Abramowitz v Lefkowicz & Gottfried, LLP

Annotate this Case

Download PDF

Abramowitz v Lefkowicz & Gottfried, LLP 2012 NY Slip Op 31011(U) April 11, 2012 Sup Ct, Nassau County Docket Number: 015385-11 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court -----------------------------------------------------------------------x TRIAL PART: 10 DARRYL ABRAMOWITZ, 23KT GOLD COLLECTIBLES, LTD., and MERRCK MINT LTD. NASSAU COUNTY Plaintiffs, INDEX NO: 015385- -against- MOTION SEQ. NO:l LEFKOWICZ & GOTTFRIED, LLP , MARK I. LEFKOWICZ, INDIVIDUALLY , and ERIC J. GOTTFRIED, INDIVIDUALLY, Defendants. SUBMIT DA TE:02/24/12 ------------------------------------------------------------------ x The following papers having been read on this motion: Notice of Motion..................................... Notice of Cross Motion...................... Memorandum of Law............................ This motion by the defendants Lefkowicz & Gottfried , LLP , Mark J. Lefkowicz , Individually and Eric J. Gottfried , Individually, for an order pursuant to CPLR 93211(a)(7) dismissing the plaintiff Darl Abramowitz ' causes of action sounding in legal malpractice , false arest and malicious prosecution and the plaintiffs ' causes of action sounding in breach of contract and punitive damages and an order pursuant to CPLR93211(a)(1), (7) dismissing the plaintiffs 23 KT Gold Collectibles , Ltd. and Merrick Mint Ltd. ' s cause of action sounding in legal malpractice is determined as provided herein. This cross-motion by the plaintiffs for an order pursuant to CPLR 93025(b) allowing them to amend their complaint is determined as provided herein. In this action , all of the plaintiffs malpractice and breach of seek to recover of the defendant attorneys contract based upon the defendant attorneys ' for legal alleged negligent representation of them in connection with their claims against the Daily News as well as their defense of counterclaims that were advanced against them by the Daily News. In addition , the "" [* 2] plaintiff Darl Abramowitz seeks to recover of defendant Lefkowicz for common law battery, false arest and malicious prosecution based upon an alleged altercation and the ensuing criminal charges Lefkowicz lodged against him sounding in menacing in the first degree and harassment in the second degree. The plaintiffs also seek punitive damages. With the exception of Abramowitz ' common law battery claim against Lefkowicz , the defendants seek dismissal of the complaint pursuant to CPLR 9 3211 (a)(l) and! or (7). The plaintiffs have cross-moved for leave to amend their complaint. More specifically, the plaintiffs seek to supplement in detail the allegations supportive of their legal malpractice claim. The facts relevant to the determination of this motion are as follows: 23KT Gold Collectibles and Merrick Mint Ltd. are corporations in the business of designing and manufacturing memorabilia and collective coins. In 2006 and 2007 , they entered into two separate agreements with the Daily News to market, promote and advertise collectible coins and to share profits. Mutual accusations of breach of those agreements arose; litigation ensued; and , a settlement was ultimately reached. 23KT Gold Collectibles and the Daily News subsequently entered into a new agreement on September 3 2008 to develop and promote a coin club. 23KT Gold Collectibles was obligated to conceive , design and develop " coins coin sets " and products which were to be sold through a Coin Club. The agreement incorporated ilustrative designs of products. The agreement contained an exclusivity provision as follows: The Products shall not be advertised , marketed , sold , or offered for sale in any forum or media by or on behalf of 23KT , any affiliate or (sicJ 23KT or any entity under common control with 23KT including without limitation The Merrick Mint , LTD. (a " 23KT Affiiate ), other than through the Advertisements and the Website. . . Any products (sic J that is substantially similar to a Product (a " Similar Product" ) wil not be advertised , marketed , sold , or offered for sale by 23KT but may be advertised , marketed , sold , or offered for sale by a 23KT Affiliate the ," [* 3] provided: (i) in the case of a U. S. Mint issued coin set bearing no additional design (a " Mint Coin ), the marketing and configuration of the Similar Product is not identical to the , Product; and (b) in the case of a product other than a Mint Coin , the design and concept of the Similar Product is not identical to the Product. The Agreement permitted both paries to terminate the agreement via written notice inter alia if the other pary materially breache(dJ the Agreement and the breach (wasJ not remedied within thirt (30) days of the breaching par' s receipt of written notice of the breach. " If the Agreement was terminated by 23KT Gold Collectibles pursuant to that provision , it was entitled to recover from the Daily News "reasonable actual out-of- pocket attorney s fees due to breach; and liquidated damages. . . . By correspondence dated Januar 29 2009 , the Daily News notified 23KT Gold Collectibles that it was in material breach oftheir agreement; more specifically, that it had come to its attention that "products and!or Similar Products were advertised , marketed , sold and/or offered for sale in violation of their Agreement." The Daily News fuher advised 23KT Gold Collectibles that its breach was not capable of being remedied and their Agreement would accordingly terminate on March 1 , 2009. By correspondence dated Februar 24 2009 , 23KT Gold Collectibles ' attorney Fran V. DeRosa advised the Daily News that 23KT Gold Collectibles " sincerely" believed that it had not violated the Agreement and that in any event , any breach was " curable " since any improper marketing and sales could be discontinued and the Daily News could be paid monetar compensation or otherwise credited for damages suffered as the result of marketing and sales which were violative of the paries ' agreement , if any. In addition , counsel for 23KT Gold Collectibles accused the Daily News of having materially breached their Agreement by unilaterally terminating their agreement and refusing to afford it an opportunity to cure. Via counsel , 23KT Gold Collectibles accordingly put the Daily News on notice that it was in breach of their agreement and it afforded the Daily News an [* 4] opportunity to cure that alleged breach. By correspondence dated April 6 , 2009 , the Daily News notified 23KT Gold Collectibles that it had breached their agreement again by failing to make a quarerly payment and report. On April 22 , 2009 , the Daily News notified 23KT Gold Collectibles attorney that over two months had passed since it notified 23KT Gold Collectibles of its initial product related breach and that although 23KT Gold Collectibles had sought and been afforded an opportunity to cure that breach and had assured the Daily News that it intended to send an accounting and proposal to establish that its breaches were curable , it had instead remained silent leading the Daily News to conclude that 23KT Gold Collectibles did not wish to attempt or intend to cure its breaches. Given the expiration of23KT Gold Collectibles ' time to cure , the Daily News terminated their agreement. As Chief Financial Officer of23KT Gold Collectibles , Abramowitz retained the law firm to represent it in connection with its dispute with the Daily News on March 31 , 2009. More specifically, the law firm was retained to institute a lawsuit on behalf of 23KT Gold Collectibles against the Daily News and to defend against anticipated counterclaims or retaliatory claims advanced by the Daily News. The Retainer Agreement provided that Lefkowicz & Gottfried canot , and therefore does not , in any maner by entering (thatJ Agreement or otherwise , make any promises or guarantees with regard to the outcome of the Client's claims " and that it was not retained to represent 23KT Gold Collectibles with regard to " an appeal of