants, except for the § 487 claim, the sole remaining claim that the court has determined is sufficiently pled. In response, defendants contend that this defense should not be stricken because caselaw permits such defense. Indeed, in Riland v Todman Co. ( 56 AD2d 350 [1st Dept 1977]), the Appellate Division, First Department, stated that the defense of failure to state a cause of action, even though it is a surplusage, may be asserted at any time even if not pleaded, and that in the absence of prejudice, there is no reason to permit a motion to strike the defense. Id., at 352. Accord Bernstein v Freudman, 136 AD2d 490, 492-493 (1st Dept 1988); see also Butler v Catinella, 58 AD3d 145, 150 (2d Dept 2008). Here, Plaintiff has failed to show any prejudice in permitting this defense to remain. Hence, this defense should not be dismissed at this time.
As to the bulk of the remaining defenses, the defendants argue that dismissal is improper because it is unknown, at the present time, whether Plaintiff's own conduct or that of third parties, might have caused or contributed to the damages alleged suffered by Plaintiff (if any), and that discovery is needed to ascertain the facts and substantiate such defenses. Id. at 6-8. In light of the foregoing discussions pertaining to CPLR 3024 (a), these defenses shall not be stricken. Hence, Plaintiff's request to strike such defenses, or alternatively for an order directing the defendants to amplify the affirmative defenses, is denied. Accordingly, except with respect to the first affirmative defense, the dismissal of which is granted pursuant to CPLR 3211 (b), and fifteenth affirmative defense which the Salvi Defendants agreed to withdraw, the remainder of Plaintiff's motion is denied.
Motion Sequence Number 010
In this motion, Plaintiff seeks an order (1) dismissing certain affirmative defenses (first through fourth, and eighth through eleventh) raised in the answer of the Ragues Defendants, or (2) directing the defendants to clarify certain defenses. Notably, the Ragues Defendants' answer was filed and served before the Prior Order, and certain of the defenses raised therein were addressed, either directly or indirectly, by the Prior Order. In response to the motion, the defendants do not oppose to the dismissal of their third and eleventh affirmative defenses, but object to the dismissal of their first, second, fourth, eighth, ninth and tenth defenses.
In other words, the fifth through the seventh affirmative defenses have not been addressed by the parties, either in the motion to dismiss or in the opposition to the motion.
The first defense asserts that the complaint fails to state a cause of action. Relying on the ruling in the Prior Order and the law of the case doctrine, Plaintiff argues that this defense is without merit and should be stricken. The doctrine does not apply to the Ragues Defendants, because they have not moved with respect to their defenses and, as explained above, it cannot be said (and Plaintiff does not argue) that they are in privity with the other co-defendants, or that their interest in these proceedings (or in the Prior Order) were/are represented by the other co-defendants.
As to the second defense (only Plaintiff, but not the other named plaintiffs, was in privity with the Ragues Defendants) and the third defense (the legal malpractice action is premature because the underlying divorce action was still pending), the issues relating to these defenses have been decided in the Prior Order, and the rulings therein are unchallenged by the parties, including the Ragues Defendants and Plaintiff. Therefore, the second and third defenses are mooted by the Prior Order and are stricken.
As to the fourth defense (claims are barred by documentary evidence), Plaintiff argues that no facts applicable to any such evidence has been identified or produced by the defendants, and as such, the defense should be dismissed. In opposition, the Ragues Defendants contend that the documents pertinent to their withdrawal as Plaintiff's counsel in the divorce action, and the pleadings interposed by her other counsel (i.e. the Bragar and Aronson Defendants) in the divorce action in which they did not raise jurisdictional defenses, may serve as documentary evidence to support the dismissal of the malpractice claim against them. It is arguable whether the purported "documentary evidence" would conclusively establish that the defendants are not liable to Plaintiff as a matter of law. However, in light of the limited discovery that has been conducted in this matter, Plaintiff's request to dismiss this affirmative defense is premature and should be denied. Humphreys v 201 Mar. Ave., LLC, 17 AD3d 532, 533 (2d Dept 2005) (reversing trial court's decision that struck defendant's affirmative defense, because triable issues of fact existed as to whether plaintiff's claim was validly supported).
As to the eighth defense (intervening acts of third parties not under the control of the Ragues Defendants caused Plaintiff's damages), Plaintiff argues that these defendants failed to sufficiently plead such defense, and that the "wrongful acts" of Robert Koch and his counsel were not so "unforeseeable" as to constitute "intervening acts." Plaintiff's Moving Brief, at 9. In opposition, the defendants contend that such arguments merely raise issues of fact, as to whether the alleged dishonest acts of Robert Koch and his counsel, and the alleged failure of the Bragar and Aronson Defendants to raise jurisdictional defenses in the divorce action, were sufficient to constitute "intervening acts" so as to cut off the liability, if any, of the Ragues Defendants to Plaintiff. These defendants also contend that they clearly did not have control over the acts or omissions of third parties. Because discovery is required to permit these defendants to prove this affirmative defense, dismissal of such defense should not be granted at this time. See Brignoli v Balch, Hardy Scheinman, 178 AD3d 290 (1st Dept 1991) (defendant bears burden of proof on affirmative defense); Humphreys, 17 AD3d 532, supra (disputed issues of fact preclude summary judgment dismissing defense).
