Scott v Leventhal 2024 NY Slip Op 31543(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 656211/2017 NYSCEF DOC. NO. 429 RECEIVED NYSCEF: 04/30/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 656211/2017 PATRICIA SCOTT, AS EXECUTRIX OF THE ESTATE OF PATRICK FLEMING, MOTION DATE 08/10/2022
Plaintiff, MOTION SEQ. NO. 017 018
- V - DECISION + ORDER ON JASON LEVENTHAL and LEVENTHAL LAW GROUP, P.C., MOTION Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 017) 368, 369, 370, 371, 372,373,374,375,376,377,378,379,380,381,382,383,384,385,386,388,390,391,392,393,394, 395,396,397,398,399,400 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
The following e-filed documents, listed by NYSCEF document number (Motion 018) 341, 342, 343, 344, 345,346,347,348,349,350,351,352,353,354,355,356,357,358,359,360,361,362,363,364,365, 366,367,389,401,402,403,404,405,406,407,408,409,410,411,412,413,414,415,416,417,418, 419,420 were read on this motion to/for JUDGMENT-SUMMARY
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of plaintiff for summary judgment
in her favor (motion sequence number 017) is DENIED; and it is
further
ORDERED that to the extent that it seeks to dismiss the first
(breach of contract) and third (violation of Judiciary Law§ 487)
causes of action of the Third Amended Complaint, the motion of
defendants for summary judgment dismissing the complaint (motion
sequence number 018) is GRANTED; and it is further
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ORDERED that to the extent that it seeks to dismiss the
second (breach of fiduciary duty sounding in legal malpractice)
and third (fraud) causes of action of the Third Amended
Complaint, the motion of defendants to dismiss the complaint is
DENIED; and it is further
ORDERED that counsel shall confer with the Clerk of Trial
Assignment Part 40 to secure a mediation and/or trial date.
DECISION
This court previously dismissed plaintiff's causes of
action for breach of contract and breach of fiduciary duty,
holding that such causes of action were duplicative of
plaintiff's legal malpractice cause of action. See NYSCEF
Document Number 286. Such holdings are law of the case. See
Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d
78, 79 (1 st Dept 1995)
Plaintiff's recasting the Third Amended Complaint to remove
the legal malpractice cause of action and substitute and
reassert another breach of contract claim (first cause of
action) does not overcome such prior holding with respect to the
breach of contract claim, as plaintiff has still not come
forward with prima facie proof of any breach of contract by
defendants, given, as found earlier, the provision of the
retainer agreement dated September 8, 2015, that defendants
could withdraw as counsel at any time before any lawsuit was
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commenced, and, in fact defendants never commenced a lawsuit on
behalf of plaintiff's decedent. Nor does plaintiff's assertion
about defendants' alleged breach of the implied covenant of good
faith and fair dealing rescue her breach of contract cause of
action.
With respect to the claim of breach of fiduciary duty
(second cause of action), such cause of action sounds in legal
malpractice, and such legal practice claim was not previously
dismissed by this court. In that regard, legal precedent holds
that
"In the attorney liability context, the breach of fiduciary duty claim is governed by the same standard as a legal malpractice claim. Accordingly, to recover damages against an attorney arising out of the breach of the attorney's fiduciary duty, plaintiff must establish the 'but for' element of malpractice."
Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75-76 (1 st
Dept 2018) (citations omitted). Plaintiff comes forward with
prima facie evidence that "but for" the failure of defendants to
commence a lawsuit within the statute of limitations for battery
(one year after the alleged August 15, 2016 battery) or to
inform her of such deadline so that she might retain new counsel
to commence a timely action, she would have recovered damages
for battery in a lawsuit asserting that City Correction
Department employees intentionally assaulted and battered her
decedent son, causing injury to his testicles. Specifically,
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plaintiff submits the records of Bellevue Hospital Center that
states that plaintiff's decedent son was admitted to the
hospital on August 16, 2015, with complaints that [prior to
admission/11 AM, the day before] defendants' correction officers
"kicked [him] in the balls 3 times", [and that] "patient noticed
significant swelling ('swollen like a watermelon')" and that
examination in hospital revealed "trauma to scrotum, now
swelling and tenderness". As such evidence raises issues of
fact with respect to plaintiff's claim of breach of fiduciary
duty/legal malpractice, neither summary judgment dismissing such
cause of action against defendants nor partial summary judgment
of liability in favor of plaintiff is warranted. See Johnson v
Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept
1997) .