any sort or kind. Lefkowicz & Gottfried commenced a lawsuit on behalfof23KT Gold Collectibles against the Daily News on April 23 , 2009 in New York County Supreme Cour. The Daily News served a Verified Answer with counterclaims in June , 2009. An Answer was interposed by Lefkowicz & Gottfried. An Amended Verified Answer and counterclaim was served by the Daily News in December , 2009. The Daily News obtained sumar judgment dismissing 23KT Gold Collectibles and Merrick Mint Ltd. ' s complaint against it and it procured a conditional order of dismissal against 23KT Gold Collectibles requiring 23KT Gold Collectibles to produce documentar evidence or face having its Reply to Counterclaims stricken. Based upon 23KT Gold Collectibles ' inadequate [* 5] response to its discovery demand , the Daily News ultimately procured enforcement of that conditional order and 23KT Gold Collectibles ' Reply to Counterclaims was stricken and a declaration ofliability in favor ofthe Daily News was entered. An inquest on damages owed to the Daily News was scheduled. Although Michael Goldberg, Esq. , was retained by the plaintiffs and timely fied an appeal of the dismissal of23KT Gold Collectibles ' complaint , the plaintiffs untimely settled their dispute with the Daily News resulting in a payment by them and relinquishment of any claims 23KT Gold Collectibles had against the Daily News. A second action was commenced by Lefkowicz & Gottfried against the Daily News on behalf of23KTGoid Collectibles and Merrick Mint Ltd. , in2010. The Daily News ' motion to dismiss that complaint based upon the doctrine of res iudicata was granted. In this action seeking to recover for inter alia , legal malpractice , the plaintiffs maintain that Lefkowicz & Gottfried should have notified the Daily News that it was in breach before commencing 23KT Gold Collectibles ' first action against it; that they negligently drafted the first complaint and failed to cure the vital errors contained therein; that they negligently defended against the Daily News sumar judgment motion and never sought leave to amend to correct vital errors in the complaint; and , that they negligently responded to the Daily News ' discovery request. They also allege that the law firm failed to respond to their requests regarding the status of the lawsuit and to keep them apprised of critical developments and fuhermore , concealed negative facts from them. The plaintiffs also maintain that Lefkowicz & Gottfried never told them that the Daily News had procured sumar judgment dismissing their complaint against it; that they refused to appeal from that order; and that they never sought additional discovery documents from them even though they were faced with a conditional order of dismissal. More specifically, the plaintiffs allege in their complaint that in the first action against the Daily News , the defendant attorneys not only erred in naming Merrick Mint Ltd. as a plaintiff thereby subjecting it to liability on the Daily News ' cross- claims , they commingled the facts regarding 23KT Gold Collectibles ' agreements with the Daily News from 2006 and 2007 which had [* 6] been formally settled with the facts concerning the 2008 agreement , which resulted in the dismissal of that complaint on motion by the Daily News based on the settlement of the 2006 and 2007 claims. The plaintiffs further allege that the second complaint against the Daily News was dismissed based upon res iudicata since the pertinent facts regarding the 2008 agreement had been advanced in the first complaint and a distinction had not been made. The plaintiffs also allege that defendants dilatory conduct with respect to discovery led to their liabilty on the Daily News ' counterclaims. The plaintiffs additionally allege that a dispute arose at a meeting on September 13 2011 between Lefkowicz , Abramowitz , Abramowitz s brother Matt and Goldberg, 23KT Gold Collectibles and Merrick Mint Ltd.'s successor attorney. More specifically, they allege that