Chutko v Ben-Ami

Chutko v Ben-Ami 2017 NY Slip Op 04077 Decided on May 23, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 23, 2017
Friedman, J.P., Moskowitz, Feinman, Gische, Kahn, JJ.
157639/15 4070 4069

[*1]Michael Chutko, et al., Plaintiffs-Appellants,

v

Oded Ben-Ami, et al., Defendants-Respondents.



Michael Chutko, et al., Plaintiffs-Appellants,

v

Martin Melzer, Defendant-Respondent, The Estate of Marjorie Strider, Defendant.

Gold, Benes, LLP, Bellmore (Jeffrey B. Gold of counsel), for appellants.

Vouté, Lohrfink, Magro & McAndrew, LLP, White Plains (William G. Morris of counsel), for Oded Ben-Ami and Davidow, Davidow, Siegal & Stern, LLP, respondents.

Spizz & Cooper, LLP, Mineola (Harvey W. Spizz of counsel), for Martin Melzer, respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered July 8, 2016, in the attorney action, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs. Order, same court (Geoffrey D. Wright, J.), entered August 11, 2016, in the estate action, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The claims against the attorneys (defamation and tortious interference with contract) were correctly dismissed, because the attorneys' letter was "pertinent to a good faith anticipated litigation" as established by irrefutable documentary evidence (see Front, Inc. v Khalil, 24 NY3d 713, 715 [2015]). Plaintiffs failed to show that the litigation, commenced in Surrogate's Court by the Estate of Marjorie Strider to recover certain artwork, was not brought in good faith. Indeed, the Surrogate's Court found that there were reasonable grounds to inquire into the Estate's claim of ownership to the work.

The claims against the Estate and its executor, based on the same attorneys' letter, were correctly dismissed as barred by the doctrine of collateral estoppel (Alamo v McDaniel, 44 AD3d 149, 153 [1st Dept 2007]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 23, 2017

CLERK