As to plaintiff's claim that defendants violated Judiciary
Law§ 487(1), this court concurs with defendants that such claim
lacks merit as plaintiff does not allege that defendants'
alleged "deceit or collusion" occurred in the "context of "an
action pending in a court"". Bill Birds, Inc v Stein Law Firm,
PC ( 3 5 NY 3 d 1 7 3 , 1 7 8 [ 2 0 2 0 ] ) . Instead plaintiff asserts
misleading or false advice preceding defendants' withdrawal from
representation, but not in the context of "an action pending in
a court", which, the Court of Appeals in Bill Birds, Inc, ibid,
found to be insufficient to state a claim cognizable as a
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violation of Judiciary Law§ 487. Moreover, contrary to
plaintiff's argument, any alleged misrepresentations made by
defendants in the instant action relate to credibility herein,
as, Judiciary Law§ 487 pertains to representation of a client,
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Scott v Leventhal 2024 NY Slip Op 31543(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 656211/2017 NYSCEF DOC. NO. 429 RECEIVED NYSCEF: 04/30/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 656211/2017 PATRICIA SCOTT, AS EXECUTRIX OF THE ESTATE OF PATRICK FLEMING, MOTION DATE 08/10/2022
Plaintiff, MOTION SEQ. NO. 017 018
- V - DECISION + ORDER ON JASON LEVENTHAL and LEVENTHAL LAW GROUP, P.C., MOTION Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 017) 368, 369, 370, 371, 372,373,374,375,376,377,378,379,380,381,382,383,384,385,386,388,390,391,392,393,394, 395,396,397,398,399,400 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
The following e-filed documents, listed by NYSCEF document number (Motion 018) 341, 342, 343, 344, 345,346,347,348,349,350,351,352,353,354,355,356,357,358,359,360,361,362,363,364,365, 366,367,389,401,402,403,404,405,406,407,408,409,410,411,412,413,414,415,416,417,418, 419,420 were read on this motion to/for JUDGMENT-SUMMARY
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of plaintiff for summary judgment
in her favor (motion sequence number 017) is DENIED; and it is
further
ORDERED that to the extent that it seeks to dismiss the first
(breach of contract) and third (violation of Judiciary Law§ 487)
causes of action of the Third Amended Complaint, the motion of
defendants for summary judgment dismissing the complaint (motion
sequence number 018) is GRANTED; and it is further
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ORDERED that to the extent that it seeks to dismiss the
second (breach of fiduciary duty sounding in legal malpractice)
and third (fraud) causes of action of the Third Amended
Complaint, the motion of defendants to dismiss the complaint is
DENIED; and it is further
ORDERED that counsel shall confer with the Clerk of Trial
Assignment Part 40 to secure a mediation and/or trial date.
DECISION
This court previously dismissed plaintiff's causes of
action for breach of contract and breach of fiduciary duty,
holding that such causes of action were duplicative of
plaintiff's legal malpractice cause of action. See NYSCEF
Document Number 286. Such holdings are law of the case. See
Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d
78, 79 (1 st Dept 1995)
Plaintiff's recasting the Third Amended Complaint to remove
the legal malpractice cause of action and substitute and
reassert another breach of contract claim (first cause of
action) does not overcome such prior holding with respect to the
breach of contract claim, as plaintiff has still not come
forward with prima facie proof of any breach of contract by
defendants, given, as found earlier, the provision of the
retainer agreement dated September 8, 2015, that defendants
could withdraw as counsel at any time before any lawsuit was
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commenced, and, in fact defendants never commenced a lawsuit on
behalf of plaintiff's decedent. Nor does plaintiff's assertion
about defendants' alleged breach of the implied covenant of good
faith and fair dealing rescue her breach of contract cause of
action.
With respect to the claim of breach of fiduciary duty
(second cause of action), such cause of action sounds in legal
malpractice, and such legal practice claim was not previously
dismissed by this court. In that regard, legal precedent holds
that
"In the attorney liability context, the breach of fiduciary duty claim is governed by the same standard as a legal malpractice claim. Accordingly, to recover damages against an attorney arising out of the breach of the attorney's fiduciary duty, plaintiff must establish the 'but for' element of malpractice."
Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75-76 (1 st
Dept 2018) (citations omitted). Plaintiff comes forward with
prima facie evidence that "but for" the failure of defendants to
commence a lawsuit within the statute of limitations for battery
(one year after the alleged August 15, 2016 battery) or to
inform her of such deadline so that she might retain new counsel
to commence a timely action, she would have recovered damages
for battery in a lawsuit asserting that City Correction
Department employees intentionally assaulted and battered her
decedent son, causing injury to his testicles. Specifically,
656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Page 3 of 7 Motion No. 017 018
3 of 7 [* 3] INDEX NO. 656211/2017 NYSCEF DOC. NO. 429 RECEIVED NYSCEF: 04/30/2024
plaintiff submits the records of Bellevue Hospital Center that
states that plaintiff's decedent son was admitted to the
hospital on August 16, 2015, with complaints that [prior to
admission/11 AM, the day before] defendants' correction officers
"kicked [him] in the balls 3 times", [and that] "patient noticed
significant swelling ('swollen like a watermelon')" and that
examination in hospital revealed "trauma to scrotum, now
swelling and tenderness". As such evidence raises issues of
fact with respect to plaintiff's claim of breach of fiduciary
duty/legal malpractice, neither summary judgment dismissing such
cause of action against defendants nor partial summary judgment
of liability in favor of plaintiff is warranted. See Johnson v
Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept
1997) .
