Opinion
03-15-2016
LITTLE REST TWELVE, INC., Plaintiff, v. Nina ZAJIC, et al., Defendants. Nina Zajic, et al., Third Party–Plaintiffs–Appellants, v. Martin Russo, et al., Third Party–Defendants–Respondents.
Sternik & Zeltser, New York (Emanuel Zeltser of counsel), for appellants. Gusrae Kaplan Nusbaum PLLC, New York (Martin P. Russo of counsel), for respondents.
Sternik & Zeltser, New York (Emanuel Zeltser of counsel), for appellants.
Gusrae Kaplan Nusbaum PLLC, New York (Martin P. Russo of counsel), for respondents.
SWEENY, J.P., RICHTER, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 11, 2014, which, to the extent appealed from, granted third-party defendants' motion to dismiss the third-party complaint with prejudice, and declined to disqualify third-party defendants as plaintiff's counsel, unanimously modified, on the law, to make the dismissal without prejudice, and otherwise affirmed, without costs.
As discussed below, the motion to dismiss the third-party complaint was correctly granted. However, since it is based on a failure to state a cause of action, the dismissal should be without prejudice to apply upon a proper showing for leave to plead again (Morpheus Capital Advisors LLC v., USB AG, 105 A.D.3d 145, 154, 962 N.Y.S.2d 82 [1st Dept.2013], revd. on other grounds 23 N.Y.3d 528, 992 N.Y.S.2d 178, 15 N.E.3d 1187 [2014] ).
Third-party plaintiffs fail to allege a duty owed them by third-party defendants that would support a claim for contribution or indemnification (see Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [1997] ; Garrett v. Holiday Inns, 86 A.D.2d 469, 471, 450 N.Y.S.2d 619 [4th Dept.982], mod. on other grounds 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983] ).
In support of the claim alleging a violation of Judiciary Law § 487, the third-party complaint contains no nonconclusory allegations that the alleged misconduct was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 217, 371 N.Y.S.2d 884, 333 N.E.2d 163 [1975] ) "greater in scope than the issues determined in the prior proceeding" (Specialized Indus. Servs. Corp. v. Carter, 68 A.D.3d 750, 752, 890 N.Y.S.2d 90 [2d Dept.2009] [internal quotation marks omitted] ). Thus, the claim is not properly asserted in this action but would be appropriately raised in the still pending underlying action, where the alleged misconduct occurred (see Seldon v. Spinnell, 95 A.D.3d 779, 945 N.Y.S.2d 666 [1st Dept.2012], lv. denied 20 N.Y.3d 857, 2013 WL 149767 [2013] ; Melnitzky v. Owen, 19 A.D.3d 201, 796 N.Y.S.2d 612 [1st Dept.2005] ).
In support of the fraud claim, the third-party complaint fails to allege specific facts demonstrating which statements or filings were knowingly and materially false, and fails to identify misrepresentations actually made by third-party defendants (see Barbarito v. Zahavi, 107 A.D.3d 416, 419, 968 N.Y.S.2d 422 [1st Dept.2013] ). Nor does it allege justifiable reliance (see Lemle v. Lemle, 92 A.D.3d 494, 499, 939 N.Y.S.2d 15 [1st Dept. 2012] ). The claim of aiding and abetting fraud fails to allege an underlying fraud (see Stanfield Offshore Leveraged Assets, Ltd. v. Metropolitan Life Ins. Co., 64 A.D.3d 472, 476, 883 N.Y.S.2d 486 [1st Dept.2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379028 [2009] ).
Since the third-party complaint does not allege that third-party defendants, as plaintiff's attorneys, acted outside the scope of their authority as plaintiff's agents, it fails to state a cause of action for tortious interference with contract (see Burger v. Brookhaven Med. Arts Bldg., 131 A.D.2d 622, 623–624, 516 N.Y.S.2d 705 [2d Dept 1987] ; Kartiganer Assoc. v. Town of New Windsor, 108 A.D.2d 898, 899, 485 N.Y.S.2d 782 [2d Dept.1985], appeal dismissed 65 N.Y.2d 925 [1985] ). The third-party complaint also fails to identify the particular provision of the contract allegedly breached (see Williams v. Citigroup, Inc., 104 A.D.3d 521, 962 N.Y.S.2d 96 [1st Dept.2013] ).
In support of the assault and battery claims, third-party plaintiffs fail to allege that they themselves were either assaulted or battered by third-party defendants.
Under the circumstances of this case, and in view of its conclusion that the third-party complaint is "patently defective," the court properly declined to disqualify third-party defendants as plaintiff's counsel.
We have considered third-party plaintiffs' remaining contentions and find them unavailing.