Lefkowicz attempted to leave the meeting but Abramowitz would not allow him to do so whereupon Lefkowicz allegedly pushed him and left. Abramowitz alleges that Lekfowicz then went to the police and fied a complaint swearing that he had threatened him with a gun causing him to fear for his life , which Abramowitz adamantly denies. Abramowitz alleges that he ultimately surendered to the police where he remained in custody while the charges , Menacing in the First Degree and Harassment in the Second Degree were prepared. CPLR93025(a) allows a responsive pleading is served. par to amend a pleading as of right within 20 days afer a New York State Dept. of STS Management Development Inc. Taxation and Finance 254 AD2d 409 (2 Dept 1998). A defendant's motion to dismiss a complaint pursuant to CPLR9 3211 extends the defendant's time to answer and thus extends the time in which the plaintiff can amend hislher complaint as of right. New STS Management Development Inc. York State Dept. of Taxation and Finance supra, citingCPLR9 3211(f); CPLR9 3025 (a); & Zuckerbrot Realty Corp. 13 8 Misc Coldwell Banker Commercial Group, Sholom 2d 799 (Supreme Court Queens County 1988). The plaintiffs motion for leave to amend their complaint is denied as unecessar. Terranova Fine 17 AD3d 449 (2 pursuant to CPLR9 3211 may nevertheless be Complaint. Terrano Fine, supra, citng Livadiotakis Dept 2005). A defendant' s addressed on the merits motion to dismiss vis-a-vis the Amended Tzitzikalakis 302 AD2d 369 , 370 (2 Dept "' [* 7] Pros/cuer Rose, 2003); see also, Sage Realty Corp. LLP 251 AD2d 35 (pt Dept 1998). As is their right , the defendants have elected to pursue their motion to dismiss against the proposed Amended Verified Complaint. On a motion to dismiss pursuant to CPLR932 1 1 (a)(7), the pleading is to be afforded a Nelson liberal constrction.' 37 AD3d 763 , 764 (2 69 AD3d 912 913 (2 Roth, Dept 2007). " The Kempfv Magida Dept201O), quoting court must accept the facts as alleged in the complaint as true , accord the plaintiffs the benefit of every possible favorable inference , and determine whether the facts as alleged fit within any cognizable legal theory. Martinez 84 NY2d 83 , 87- 88 Leon Steiner 96 NY2d 300 Brown, Raysman, Milstein, Felder Arnay Indus. , Inc. Retirement Trust 303 (2001) and Roth, supra at p. 913 , citing Nelson (1994). (IJn order to prevail on a CPLR 93211 (a)( 1) motion , the moving par must show that the documentar evidence Partners , L.P. AG Capital Funding conclusively refutes. . . plaintiffs allegations. State Street Bank and Trust Co. 5 NY 3d 582 , 590- 591 (2005), citing Goshen Mutual Lif Ins. Co. of New York 98 NY2d 314 (2002). In an action to recover damages for legal malpractice , a plaintiff must demonstrate that the attorney " failed to exercise the ordinar member of the legal profession" reasonable skil and and that the attorney Dept 2012), quoting McCoy (2007), quoting AD3d 876 (2 s breach of his duty proximately caused Jacoby Meyers, LLP 92 AD3d Rudolfv Shayne, Dachs, Stanisci, Corker Sauer 8 NY3d 438 442 Verdi plaintiffto sustain actual and ascertainable damages.''' 771 (2 knowledge commonly possessed by a Feinman 99 NY2d 295 , 301- 302 (2002) and citing Dept 2011). " To Terio Foster , 83 establish a cause of action alleging legal malpractice, a plaintiff must prove inter alia the existence of an attorney- client relationship. 813, citing Bells Spodek 63 AD3d 719 , 721 (2 Velasquez Dept 2009) and Roth, supra at p. Nelson Katz 42 AD3d 566 567 (2 Dept 2007). " To prove an attorney- client relationship, there must be an explicit undertaking to perform a specific task.' " Nelson Roth, supra quoting Terio Spodek, supra at p. 721. "' is well established that , with respect to attorney malpractice , absent fraud , collusion , malicious acts '" ' " [* 8] or other special circumstances , an attorney is not liable to third paries , not in privity, for harm caused by professional negligence. Klein 304 AD2d 638 (2 Rovello Polizotto 243 AD2d 672 (2 rearg den. Dept 1999), Hurst 32 AD3d 909 , 911 (2 Dept 2006), quoting Moran Iv den. Dept 2003), Good Old Days Tavern, Inc. Dept 1997) and Conti 100 NY2d 509 (2003) and citing Zwirn 259 AD2d 300 261 AD2d 288 (1 Dept 1999). " Since an attorney-client relationship does not depend on the existence of a formal retainer agreement or upon payment of a fee , a court must look to the words and actions of the paries to ascertain the existence of such a relationship. Nelson Dept 2001); Kalathara 48 AD3d 528 , 529 (2 Iv den. Hansen Dept 2008), citing Lumer 23 AD3d 550 (2 Tropp 97 NY2d 603 (2001) and 280 AD2d 704 (3 Caff, Dept 2005). "' establish causation , a plaintiff must show that he or she would have prevailed in the underlying action or would not have incured & Meyers, LLP, supra and citing Bells quoting any damages , but for the lawyer s negligence. Rudolfv Shayne, Dachs, Verdi Jacoby Sauer, supra at p. 442 Stanisci, Corker Foster, supra. To succeed on a motion for summar judgment , the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements Verdi Jacoby Meyers, LLP, supra quoting Alizio Feldman 82 AD3d 804 (2 Dept 2011). The complaint fails to plead facts which would establish an attorney- client relationship between Abramowitz and the defendants. While the plaintiffs have alleged that the defendant represented 23KT Gold Collectibles , Ltd. and Merrick Mint Ltd. , they have not alleged facts indicative of a relationship with Abramowitz , individually. (Supreme Cour New York County 2007); (Supreme Cour New York County 2009), Holloway See, Topor Ernst Enbar 15 Misc 3d 1 39(A) Young, LLP 28 Misc 3d l2l4(A) affd , 82 AD2d 611 (151 Dept 2011). Abramowitz ' claim for legal malpractice is dismissed pursuant to CPLR932 1 1 (a)(7). Merrick Mint Ltd. was not a par to the agreement with the Daily News. The defendants misnomer of it as a plaintiff in 23KT Gold Collectibles ' suit against the Daily News did not cause [* 9] it any damages. While theoretically it could have been held responsible on the Daily News counterclaims , the Daily News could not have established its liabilty. More importantly, judgment was in fact only procured against 23KT Gold Collectibles. And , the plaintiffs have not established that the settlement included Merrick Mint Ltd. Accordingly, Merrick Mint Ltd. suffered no damage as a result of the defendants ' alleged negligence. Merrick Mint Ltd. s legal malpractice claim is dismissed pursuant to CPLR 321 (a)(1), (7). The plaintiffs ' have amply alleged facts establishing the defendants ' negligent handling of their case against the Daily News as well as ensuing damages. Furthermore , the documentar evidence relied on by the defendants does not conclusively establish that the plaintiffs could not have prevailed on their claims against the Daily News: Issues of fact exists as to whether the plaintiffs would have prevailed against the Daily News on their claims and in defense of the Daily News counterclaims. Dismissal of the 23KT Gold Collectibles ' legal malpractice claim pursuant to CPLR See, Sicilano 9321 1 (a)(1), (7) is denied. citing Shopsin Siben Forchell Siben 268 AD2d 578 (2 Forchell 17 AD3d 343 (2 Dept 2005), Dept 2000); see also, Pechko Gendelman , 20 AD3d 404 (2 Dept 2005). Contrar to the defendants ' assertions , 23KT Gold Collectibles has alleged that " but for " the defendants ' negligence , it would have faired better in its dispute with the Daily News: That is all that is required at this junctue. Nor does the documentar evidence relied on by the defendants establish as a matter of law that 23KT Gold Collectibles could not have prevailed as against the Daily News and/or that it could not successfully defended against the Daily News s counterclaims. The defendants have not established that 23KT Gold Collectibles violated the exclusivity provision nor is it clear that the Daily News ' initial notice of breach did not breach the agreement as well insofar as it failed to afford 23KT Gold Collectibles an opportity to