Demo v Badie
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Demo v Badie 2004 NY Slip Op 30393(U) October 21, 2004 Supreme Court, New York County Docket Number: 107444/04 Judge: Jane S. Solomon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK:I IAS PART 55 1 ------------------1------~--------------x MONA DEMO, as the Executrix of the I Estate of REVA WEINBERGER, and in her individual capacity, Plaintiff, Index No. 107444/04 ...... DECISION AND ORDER -againstl I JAMES BADIE, and STOLL, MISKIN, PREVITO, HOFFMAN & BADIE, Defendants. ----------------------------------------x JANES. SOLOMON, J.: ~,( ~ IJ Ocr Cou,,l.,.1':1.1:• ,., .~ s ~ ... Defendants James Badie ("Badie") and the ·O~ la~...iai~19 ~f C.)~~ Stoll, Miskin, Previte, Hoffman & Badie ("the Stoll firm") move C'~ I pursuant to CPLR §'3211 to dismiss the complaint in this legal malpractice action For the reasons set forth below, the motion is granted. '3ACKGROUND This is 1the second action filed by Mona Demo ("Demo") I against Badie and his law firm pertaining to his representation of I her as executrix of the estate of her mother, Reva Weinberger ("Weinberger"), an~ the sale of Weinberger's house in Brooklyn, New York. The house was jointly owned with survivorship rights by ! 1 Weinberger, Demo ar d her sister, .Ellen Weinberger Vera ("Vera") . Vera moved into it upon Weinberger's death. Demo alleges that, in or about November 2000, Badie advised her that as executrix she could sell the houle; that she contracted to sell it to George and I Elizabeth Gaul; but she could not close the sale because the house I [* 2] was not, in fact, part of the estate. I In June 12001, the Gauls sued Demo, individually I I and as executrix, and Vera for specific performance. Gaul v. Demo, Supreme Court, Kings County, Index No. 24712/01 ("the Gaul I action"). Accordihg to Demo, after substantial pressure from I Badie, she signed an agreement prepared by Vera's attorney that would allow the house to be sold and settle various disputes with I her sister, but asked Badie not to forward until instructed. However, Badie 13, 2001. sen~ the agreement out, and Vera signed it on June The next day, Demo wrote to Badie that she had decided to rescind her approval of the agreement. In MarcJ 2003, Demo sued Badie. Demo y. Badie, Supreme 1 Court, New York Copnty, Index No. 102408/03. The complaint alleged that Badie's advice constituted legal malpractice for which she suffered damages il the amount of $173,700. on October 10, 2003, Justice Leland DeGlasse dismissed the action stating that Demo had "not met the burden of alleging actual ascertainable damages as a I consequence of either her inability to convey title to the Gauls or I the June 11, 2001 p.greement with her sister." Justice DeGrasse g~anted On May 4, 2004, Demo's motion to reargue, but adhered to his original decis~on, stating that Demo's complaint alleged that Badie's advice was to her as executrix, but no claims for damages had been made on behalf of the estate, and that her individual claims were not vilble. I Prior td Justice DeGrasse's decision, on April 5, 2002, ! 2 [* 3] the court in the G~ul action rejected Demo's argument that she had I entered into the arreement with her sister under duress, ordered specific performance of the contract for sale of the house, and granted Vera's cross-motion directing Demo to fulfill her obligations under ~he agreement. Gaul v. Demo, supra. On or about May 14, 2004, Demo filed this action. 1 Discussion In her first cause of action, Demo alleges that Badie ! negligently adviseH her regarding (1) sale of the house; (2) her personal entry into the agreement with Vera; (3) payment to Vera of unowed monies to a~sure her participation in the sale; and (4) her I I renunciation of certain rights affecting distribution of i Weinberger's property. Defendants move to dismiss on the grounds that the claims arl barred by res judicata and collateral estoppal. Justice DeGrasse's ruling dismissing Demo's previous i complaint for f ailµre to state a cause of action is not a ruling on I the merits; therefpre, the doctrines of res judicata and collateral estoppel do not apply. Hodge v. Hotel Employees and Restaurant Employees Union Local 100 of the AFL-CIO, 269 A.D.2d 330 (1st Dept. I 2000). However, where the original pleading defects are not corrected in the nlw action, the judgment may be a bar to another action. 