As to the ninth defense (failure to mitigate damages) and tenth defense (damages allegedly sustained by Plaintiff were due to her own culpable conduct), Plaintiff argues that she made "extensive efforts" to mitigate damages, as evidenced by, inter alia, her pursuit of the decision of the Westchester Court "finally disposing" of the divorce action after protracted litigation. Plaintiff's Moving Brief, at 10. In opposition, the Ragues Defendants contend, among other things, that Plaintiff allowed her green card to expire, failed to promptly retain new counsel after she terminated them, and failed to comply with the court orders that required her to take certain actions in the divorce action, which demonstrated that she failed to mitigate damages and that her culpable conduct contributed to the damages. Defendants' Opposition Brief, at 11-12. Because of conflicting arguments that focus on different aspects of the divorce action, and because discovery appears necessary to narrow the disputed facts and issues, dismissal of the ninth and tenth affirmative defense is not warranted at the present time.
"The culpable conduct of a plaintiff client in a legal malpractice action may be pleaded by the defendant attorney, by way of affirmative defense, as a mitigating factor in the attorney's negligence" ( Arnav Indus. Inc Retirement Trust v Brown, Raysman, Millstein, Felder Steiner, L.L.P., 96 NY2d 300, 305 n 2 [2001]).
As to the eleventh affirmative defense, it was withdrawn by the Ragues Defendants in its Affirmation In Opposition.
Besides moving for dismissal of the affirmative defenses, Plaintiff alternatively requests an order directing the Ragues Defendants to clarify their defenses pursuant to CPLR 3024 (a). It is noteworthy that Plaintiff has acknowledged that the Ragues Defendants' answer and defenses involved "more than just cut and paste quick-fix techniques employed by the other defendants, but it is still substantially deficient and unclear in most parts." Plaintiff's Moving Brief, at 6. However, plaintiff's request cannot be granted because CPLR 3024 (c) sets forth a 20-day time limit to request such relief,' and Plaintiff's instant motion was served more than 20 days after the Ragues Defendants' answer (containing the challenged affirmative defenses) was served. Furthermore, as discussed above, CPLR 3024 (a) does not apply to affirmative defenses.
Conclusion
In light of all of the foregoing, it is accordingly
ORDERED that the motion to dismiss by Raymond A. Bragar and his law firm Bragar, Wexler, Eagel Morgenstern, P.C. (the Bragar Defendants) (motion sequence number 006) is granted to the extent of dismissing the second, third, seventh and eighteenth causes of action of the complaint, but is denied with respect to the first cause of action; and it is further
ORDERED that plaintiff's motion seeking the dismissal of the affirmative defenses and counterclaims of the Bragar Defendants (motion sequence number 007) is granted to the extent of dismissing the second, eighth and ninth affirmative defenses as well as all counterclaims (but with leave to replead the eighth affirmation defense, if supported, after completion of all depositions), and plaintiff's request for an order directing these defendants to replead the remaining defenses with particularity pursuant to CPLR 3024 (a) is denied; and it is further
ORDERED that plaintiff's motion seeking the dismissal of the affirmative defenses of David Aronson and his law firm Sheresky, Aronson Mayefesky LLP (the Aronson Defendants) (motion sequence number 008) is granted to the extent of dismissing the third affirmative defense, and plaintiff's request for an order directing these defendants to replead their remaining defenses with particularity pursuant to CPLR 3024 (a) is denied; and it is further
ORDERED that plaintiff's motion seeking the dismissal of the affirmative defenses of Frank J. Salvi and his law firm D'Agostino Salvi, LLP (the Salvi Defendants) (motion sequence number 009) is granted to the extent of dismissing the fifteenth affirmative defense, and plaintiff's request for an order directing these defendants to replead the remaining defenses with particularity pursuant to CPLR 3024 (a) is denied; and it is further
ORDERED that plaintiff's motion seeking the dismissal of the affirmative defenses of Raymond Ragues and his law firm Ragues Min (the Ragues Defendants) (motion sequence number 010) is granted to the extent of dismissing the second, third and eleventh affirmative defenses (the eleventh affirmative defense being withdrawn), and plaintiff's request for an order directing the Ragues Defendants to replead their remaining affirmative defenses is denied; and it is further
ORDERED that the remaining matters in this action shall continue.
This constitutes the Decision and Order of this court. Defendants argue that certain claims against them should be dismissed because similar claims were dismissed as to the Aronson Defendants. Pursuant to the Prior Order, the Aronson Defendants' request to dismiss the legal malpractice claims was denied, but their request to dismiss the alleged fraud or misrepresentation and violation of Judiciary Law § 487 claims was granted, because this court found that the alleged facts with respect to the fraud or misrepresentation and § 487 claims are basically the same as for the legal malpractice claims. The Bragar Defendants' reliance on such doctrine is misplaced.
In People v Evans ( 94 NY2d 499), the Court of Appeals noted that, while "the law of the case" phrase appeared in New York's decisional law over the years, "it has not always meant the same thing [citations omitted]." Id. at 503. The Court cautioned that the law of the case doctrine, when applied in a criminal trial, "does not contemplate that every trial ruling is binding on retrial," and that "distinctions must be made," particularly with respect to evidentiary rulings, which "will normally not be binding in a subsequent trial." Id. at 504-505. More recently, in the Matter of Liquidation of Midland Ins. Co. ( 71 AD3d 221 [1st Dept 2010]), the Appellate Division, First Department, added that, under this doctrine, "parties and their privies are precluded from relitigating an issue decided in an ongoing proceeding where there previously was a full and fair