Haberman v Xander Corp.

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Haberman v Xander Corp. 2012 NY Slip Op 31645(U) June 11, 2012 Sup Ct, Nassau County Docket Number: 021508/10 Judge: Randy Sue Marber 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] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 SINCLAIR HABERMN and BELAIR BUILDING , LLC Plaintiffs Index No. : 021508/10 Motion Sequence... , 02 , 03 Motion Date... 03/15/12 -against- XANDER CORP. , AAON WAGNER, DENNIS BERKOWSKY, HERMN NEUMN JEANETTE IANNCCI and FIDELITY AND DEPOSIT COMPANY OF MARYLAND Defendants. XANDER CORP. Third- Part Plaintiff -against- MICHAL G. ZAPSON and DAVIDOFF MALITO & HUTCHER, LLP Third- Part Defendants. Papers Submitted: Notice of Motion (Mot. Seq. 01)......................... Memorandum of Law. ... Affirmation in Opposition................................... Reply Affirmation................................................ [* 2] Order to Show Cause (Mot Seq. 02).................... Affirmation in Opposition................................... Notice of Motion (Mot. Seq. 03)......................... Affirmation in Reply........................................ ... Upon the foregoing papers , the motion (Mot. Seq. 01) pursuant to CPLR 3 211 (a) (1), (4) and (7) by the Third- Part Defendant , Michael Zapson and DavidoffMalito and Hutcher, LLP (DMH) seeking to dismiss the Third- Cause (Mot. Seq. 02) brought Part complaint; the Order to Show 602 by the Defendant/Third- Part pursuant to CPLR Plaintiff, Xander Corp. (Xander) seeking consolidation of an action pending in the Supreme Court: Nassau County before the Hon. Antonio Brandveen under Index No. 002946/10 entitled Davidoff MaUto Hutcher v. Xander Corp. I with the instant action (Index No. 021508/1 0) or for joint trial; and the Cross-motion (Mot. Seq. 03) brought pursuant to CPLR 3025 (b) by the Defendant/Third- Part Plaintiff, Xander , seeking to amend the Third- Part complaint in the form annexed to the moving papers are determined as provided herein. It appears from the Third- Part Third- Part Defendant , complaint that in or about October 2002 , the Michael Zapson 2 and later the Defendant , DMH , was retained by the Defendant/Third- Part Plaintiff, Xander, to represent it in connection with a legal matter relating to a parcel of real propert known as 350 Shore Road , Long Beach , New York Davidoff MaUto Hutcher action was commenced prior to the thirdaction , it is referred to by the movant as Action No. Although the When Michael Zapsonjoined the firm of Davidoff Mali to par & Hatcher, Xander became client of said firm which provided legal services to Xander through Michael Zapson and a other lawyers in the firm. Davidoff Malito & Hutcher , LLP is a successor firm to Davidoff & Malito. [* 3] owned by the Plaintiffs herein and located adj acent to the west of real propert known as 360 Shore Road owned by the Defendant/Third- Part Plaintiff , Xander. The Plaintiffs , Sinclair Haberman and Belair Building, LLC (Habermanlelair) were the developers of the propert on which several multiple dwellng buildings were to be constructed over several After all of the units in Xander s building (Tower " at 360 Shore Road , had been sold , the Plaintiffs adjacent propert on August 12 where they proposed years. ), the first to be constructed , located , Habermanlelair, sought to develop the to construct Tower " " The building permit 2003 , permitting construction ofthe second building was issued , however, revoked by decision of the Zoning Board of Appeals of the City of Long Beach dated December 29 2003. In or about September 2003 , the Third- Part Defendants , on behalf of the Defendant/Third- Part Plaintiff, Xander, fied a Petition (bearing Index No. 014069/03) to determine title by adverse possession to , and/or a prescriptive easement over , part of 350 Shore Road for the purpose inter alia of preserving the parking plan of 360 Shore Road. The litigation , which continued for seven years , culminated in a bench trial which resulted in dismissal ofXander s Petition by order ofthe Hon. Wiliam R. LaMarca entered January 2010. As a consequence of that dismissal , commenced this action