Opinion
INDEX NO. 158043/2019
04-20-2020
DMITRY MARKOV, Plaintiff, v. MICHAEL BARROWS, ESQ., ANTHONY CAPETOLA, ESQ. d/b/a LAW OFFICES OF ANTHONY A. CAPETOLA Defendants.
NYSCEF DOC. NO. 47 PRESENT: HON. MARGARET A. CHAN Justice MOTION DATE 10/30/2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45 were read on this motion to/for DISMISSAL.
In this legal malpractice matter, defendants Michael Barrows, Esq. and Anthony Capetola, Esq. d/b/a Law Offices of Anthony A. Capetola move pursuant to CPLR 3211(a)(1), (7), and (10) to dismiss plaintiff Dmitry Markov's complaint. Plaintiff opposes defendants' motion. BACKGROUND
This action arises out of defendant Michael Barrows, Esq.'s representation of plaintiff Dmitry Markov d/b/a Dmitry Markov Coins & Medals in an underlying action, Markov v Spectrum Group Intern., Inc. (2015 NY Slip Op 30054[U] [Sup Ct, NY County 2015]). Plaintiff retained Barrows to pursue a claim against the seller of a Russian medal, known as a Russian Military Order (the Medal). Plaintiff alleged that at an auction on January 14, 2008, the seller misrepresented that the Medal was encrusted with diamonds, and in reliance thereon, plaintiff purchased the Medal. Plaintiff subsequently learned that the Medal was, in fact, not encrusted with diamonds.
On January 6, 2014, just about six years after the plaintiff purchased the medal, plaintiff commenced an action seeking damages for fraud, among other claims, against defendants "Spectrum Group International Inc., Bowers & Merena Auctions, LLC, Stack's-Bowers Numismatics, LLC, Stack's Bowers Galleries, Christine Karstedt, Vicken Ycgpariañ and John Doe (fictitious name)" (id. at ¶25). Stacks, LLC (Stacks) was added as a defendant on January 24, 2014.
The court in the underlying case dismissed the case against all the defendants as improper parties except Stacks (NYSCEF # 22 - Order dated January 14, 2015, at 7-8). The court held that plaintiff's breach of contract and fraud claims against Stacks were not subject to dismissal, finding that "[d]efendants have not submitted any evidence that would refute Markov's contention of a misrepresentation or of reasonable reliance, as a matter of law" (id. at 6). The Appellate Division, First Department, affirmed (Markov v Spectrum Grp. Int'l Inc., 136 AD3d 413 [1st Dept 2016]).
On June 3, 2016, Stacks moved for summary judgment arguing that the statute of limitations for plaintiff's remaining claims against Stacks had expired. Another Justice of this court granted Stacks' motion and dismissed the amended complaint (NYSCEF # 36, Decision and Order of Hon. Charles E. Ramos dated December 13, 2016). The Appellate Division affirmed on May 3, 2018, noting that the lawsuit was commenced without naming Stacks just days before the statute of limitations expired (NYSCEF # 37).
In the instant matter, plaintiff alleges that Barrows was aware that Stacks was the proper defendant prior to filing the complaint in the underlying action but failed to timely add Stacks as a defendant and negligently relied on CPLR 1024 (NYSCEF # 16 - Complaint, ¶¶ 27-30, 62). Plaintiff also alleges that on December 27, 2013, he informed Barrows by email that Stacks was the proper defendant, but that Barrows failed to amend the complaint as of right, despite the opportunity to do so (id., ¶¶ 31-34).
Plaintiff also alleges that at the time of the malpractice, Barrows was associated with defendant Anthony Capetola, Esq. in the Law Offices of Anthony A. Capetola as either an associate, employee, or partner (id., ¶¶ 6-16). Thus, plaintiff named both Barrows and Capetola as defendants for Barrows' failure to timely add Stacks as a defendant in the underlying action which, according to plaintiff, constitutes legal malpractice (id., ¶¶ 61-65). Plaintiff asserts two additional causes of action under Judiciary Law § 487 and for attorneys' fees (id., ¶¶ 66-73). DISCUSSION
CPLR § 3211(a)(7)It is well settled that when considering a motion to dismiss under CPLR 3211(a)(7), the court must evaluate "whether 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" (African Diaspora Maritime Corp. v Golden Gate Yacht Club, 109 AD3d 204 [1st Dept 2013]). Generally, the court must accept the facts in plaintiff's complaint as being true, and "accord plaintiffs the benefit of every possible favorable inference" (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005] [internal quotations and citations omitted]). "However, factual allegations presumed to be true on a motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evidence" (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 613 [1st Dept 2015] [internal quotation marks, brackets and citations omitted]). Where a defendant submits affidavits and other evidence in support of a motion pursuant to CPLR 3211(a)(7), "the standard morphs from whether the plaintiff has stated a cause of action to whether [he or she] has one" (Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 135 [1st Dept 2014] [internal quotation marks and citation omitted]). Evidentiary materials, including affidavits, warrant dismissal pursuant to CPLR 3211(a)(7) where they conclusively establish that the plaintiff has no cause of action (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).
