Negron v 1175 Holding LLC
Decided on October 20, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.,
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
Lucia Negron and PEDRO NEGRON, NY County Clerk's No. 570284/05 Plaintiffs-Respondents, Calendar No. 05-197-198
against
1175 Holding LLC and COHEN, HURKIN, EHRENFELD, POMERANTZ & TENENBAUM, Defendants-Respondents.
Plaintiffs appeal from an order of the Civil Court, Bronx County, entered June 30, 2004 (Irving Rosen, J.) to the extent that it granted the cross motion of defendant law firm Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum for summary judgment dismissing the complaint as against it, and determined that plaintiffs had engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1; and from an order, same court and judge, dated November 3, 2004, which denied their motion for renewal and reargument of the aforementioned order.
PER CURIAM:
Order entered June 30, 2004 (Irving Rosen, J.) modified to the extent of vacating the determination that plaintiffs engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1; and as modified, affirmed, without costs.
Appeal from an order, same court and judge, entered on or about November 3, 2004, which denied plaintiffs' motion to renew and reargue, deemed to be from an order denying only a motion to reargue, and so considered, the appeal therefrom dismissed, without costs, as taken [*2]from a nonappealable order.
The complaint seeking damages for wrongful eviction was properly dismissed against landlord's attorneys. There was no showing that the law firm knew, when it sought to have the valid warrant of eviction executed, that tenants' timely payment of arrears had been accepted and then lost by the building superintendent. Absent tortious, malicious or fraudulent conduct, the law firm cannot be cast in damages for plaintiffs' eviction, albeit wrongful, on a valid warrant (see Chelsea Marina Inc. v. Scoralick, 94 AD2d 189 [1983]; Singer v. Whitman & Ransom, 83 AD2d 862 [1981]; cf. Mayes v. UVI Holdings, 280 AD2d 153 [2001]).
However, the Civil Court's determination that plaintiffs' commencement of this action against the law firm was frivolous within the meaning of 22 NYCRR 130-1.1 was an improvident exercise of discretion. While ultimately unsuccessful, plaintiffs' claim against the law firm was not "completely without merit" (22 NYCRR 130-1.1[c][1]).
This constitutes the decision and order of the court.
Decision Date: October 20, 2005