against the Defendant the Plaintiffs , Habermanlelair , Xander , and its board members alleging that because of the preliminary injunction obtained by Xander , the Plaintiffs were wrongfully [* 4] prevented from proceeding with construction of Tower "B" at 350 Shore Road. The Plaintiffs allege that the adverse possession action prosecuted by Xander constituted malicious prosecution for which they seek to recover damages as well as the amount of the undertaking. In the amended Third- Part complaint , the Third- Part Plaintiff seeks indemnification and contribution from DMH for any damages Habermanlelair may against Xander, recover based on the claim that the legal services rendered were inadequate improper, negligent and contrary to the legal , equitable and economic interests ofXander and its shareholders and board members. The Third- Part Defendant , DMH' s dismissal motion is predicated on the ground that the Third- Par Plaintiff, Xander ' s bare , conclusory allegations ofDMH' of contract , primafacie s breach negligence and breach of fiduciary duty are legally insufficient to establish a case oflegal malpractice. Further, the Third- Part Defendant , dismissal pursuant to CPLR ~ 3211 (a) (4) based on the pendency brought by the Third- Part Defendant , DMH, argues for of a prior action which was DMH , to recover unpaid legal fees in the amount of $237 593.42 , plus interest , from their former client , the Defendant/Third- Par Plaintiff Xander. In the action (Index No. 002496/10), before the Hon. Antonio Brandveen commenced in February 2010 , Xander asserted a crosssought to recoup a portion claim for breach of contract and of the attorneys ' fees already paid based on allegations inter alia [* 5] that their attorneys knew or should have known that there was insufficient evidence to prove the adverse possession! prescriptive easement claims asserted against Habermanlelair and did not adequately advise Xander about the merits of the lawsuit and the likelihood of Success after trial. A note of issue was filed in that case on September 20 marked " Settled before Trial" on June 1 , 2011 and it was , 2012. As this Court has not been advised whether the settlement ofthe action (Index No. 002496/10), before the Hon. Antonio Brandveen also resolved the claims ofXander in this action , this Court wil render its decision assuming that Xander s claims in this action remain viable. In opposition to the Third- Defendant/Third- Part Plaintiff, Part Defendant, DMH' s dismissal motion , the Xander, has cross-moved to amend the Third- Part complaint to omit the cause of action to recover a portion of the sum previously paid to the Third- Part Defendant as and for legal fees , and to assert causes of action for indemnification and contribution based on the Third- Part Defendant, DMH' s alleged professional negligence , i.e. , legal malpractice , in failing to advise Xander as to the appropriate course of action to be taken against Habermanlelair vis-a-vis the adverse possession claim , and in selecting and pursuing inappropriate and unsupportable claims for which Xander may be liable in damages. A motion to dismiss a complaint pursuant to CPLR ~ granted only if the documentary evidence submitted by the moving 3211 (a) (1) may be par refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter ," [* 6] oflaw. (Kopelowitz v. Mann 83 A. D.3d 793 , 796 (2 to qualify as documentary, it must be unambiguous Dept. 2011)). " In order for evidence , authentic , and undeniable. (Id. (internal quotation marks and citations omitted); see also Fontanetta Dept. 2010)). No such evidence has been v. , 73 A. John Doe 3d 78 , 86 presented. On a CPLR ~ 3211 (a) (7) motion , the court must afford the pleading at issue a liberal construction , accept all facts as alleged inthe pleading to be true , accord the pleader the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory. Young v. Campbell 87 A. D.3d 692 693- 94 (2 Dept. 2011) (internal quotation marks and citations omitted). Generally, leave to amend a pleading is committed to the sound discretion of the court and wil be freely given in the absence of prejudice to the resultingfrom any delay and where the