As to plaintiff's claim that defendants violated Judiciary
Law§ 487(1), this court concurs with defendants that such claim
lacks merit as plaintiff does not allege that defendants'
alleged "deceit or collusion" occurred in the "context of "an
action pending in a court"". Bill Birds, Inc v Stein Law Firm,
PC ( 3 5 NY 3 d 1 7 3 , 1 7 8 [ 2 0 2 0 ] ) . Instead plaintiff asserts
misleading or false advice preceding defendants' withdrawal from
representation, but not in the context of "an action pending in
a court", which, the Court of Appeals in Bill Birds, Inc, ibid,
found to be insufficient to state a claim cognizable as a
656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Page 4 of 7 Motion No. 017 018
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violation of Judiciary Law§ 487. Moreover, contrary to
plaintiff's argument, any alleged misrepresentations made by
defendants in the instant action relate to credibility herein,
as, Judiciary Law§ 487 pertains to representation of a client,
and it is beyond peradventure that defendants no longer
represent plaintiff.
With respect to the claim of fraud (fourth cause of action)
of the Third Amended Complaint, plaintiff fails to connect the
alleged bribes of City Correction Department employees at Rikers
Prison, which were the subject of New York Times articles of June
2014, and May and September 16, 2016, to her assertions that
defendants accepted a bribe from Correction Department employees
in exchange for not commencing a lawsuit on her son's behalf,
sometime after they entered into a retainer with her son on
September 8, 2015. See Pramer S. C .A. v Abaplus Inter Corp, 76
AD3d 89, 94 (1 st Dept 2010). Moreover, such newspaper articles are
inadmissible hearsay. See Chong Min Mun v Soung Eun Hong, 109
AD3d 732, 733 (1 st Dept 2013). However, given that defendants do
not deny plaintiff's assertion (NYSCEF Document Number 369, p. 13
[ f]) that they failed to turn over copies of bank statements
recording their receipts for the period in question in response to
plaintiff's discovery demands and the discovery orders of this
court (NYSCEF Document Numbers 194 and 213), plaintiff is entitled
to a negative inference (see Cabrera-Perez v Promesa Housing
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Development Fund Corp, 225 AD3d 464 [1 st Dept 2024]), which coupled
with circumstantial evidence proffered by plaintiff concerning
defendants' motives to withdraw from representing plaintiff son,
creates a material issue of fact as to plaintiff's claim of fraud.
See Quality Leasing & Management Corp v American Arbitration
Association, 245 AD2d 30 (1 st Dept 1997). Given that such evidence
is not disposi ti ve of the claim for fraud, resolution of which
raises issues of credibility, the court shall deny each party's
motion for summary disposition of the fraud claim.
On May 1, 2023, plaintiff's attorney Richard Pu, Esq.,
filed a "Notice of Change/Discharge of Attorney and Notice of
Appearance", asserting that plaintiff would proceed prose.
(NYSCEF Document Number 426). This court notes that such Notice
is a nullity as plaintiff herself never consented thereto. Such
Notice is without force and effect as plaintiff, counsel's
client, did not sign such form or acknowledge her signature
before a notary public, as required pursuant to CPLR §321(b)
See Garafola v Mayoka, 151 AD3d 1018 (2d Dept 2017). Instead
such the form appears to have been filled out by counsel. Upon
filing by plaintiff's counsel of a Notice of Substitution, which
is duly signed and acknowledged by his client before a notary
public, coupled with proof of service by overnight mail at her
last known address of a signed copy thereof as well as a copy of
her legal file on plaintiff from Richard Pu, Esq., which proof
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Richard Pu, Esq., must post on NYSCEF, plaintiff may proceed pro
se. Thereafter, plaintiff prose must e-mail the Clerk of IAS
Part 59 that she wishes to proceed prose (SFC-
Part59Clerk@nycourts.gov ), research information about representing
herself at (Legal-References.pdf(nycourts.gov) and contact the Help Center
Help Center I NYCOURTS.GOV for assistance with e-f iling, as this
laws uit is an E-Filed case.
J)-~ f l - } ~ 20240430204 755DJ AMESDDB7FB56EB84 4C0F8A9880C 61 BA9E6D8
4/30/2024 DATE DEBRA A. JAMES, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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