cure. Furhermore , that 23KT Gold Collectibles ' agreement with the Daily News only entitled it to damages if it terminated the agreement does not require dismissal of23KT Gold Collectibles ' legal malpractice claim: It may have been the defendants ' failure to pursue that path that bared 23KT Gold Collectibles from ), [* 10] recovering of the Daily News. The defendant attorneys canot hide behind a contractual provision which they failed to execute on to escape liability for their malpractice. Finally, the cour rejects the defendants ' repeated allegations that 23KT Gold Collectibles simply canot establish that " but for " their alleged negligence , it would have prevailed in its action against the Daily News. That position puts the car before the horse. The defendants are seeking dismissal of the complaint: They accordingly bear the burden of establishing as a matter oflaw that arguendo they were negligent in their representation of 23KT Gold Collectibles in its assuming, dispute with the Daily News , that 23KT Gold Collectibles could not have prevailed in any event. This , the defendants have clearly failed to do. Where a " claim of breach of contract arises out of the same facts as an asserted legal malpractice cause of action and does not allege distinct damages , the breach of contract claim is duplicative of the malpractice claim (citations omitted). 1385- 1356 (3 see also, Turner Dept 2011); Meaghen 85 AD3d 1385 DiTondo Meirowitz, LLP 61 AD3d 849, Irving Finkelstein 850 (2 Dept 2009). The plaintiffs ' breach of contract claim is based upon the defendants ' alleged mishandling of their legal matters and does not seek damages distinct from their legal malpractice claim. It is dismissed. supra; Conklin Afman Katz 89 AD3d 909 (2 Owen 72 AD3d 1006 (2 see also, Alizio Dept. 2011); Town of Walk il Dept20l0); Feldman Rosenstein 40 AD3d 972 Dept 2007). In any event , the plaintiffs failure to " identify any paricular provision of a wrtten retainer agreement whereby defendants contracted to provide a paricular result above and beyond what they might be expected to accomplish using due care " requires dismissal of that cause of action as well. Boslow Family Ltd. Partnership Iv den. , (lvfcKinsey 11 NY3d 707 (2008), citing Co. , Inc. 3 NY3d 538 (2004), and Kaplan Kaplan, P LLC 52 AD3d 417 (1 Dept 2008), Matter of R. Kliment Frances Halsband, Sarasota, Inc. Kurzman Architects Eisenberg, LLP AD3d 237 (151 Dept 2006). In fact , the Retainer specifically precludes any additional promises or guarantees by the defendant lawyers. To establish a cause of action for false arrest , a plaintiff must show that the defendant [* 11] intended to confine him , that the plaintiff was conscious of the confinement , that the plaintiff did not Barbera , 76 consent to the confinement and that the confinement Was not privileged. Guntlow AD3d 760 (3rd Dept), City of Schenectady, NY2d 78 Kellogg, app dism. 85 (2011) and Martinez 15 NY3d 906 (2010), citing State Broughton cert den. sub nom. Schanbarger 37 NY2d 451 (1975), 423 U. S. 929 (1975). " In the context of a claim for false arest. . . there is no liabilty for merely giving information to legal authorities who are left entirely free to use their own judgment Misc 3d 1 243 (A) (Supreme Cour Nassau County AD2d 1 050 (4th Dept 1999); Sterling Mets, L.P. , DiMarinis in effecting an arest or in swearing out a criminal complaint." 2006), citing Chapo v Premier Liquor Corp. , 259 Wegman 307 AD2d 339 (2 see also Mesit 13 Dept 2003); Du Chateau Metro-North Commuter R. Co. 253 AD2d 128 (2 Dept 1999). In fact , identifying the plaintiff as a perpetrator of a crime , signing a complaint or testifying at trial does not give rise to tort liabilty. Metro-North Commuter R. R. Co., Du Chateau AD2d 902 (3 supra at pg. 131 , citing Brown , 129 Collns Pugachv Borja 175 Misc 2d 683 (Supreme Cour Queens County Dept 1988) and 1998). " A plaintiff must demonstrate that the defendant ' played an active role in the prosecution such as giving