v. Lefrak Org. 93 A. D.3d 754 (2 amendment is not patently lacking in merit. Corwise Dept. 2012). Here the proposed patently devoid of merit nor has the Third- Part Defendant non-moving par amendment is not shown any manner in which it would be prejudiced or surprised by the proposed amendment. Inasmuch as the relief sought in the counterclaim asserted by Xander in the action (Index No. 002496/10), before the Hon. Antonio Brandveen amount to be determined at trial to recoup part of the attorneys , i. damages in an ' fees it has already paid as a result ofplaintiffDMH' s conduct" is different from the indemnification and/or contribution claims Xander asserts in the amended Third- Part complaint in this action , there is no basis [* 7] to dismiss the Third- Part complaint on CPLR ~ 3211 (a) (4) grounds as there are not two action(s) pending between the same parties for the same cause of action in a court of any state or the United States. Nor was there any basis to order consolidation of the two actions. A motion for joint trial pursuant to CPLR ~ 602 ( of the court. 718 (2 Nationwide Assoc. v. a) rests in the sound discretion Targee St. Internal Med Group, P. Dept. 2001). Where common questions oflaw or fact exist or for ajoint trial pursuant to CPLR ~ 602 (a) to a substantial right of the part of NY , Inc. 72 A. opposing the 3d 677 678 (2 v. showing of prejudice Parsons Transp. Group Dept. 2010). The court finds no basis , Defendant/Third- Par Xander Whitman 2d 717 , a motion to consolidate wil be granted absent a motion. 286 A. s former equitable or otherwise , that the claim by the attorneys for unpaid counsel fees for services rendered , settled on June 1 2012 , should have been delayed or resolved in the context of the malicious prosecution claim in which the Defendant/Thirdcontribution and indemnification for any Part Plaintiff, Xander, seeks damages the Plaintiff, Habermanlelair , may recover against it in this action. The Plaintiffs in the action (Index No. 002496/10), which was pending before the Hon. Antonio Brandveen would have been severely prejudiced by consolidating an action ready for trial with one in which discovery has not yet begun. The interests of justice and judicial economy would not have been served by a joint trial of these actions. Here the instant Third- Part action and the action (Index No. 002496/10), [* 8] before the Hon. Antonio Brandveen , brought by the Defendant/Third- Part Plaintiffs prior attorneys , DMH, was not for the same causes of action and did not questions of law or fact. Further involve common , since a note of issue was filed in the action (Index No. 002496/10), that was before the Hon. Antonio Brandveen on September 22 , 2011 and that action has been settled , there is no need to further consider the Defendant/Third- Part Plaintiff, Xander s Order to Show Cause (Mot. Seq. 02) seeking the consolidation or joint trial of this action with the action (Index No. 002496/1 0), which was before the Hon. Antonio Brandveen. Accordingly, it is hereby ORDERED that the motion (Mot. Seq. 01) pursuant to CPLR ~ (4) and (7) by the Third- Part Defendant , Michael Zapson and LLP (DMH) seeking to dismiss the Third- Part complaint is 3211 (a) (1), DavidoffMalito and Hutcher DENIED; and it is further ORDERED that the Order to Show Cause (Mot. Seq. 02) brought pursuant to CPLR ~ 602 by the Defendant/Third- Part Plaintiff, Xander Corp. (Xander) seeking consolidation of an action pending in the Supreme Court: Nassau County before the Hon. Antonio Brandveen under Index No. 002946/10 , entitled Xander Corp. Davidoff Malito Hutcher with the instant action (Index No. 021508/10) or for joint trial is DENIED as moot; and it is further ORDERED that the Cross-motion brought pursuant to CPLR ~ the Defendant/Third- Par Plaintiff, Xander , seeking to amend the Third- 3025 (b) by Part complaint [* 9] the form annexed to the moving papers is GRANTED. All matters not decided herein are hereby denied. This constitutes the decision and order of this court. DATED: Mineola, New York June 11 2012 ndY Sue Marber, J. ENTERED JUN 14 2012 NASSAU COUNTY COUNTY CLERK' S OfFiCe

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