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
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SUPREME COURT - STATE OF NEW YORK
HON. ARTHUR M. DIAMOND
Justice Supreme Court
TRIAL PART: 10
DARRYL ABRAMOWITZ, 23KT GOLD
COLLECTIBLES, LTD., and MERRCK MINT LTD.
INDEX NO: 015385-
MOTION SEQ. NO:l
LEFKOWICZ & GOTTFRIED, LLP , MARK
I. LEFKOWICZ, INDIVIDUALLY , and ERIC
J. GOTTFRIED, INDIVIDUALLY,
SUBMIT DA TE:02/24/12
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 '
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
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
marketed , sold , or offered for sale by
23KT but may be
marketed , sold , or offered for sale by
a 23KT Affiliate
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
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
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
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
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
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
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
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 '
, they commingled the facts
regarding 23KT Gold Collectibles ' agreements with the Daily News from 2006 and 2007 which had
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
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.
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,
2d 799 (Supreme Court
Queens County 1988). The plaintiffs motion for leave to amend their complaint is denied as
Fine 17 AD3d 449 (2
pursuant to CPLR9 3211 may nevertheless be
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
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
37 AD3d 763 , 764 (2
69 AD3d 912 913 (2
Dept 2007). " The
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
Steiner 96 NY2d 300
Brown, Raysman, Milstein, Felder
Arnay Indus. , Inc. Retirement Trust
303 (2001) and
Roth, supra at p. 913 , citing
(IJn order to prevail on a CPLR 93211 (a)( 1) motion , the moving par must show that the
AG Capital Funding
conclusively refutes. . . plaintiffs allegations.
State Street Bank and Trust Co. 5 NY 3d 582 , 590- 591 (2005), citing
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
AD3d 876 (2
s breach of his duty proximately caused
Meyers, LLP 92 AD3d
Rudolfv Shayne, Dachs, Stanisci, Corker
Sauer 8 NY3d 438 442
plaintiffto sustain actual and ascertainable damages.'''
knowledge commonly possessed by a
Feinman 99 NY2d 295 , 301- 302 (2002) and citing
Dept 2011). " To
Foster , 83
establish a cause of action alleging legal malpractice, a plaintiff
must prove inter alia the existence of an attorney- client relationship.
Spodek 63 AD3d 719 , 721 (2
Dept 2009) and
Roth, supra at p.
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.' "
at p. 721. "'
is well established that , with respect to attorney malpractice , absent fraud , collusion , malicious acts
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
Polizotto 243 AD2d 672 (2
Hurst 32 AD3d 909 , 911 (2 Dept 2006), quoting
Good Old Days Tavern, Inc.
Dept 1997) and
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.
Kalathara 48 AD3d 528 , 529 (2
Dept 2008), citing
Lumer 23 AD3d 550 (2
97 NY2d 603 (2001) and
280 AD2d 704 (3
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
any damages ,
but for the lawyer s negligence.
Rudolfv Shayne, Dachs,
Sauer, supra at p. 442
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
Meyers, LLP, supra
82 AD3d 804 (2 Dept 2011).
The complaint fails to plead facts which would establish an attorney- client
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),
Enbar 15 Misc 3d 1 39(A)
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
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
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
9321 1 (a)(1), (7) is denied.
Siben 268 AD2d 578 (2
Forchell 17 AD3d 343 (2 Dept 2005),
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
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
recovering of the Daily News. The defendant attorneys canot
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
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
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
Meaghen 85 AD3d 1385
Meirowitz, LLP 61 AD3d 849,
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.
Katz 89 AD3d 909 (2
Owen 72 AD3d 1006 (2
see also, Alizio
Town of Walk il
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
Boslow Family Ltd. Partnership
Iv den. ,
707 (2008), citing
Co. , Inc.
3 NY3d 538 (2004), and
Kaplan, P LLC 52 AD3d 417 (1 Dept 2008),
Matter of R.
Kliment Frances Halsband,
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
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.
AD3d 760 (3rd Dept),
City of Schenectady,
85 (2011) and
15 NY3d 906 (2010), citing
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. ,
in effecting an arest or in swearing out a criminal complaint."
Chapo v Premier Liquor Corp. , 259
Wegman 307 AD2d 339 (2
see also Mesit
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.,
AD2d 902 (3
supra at pg. 131 , citing
Brown , 129
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
at p. 340 , quoting
the authority to act.' "
Metro-North Commuter R. R.
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.
Imprisonment and Malicious Prosecution 9 37 , citing
Wegman, supra quoting 59 NY Jur.
172 AD2d 484 486
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.
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
Barbera, supra at pg. 765
Danner 96 NY2d 391 , 394
State of New York, supra
(2001), and 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);
New York Life Ins. Co. 194 N. Y. 1 (1909);
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
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
Lefkowicz ' limited role in the criminal case against Abramowitz is an insufficient ground
City of White Plains
for the imposition ofliability for malicious prosecution.
supra . Furhermore , Abramowitz has failed to plead that the underlying
terminated in his favor. In fact , it is stil pending. Abramowitz ' claim for malicious prosecution is
Coates 286 AD2d 424(2
9 AD3d 449 (2 Dept
see also, Martinez
City of Schenectady,
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 '
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
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
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.
DATED: April 9 , 2012
APR 11 2012
HON. ARTHU M. DIAMOND
CGUNTY CLlftK' 1 OfFtCE
Attorney for Plaintiff
BRIAN J. DAVIS ESQ.
400 Garden City Plaza , Suite 430
Garden City, New York 11530
Attorney for Defendants
LEWIS BRISBOIS BISGAARD &
77 Water Street , Suite 2100
New York , New York 10005