Opinion
Index 618469/2018
03-04-2019
LUIGI MADDALON, Plaintiff, v. ROBERT J. DEL COL, ESQ., Defendant. Mot.Seq. No. 01-MotD
ANDREW LAVOOTT BLUESTOEE Attorney for Plaintiff WOOLWORTH BUILDING ROBERT J. DEL COL, ESQ. Defendant Pro Se
Unpublished Opinion
MOTION DATE 10-12-18
SUBMIT DATE 1-17-19
ANDREW LAVOOTT BLUESTOEE
Attorney for Plaintiff
WOOLWORTH BUILDING
ROBERT J. DEL COL, ESQ.
Defendant Pro Se
PRESENT: Hon JOSEPH A. SANTORELLI Judge
HON. JOSEPH A. SANTORELLI J.S.C
Upon the following papers numbered 1 to 36 read on this motion to dismiss: Notice of Motion/ Order to Show Cause and supporting papers 1 - 13; Notice of Cross Motion and supporting Papers __Answering Affidavits and supporting papers 14-25; Replying Affidavits and supporting papers 26 -36; Other_, (and after hearing counsel in "support and opposed to me motion) it is, In this action to recover damages, inter alia, for legal malpractice the defendant moves an order pursuant to CPLR 3211(a) 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.
On March 16 2011 the plaintiff retained the defendant to represent him in a pending matrimonial action In 2011 the plaintiff asked the defendant to draft an amendment to his 1988 post nuptial agreement. The defendant drafted the requested amendment and forwarded it to the plaintiff The plaintiff claims that the defendant advised him to give the amendment to his wife, non-party Laura Maddaloni, who was represented at the time by Philip Castrovinci, Esq. Laura Maddaloni signed the amendment and then subsequently moved to vacate it during the course of the matrimonial trial The trial decision, dated February 6, 2014, (MacKenzie, J.), invalidated the amendment based upon overreaching on the part of the plaintiff and for lack of consideration, among other reasoning The Judgment of Divorce was signed on May 19, 2014, (MacKenzie, J.). In March 2015 the plaintiff retained new counsel to file an appeal. The plaintiff indicates that the defendant continued to represent him on the matrimonial action until February 16, 2016 when he filed a reply affirmation on that action. This action was commenced for legal malpractice, breach of contract and breach of fiduciary duty on September 21, 2018.
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 [1st Dept 1999], citing Guggenheimer v Ginzburg, 43 N.Y.2d 268, 27; 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 causes of action for breach of contract and breach of fiduciary duty are duplicative of the cause of action for legal malpractice. Therefore the defendant's motion to dismiss the causes of action for breach of contract and breach of fiduciary duty is granted.
In Schwarzz 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 professionass are governed by the three-year statute of limitations set' forth in CPLR 214 (6) (see Matter of EM. Kliment & Frances Halsband, 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 PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 8", 872 N.E.2d 842, 840 N.Y.S.2d 730 [2007]; Ackermnn v. Price Waterhouse, 84 N.Y.2d 535, 541, 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 3.89 [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 defendant has not established his prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the legal malpractice cause of action accrued more than three years prior to the commencement of the action. Therefore the defendantss motion to dismiss the cause of action for legal malpractice is denied; and it is
ORDERED that a copy of this order shall be served by the plaintiff on the defendant by regular mail on or before March 18, 2019; and it is further
ORDERED that the defendant shall serve his answer within twenty (20)days from service of a copy of this order; and it is further.
ORDERED that a preliminary conference is hereby scheduled to be held on Thursday, Aprll 25, 2019 at 10:00 a.m., in the DCM courtroom 338 of the Hon. Alan D. Oshrin Supreme Court Building, I Court Street, Riverhead, New York. Counsel for the respective parties in this action are directed to appear at that time.
The foregoing constitutes the decision and Order of this Court.