Opinion
11105 Index 101402/17
02-25-2020
Burton S. SULTAN, Plaintiff–Appellant, v. Michael H. ZHU, Esq., et al., Defendants–Respondents.
Burton S. Sultan, appellant pro se. Kaufman, Dolowich & Voluck, LLP, New York (Anthony J. Proscia of counsel), for respondents.
Burton S. Sultan, appellant pro se.
Kaufman, Dolowich & Voluck, LLP, New York (Anthony J. Proscia of counsel), for respondents.
Friedman, J.P., Richter, Webber, Singh, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 28, 2018, which granted defendants' motion to dismiss the complaint alleging claims for legal malpractice and breach of fiduciary duty, unanimously affirmed, without costs.
Defendants were retained by plaintiff in July of 2013 to represent him in an underlying action involving a dispute over allocation of repairs of condominium common areas in a townhouse. On appeal, plaintiff argues primarily that defendants negligently represented him because they failed to succeed in relieving him of a judgment in the amount of over $538,000 that had been entered against him in December 2012, notwithstanding an earlier judgment, entered in February 2003, following arbitration, which capped his liability at $127,660. Plaintiff alleges that defendants failed to even bring the fact of the inconsistent judgments to the court's attention.
Plaintiff's allegations in this vein do not amount to actionable malpractice (see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 50, 19 N.Y.S.3d 488, 41 N.E.3d 353 [2015] ). The record makes clear that the judge who directed entry of both judgments was fully aware of the terms of the earlier judgment, but the circumstances had changed in the intervening ten years due to Dr. Sultan's own delays and the added costs that his obstruction had caused. As such, the second judgment superseded the first, and the two were not inconsistent.
The IAS court also correctly determined that the remainder of the allegations underlying plaintiff's malpractice claims were barred by the doctrines of res judicata and collateral estoppel pursuant to CPLR 3211(a)(5) (see e.g. Karakash v. Trakas, 163 A.D.3d 788, 82 N.Y.S.3d 435 [2d Dept. 2018] ; Vera v. Low Income Mktg. Corp., 145 A.D.3d 509, 510, 43 N.Y.S.3d 307 [1st Dept. 2016] ). Many of the issues raised in the complaint have already been fully vetted and decided against Dr. Sultan despite his being precluded from relitigating those issues on appeal (id. ).
Further, while plaintiff asserts for the first time on appeal that his claim for breach of fiduciary duty is not duplicative of his legal malpractice claims because it seeks separate damages, namely for wrongful and excessive billing, there are no such allegations in the complaint. This Court has not considered this new theory advanced by plaintiff, which was not alleged by plaintiff in any event ( Bautista v. Hach & Rose, LLP, 176 A.D.3d 546, 108 N.Y.S.3d 849 [1st Dept. 2019] ).
We have considered plaintiff's remaining arguments, and find them unavailing.