Coby Group, LLC v Kriss

Coby Group, LLC v Kriss 2009 NY Slip Op 05185 [63 AD3d 569] June 23, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

Coby Group, LLC, Appellant,
v
David Kriss et al., Respondents.

—[*1] Vandenberg & Feliu, LLP, New York (Mark R. Kook of counsel), for appellant.

Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered July 2, 2008, which, following the conversion of defendant attorneys' (collectively Kriss) pre-answer motion to dismiss to a motion for summary judgment, granted defendants summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff alleges that Kriss represented it in connection with its efforts to obtain financing for a purchase of real estate, and that Kriss betrayed plaintiff by representing two potential coventurers (collectively Adjmi) whose interests were adverse to plaintiff. Summary judgment was properly granted on the basis of the release that plaintiff gave Adjmi in settlement of an action that Adjmi brought to enjoin plaintiff's dealings with the prospective purchaser of the real estate on flip sale from plaintiff. That release, in clear and unambiguous terms, broadly and expressly releases Adjmi's "agents and attorneys from any and all liability and accountability, directly or derivatively through Coby or otherwise" (see Wells v Shearson Lehman/American Express, 72 NY2d 11 [1988]; Argyle Capital Mgt. Corp. v Lowenthal, Landau, Fischer & Bring, 261 AD2d 282 [1999], lv denied 93 NY2d 817 [1999]); it does not limit the word "attorneys" and does not exclude the claims that plaintiff asserts herein. We reject plaintiff's contention that the release bars its claims against Kriss only in his capacity as Adjmi's attorney, not as plaintiff's attorney. First, at the time of the release plaintiff's principals were aware that Kriss was representing Adjmi; second, the record does not support a reasonable belief by plaintiff that it was ever represented by Kriss separate and apart from his representation of Adjmi (see Jane St. Co. v Rosenberg & Estis, 192 AD2d 451 [1993], lv denied 82 NY2d 654 [1993]). Plaintiff, a sophisticated real estate investment company, was introduced to Kriss by Adjmi when plaintiff and Adjmi were contemplating a joint venture. While it appears that Kriss purported to represent plaintiff while Adjmi and plaintiff had coinciding interests in obtaining financing, Kriss did so primarily in order to protect Adjmi's investment in the venture. The record demonstrates that plaintiff and Adjmi were at all times represented by separate counsel who worked together while their clients' interests were aligned, and stopped working together once their interests diverged. We have considered plaintiff's other arguments and find them unavailing. Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Richter, JJ. [See 2008 NY Slip Op 31855(U).]