Legal Malpractice
In order to state a claim for legal malpractice, "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks and citations omitted]). To establish proximate cause, plaintiff must show that "but for" the attorney's conduct, plaintiff would have prevailed in the underlying matter or would not have sustained any ascertainable damages had Defendants exercised due care (Bishop v Maurer, 33 AD3d 497, 498 [1st Dept 2006], affd 9 NY3d 910 [2007]).
Defendants proffer two arguments to dismiss the complaint for failure to state a cause of action: (1) defendant Capetola had no part, and therefore no liability, in the underlying case; and (2) plaintiff failed to plead with sufficient particularity to sustain a claim against Barrows for legal malpractice.
As to defendants' first argument, presuming as true plaintiff's allegation that Barrows was associated with Capetola's firm in January 2014, the time of the alleged malpractice, defendants submit evidence that shows otherwise. In support, Capetola avers that Barrows was a solo practitioner before joining him and the Capetola firm in March 2015, more than one year after the alleged malpractice (NYSCEF # 14 - Capetola aff, ¶ 4). Barrows likewise avers that he had no prior association with Capetola or Capetola's firm prior to March 2015 (NYSCEF # 13 - Barrows aff, ¶ 8). Defendants submit the Capetola Firm's "Application for Lawyers Professional Liability Insurance" for Barrows, dated March 15, 2015, indicating that Barrows joined the Firm on March 2, 2015 (NYSCEF # 44 - Application for Insurance at 1).
Plaintiff's arguments and evidence purporting to show the contrary essentially engages in speculation by dispensing with defendants' evidence. As such, defendants' evidence shows that Barrows was not employed at the Capetola firm at the time of the malpractice. And as there is no allegation of direct liability against Capetola, the branch of defendants' motion to dismiss the complaint for failure to state a claim is granted as against Capetola d/b/a Law Offices of Anthony A. Capetola.
Defendants' second argument is on the sufficiency of the complaint. Defendants point out that while the gravamen of plaintiff's complaint is that defendants failed to timely name Stacks as a defendant in the underlying action, the complaint is devoid of any specific factual allegations that plaintiff would have been successful in the underlying action "but for" defendants' negligence (Magassouba v Cascione, 178 AD3d 509, 509 [1st Dept 2019]; Salans LLP v VBH Properties SRL, 171 AD3d 460, 461 [1st Dept 2019]).
The complaint contains multiple paragraphs on Barrow's failure to timely add Stacks as a defendant in the underlying action. The complaint's only mention that could be framed as an allegation that plaintiff would have been successful but for Barrow's negligence is that the fraud and misrepresentation claims were not dismissed in the order dated January 14, 2015. But even with a generous reading of that "allegation", the success attributable to plaintiff is limited to only that dismissal motion (NYSCEF # 34 at 6). Absent a showing that "but for" the attorney's conduct, plaintiff would have prevailed in the underlying matter, plaintiff's cause of action for legal malpractice against defendant Barrows cannot be sustained.
Defendants urge this court to bar plaintiff from alleging that Barrows was aware that Stacks was the proper defendant prior to the expiration of the statute of limitations in the underlying case because of an admission made by plaintiff. This request is superfluous given the above finding dismissing the legal malpractice claim against Barrows. In any event, it would be denied because the admission was in plaintiff's affidavit, which was prepared at the time Barrows was representing plaintiff (NYSCEF # 21). And the affidavit was contradicted by an email of December 27, 2013, in which plaintiff alerted Barrows to Stack as the proper defendant (NYSCEF # 32).
Defendants' remaining arguments pursuant to CPLR 3211(a)(1) and (10) regarding a retainer agreement and plaintiff's failure to join a necessary party - another attorney who had also represented plaintiff in the underlying case - will not be addressed as academic.
Judiciary Law § 487For his cause of action under Judiciary Law § 487, the only statement plaintiff makes is this: "It is submitted that the allegations of the Complaint, along with the information set forth herein, demonstrate a pattern of conduct in which Defendants purposely and intentionally sought to deceive the Court as well as Plaintiff." (NYSCEF # 26 - (Pltf's atty) Young Aff in Opposition to Motion to Dismiss at 13).
Judiciary Law § 487 speaks to an attorney's deceit or collusion as constituting a misdemeanor and subject to an imposition of treble damages (Judiciary Law § 487[1]). This grievous allegation requires more than one sentence essentially asking the court to make plaintiff's argument on his behalf. It certainly does not state with particularity any acts of deceit or intent to deceive by the attorney (see Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept 2015]; see also Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 432 [1st Dept 1990]; Jean v Chinitz, 163 AD3d 497, 497 [1st Dept 2018). As such, this cause of action is dismissed.
Attorneys' Fees
In light of the dismissal of plaintiff's substantive claims against defendants, the remaining claim against defendants for attorneys' fees is also dismissed.
Accordingly, it is hereby
ORDERED that the motion of defendants Michael Barrows, Esq. and Anthony Capetola, Esq. d/b/a Law Offices of Anthony A. Capetola, made pursuant to CPLR 3211(a)(7) to dismiss the complaint, is granted in its entirety; and it is further
ORDERED that defendants shall serve a copy of this order upon plaintiff with notice of entry within twenty (20) days of entry.
This constitutes the Decision and Order of the court. 4/20/2020
DATE
/s/ _________
MARGARET A. CHAN, J.S.C.