175 E. 74lb Corp. y, Hartford Acc. & Ind~, Co;cp,, 51 ! N. Y. 2d 584, 586, ni.1 i (1980). I Demo's first cause of action here suffers from the same I l 3 [* 4] defects it did before. now in her capacit~ She makes general conclusory allegations, as executrix, but fails to allege any damages I to the estate itself. Since the house ultimately was sold, the cause of action f a,lls because Demo has failed to allege actual and ascertainable dama9es. The secqnd cause of action alleges that Demo i individually was damaged, which differs from her claim in the first I action only in thai~ she now alleges that Badie broke his agreement I to hold the signedI agreement pending further direction. This is close to the argument in the Gaul action where she unsuccessfully claimed its invalirity because of duress. The court there found she had entered i~to the agreement voluntarily, stating that: I [n]o one alleges that the Weinberger Agreement does not contlain all elements of a valid enforceable contract between the defendants, with the exception of [Demb's] bare assertion of duress. Insofar as she was lthe first to sign the Agreement; that she did so in her own home, without the presence of [Vera] Jr [Vera's] attorney; that it was [Demo] who initiat~d the sale of the Premises in the first instanc~ and agreed to the purchase price; and that it was [Demo] who sought to persuade [Vera] to cooperate in the sale of the Premises as the other titleholder, the Court regards her claim of duress [as] unsubstantiated and insincere. Gaul v. Demo, supra, slip opinion, at 8. Unlike Justice DeGrasse's I decision, the decilsion in ~ is a ruling on the merits. In any event, no damages lare pleaded adequately. Demo alJo alleges that Badie acknowledged that she I sustained monetarl damages by promising in writing to waive his legal fee and cornp ensate her up to $10, 000. 1 4 It is undisputed that [* 5] ' r Demo wished to se1i the house, that she owned it with her sister, and that her sister had moved into the house. As the ~ court I concluded, it is clear from the face of the agreement that each I party made certain1 concessions to sell the house. Given these I facts, it is hard to see how Badie's advice to Demo to enter into an agreement with Vera was not merely the "selection of one among several reasonable courses of action." Paley v. Rosner, 65 N.Y.2d 735, 738 (1985). Even assuming that Sadie's initial advice to her constituted negliglnce, to state a cause of action for legal I malpractice, Demo must show that, but for the negligence, what would have been a favorable outcome was an unfavorable one. Id. I I This she failed tol do, and she still has failed to plead ascertainable damabes from his conduct. Therefore, the second I : cause of action fails. ! With regard to the third cause of action, Demo alleges that the Stoll firm is vicariously liable for Badie's malpractice. Given that the first and second causes of action are dismissed, the third must also fall. In her fourth cause of action, Demo seeks treble damages, presumabl¥ pursuant to Judiciary Law § 487, for allegedly false statements made by Badie in the first action. lied when stating t.1 She claims he hat he knew the estate was not the owner of the house. I I To obta~n treble damages, Demo must establish that she I I was deceived by the allegedly false affidavit or that her damages I 5 [* 6] were proximately caused by the alleged deceit. O'Connor v. Dime I Say. Bank of New York, F.S.B., 265 A.D.2d 313, 314 (2nd Dept. 1999). I The damages claimed by Demo were not caused by Badie's alleged falsehood to the court. original advice, a~ Rather, the claim is based on the to which this lawsuit has no merit. See Manna i y Ades, 237 A.D.2d1 264, 265 (2nd Dept. 1997). I Demo i ma~es other arguments whi~h similarly fail, and the fourth cause of acfion is dismissed. Accordidgly, it is hereby I ORDERED ithat defendants' motion to dismiss is granted, and the complaint :is dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court on submission of an ! ! appropriate bill o~ costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. Dated: Octobe~/, ENTER: 2004 .s.c ES. SOLOMON FILED OCT 2 5 21J04 . .... ' cor: .·. :. · -'... ·,· ...., lOr{K ~·. ~ 6 . ~ .• · •- .'> OFFICE: :~~
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