advice and encouragement or importing supra, at p. 340 , quoting Du Chateau Mesit the authority to act.' " Metro-North Commuter R. R. Co. , Wegman supra at pg. 131. "' The defendant must have affirmatively induced the offcer to act , such as taking an active par in the arest and procuring it to be made or showing active , officious and undue zeal , to the point where the officer is not acting of his own volition. Mesti Imprisonment and Malicious Prosecution 9 37 , citing Wegman, supra quoting 59 NY Jur. Eisenkraft , False 172 AD2d 484 486 Armstrong, Dept 1991). Abramowitz only alleges that Lefkowicz swore out a complaint against him. It was the Freeport Police Deparment that elected to press charges against Abramowitz. Abramowitz claim against. Lefkowicz for false arrest fails and is dismissed. The tort of malicious prosecution has four elements: ' that a criminal proceeding commenced; that it was terminated in favor of the accused; that it lacked probably cause; and that the proceeding was brought out of actual was [* 12] Guntlow malice.''' Barbera, supra at pg. 765 Danner 96 NY2d 391 , 394 Cantalino State of New York, supra Broughton (2001), and citing , citing at p. 457. " A criminal proceeding terminates favorably to an accused , for purposes of a malicious prosecution claim , when the final disposition of the proceeding involves the merits and indicates the accused' s innocence. MacFawn Kresler 88 NY2d 859 , 860 (1996), citing Trump Vilage Co-op. 58NY2d420(1983); Hollender New York Life Ins. Co. 194 N. Y. 1 (1909); Halberstadt 917 (2 Incagliato 84 AD3d see also, Rahman (aJ civilian defendant who merely furnshes information to law Dept 2011). And enforcement authorities who are then free to exercise their own independent judgment as to whether an arest will be made and criminal charges filed wil Hendrickson-Brown Lupski not be held liable for malicious prosecution. City of White Plains 92 AD3d 638 639- 640 (2 Dept 201 0), quoting County of Nassau 32 AD3d 997 , 998 (2 Dept 2006). Lefkowicz ' limited role in the criminal case against Abramowitz is an insufficient ground City of White Plains Hendrickson-Brown for the imposition ofliability for malicious prosecution. supra . Furhermore , Abramowitz has failed to plead that the underlying criminal proceeding terminated in his favor. In fact , it is stil pending. Abramowitz ' claim for malicious prosecution is dismissed. 2004) and Rahman Levy Incagliato, supra citing Coates 286 AD2d 424(2 Kochis Dept 2001); 9 AD3d 449 (2 Dept Revco Pharmacy, see also, Martinez City of Schenectady, supra. Punitive damages are available only in those limited circumstances where it is necessar to deter defendant and others like it from engaging in conduct that may be characterized as ' gross ' and morally reprehensible ' obligations. Rocanova and of' " such wanton dishonesty as to imply a criminal indifference to civil New York University Equitable Life Assur. Socy. Continental Ins. Co. 87 NY2d 308 , 315 (1995), quoting 83 NY2d 603 (1994), quoting Walker Sheldon 10 NY2d 401 404- 405 (1961). The conduct alleged here does not rise to that level. The plaintiffs ' claim for punitive damages is dismissed. In conclusion , the cause of action sounding in legal malpractice as advanced by plaintiff [* 13] Abramowitz and Merrick Mint Ltd. , the cause of action sounding in breach of contract , the cause of action sounding in false arrest and the cause of action sounding in malicious prosecution as well as the claim for punitive damages are dismissed pursuant to CPLR 9 321l(a)(1), (7). This constitutes the decision and order of this Cour. ENTER DATED: April 9 , 2012 ENTERED APR 11 2012 NASSAU COUNTY HON. ARTHU M. DIAMOND J. S. CGUNTY CLlftK' 1 OfFtCE To: Attorney for Plaintiff BRIAN J. DAVIS ESQ. 400 Garden City Plaza , Suite 430 Garden City, New York 11530 Attorney for Defendants LEWIS BRISBOIS BISGAARD & SMITH, LLP. 77 Water Street , Suite 2100 New York , New York 10005

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.