Vlachos v Weil

[*1] Vlachos v Weil 2011 NY Slip Op 50538(U) Decided on April 8, 2011 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 8, 2011
Supreme Court, Queens County

Stavros Vlachos et al.

against

C. Fred Weil et al.



George Trimiklionitis

against

C. Fred Weil et al.



11028/2009

 

For all the Plaintiffs: Michael X. Hartofelis, Esq., 40-12 31st Ave., Astoria, New York 11103

For the Defendant C. Fred Weil: Furman Kornfeld & Brennan, LLP, by A. Michael Furman and Nicholas Melissinos, Esqs., 61 Broadway, New York, NY 10006

For the Defendant Arnold Azarow: Farrell Fritz, P.C., by James M. Wicks and Aaron E. Zerykier, Esqs., 1320 RXR Plaza, Uniondale, New York 11556

For the Third-Party Defendant Evgeny Freidman s/h/i as Evgeny Friedman: Gerber & Gerber, PLLC, by Anu Ramlackhan, Esq., 26 Court Street, Brooklyn, New York 11242-1114

Charles J. Markey, J.

These two actions arise out of the stock sale in the following corporations: Bull Consulting, Inc.; Gess Corporation; and Millennium Taximeter Corporation. Some of the corporations ran a business consisting of a gas and repair station and convenience store and some owned the property. The defendants C. Fred Weil ("Weil") and Arnold Azarow ("Azarow") were hired and retained jointly by the plaintiffs in Action No. 1 and Action No. 2 to represent them in the sale of stock in the corporations to third-party defendant Evgeny Freidman. The plaintiffs allege that, as a result of the negligence of the defendants, they did not receive the correct amount of money that they were owed when they transferred their shares of stock at the closing. They allege that as a result of this malpractice, there was a total short fall of $417,926.40 and that each shareholder lost $104,481.60.

On or about April 28, 2009, the plaintiffs Stavros Vlachos and Eleftherios Vlachos commenced Action No. 1 against the defendants Azarow and Weil. At the same time, George Trimiklionitis filed an identical action, Action No. 2, against the same defendants.

The defendant Weil, who is a defendant in both actions, moves, pursuant to CPLR 602(a), to consolidate, for all purposes, the two actions, Stavros Vlachos and Eleftherios Vlachos v C. Fred Weil and Arnold Azarow, Index No. 11028/09 (Action No. 1) and George Trimikliniotis v C. Fred Weil and Arnold Azarow, Index No. 11029/09 (Action No. 2).

Upon the foregoing papers, this unopposed motion is granted. The issues raised in these separate actions arise out of the same underlying transaction and occurrence, the defendants in both actions are the same, and the plaintiffs allege the same wrongdoing. Inasmuch as these actions involve common questions of law and fact, to avoid a multiplicity of suits, to save the time and expense of the parties, and to promote judicial efficiency, consolidation is warranted (CPLR 602[a]). The two actions are consolidated under Index No. 11028/09.

The new caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS -

x

STAVROS VLACHOS, ELEFTHERIOS

VLACHOS and GEORGE TRIMIKLIONITIS,Index No.: 11028/09

Plaintiffs,

- against -

C. FRED WEIL and ARNOLD AZAROW, [*2]

Defendants.

And a Third-Party Action.

x

Movants shall serve a copy of this order with notice of entry on all parties to this consolidated action and on the Clerk of Queens County. Following service of this order, the Clerk is directed to transfer the files of the action under Index No. 11029/09 into the file under Index No. 11028/09 in order to effectuate the consolidation. At the time of filing of a note of issue, a copy of this order shall also be served on the Clerk of the Trial Term Office.

The Court next turns to the summary judgment motions, brought, pursuant to CPLR 3212, in both Action No. 1 and Action No. 2 by the plaintiffs and the motions also seeking summary judgment , in both actions, by the defendant Arnold Azarow, on his cross claims for indemnification and contribution against the defendant C. Fred Weil. The plaintiffs in Action No. 1 and the plaintiff in Action No. 2 filed nearly identical summary judgment motions in each action. The defendant Azarow also filed identical summary judgment motions in Action No. 1 and Action No. 2 on his cross claims for indemnification and contribution against the defendant Weil.

On a motion for summary judgment, the movant must offer sufficient evidence to establish its prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). These summary judgment motions must be denied. The movants rely on a purported admission contained within an e-mail, or email, by the defendant Weil, in which Weil stated that he was at fault for failing to collect all the funds at the closing.

This e-mail standing alone does not establish all the elements of a cause of action for legal malpractice. This Court's independent legal research has revealed that admissions contained in e-mails may be used in litigation, but only after a court has analyzed carefully several issues, including, but not limited to, the authority and the capacity that the person who made the statement had, in the factual circumstances of the case, for making the particular statement or admission (see, Sea-land Serv., Inc. v Lozen Intl., LLC, 285 F3d 808, 821-822 [9th Cir. 2002] [district court abused discretion in excluding e-mail admission]; Jackson v Sara Lee Bakery Group, 677 F. Supp. 2d 1268 [ND Ala. 2009] [excellent analysis of whether particular emails constituted admissions, depending on the status of the person's position within the company and the circumstances under which the alleged admission was made within the email] ; Schaghticoke Tribal Nation v Kempthorne, 587 F. Supp 2d 389, 398 [D. Conn. 2008] [e-mails written by congressional staffers were not admissions, but emails by Governor's staff were considered admissions]; In re Homestore.Com, Inc. Securities Litigation, 347 F. Supp 2d 769, 781 [CD Cal. 2004] [admitting emails as admissions as "highly relevant" to the financial dealings]; Riisna v American Broadcasting Companies, Inc., 219 F. Supp. 2d 568, 571-573 [SDNY 2002] [email from executive producer of television news show was considered an admission]). [*3]

In the present case, it would be improvident, at this pre-deposition phase, to start applying admissions in order to short circuit meaningful discovery. Several issues of fact exist warranting discovery, including the role each defendant and the plaintiffs played in determining how payments were to be made and whether any purported malpractice was the proximate "but for" cause of the injury.

Furthermore, no discovery, including any deposition has taken place. In light of the substantial outstanding discovery, including the depositions of the parties, the motions by the plaintiffs and the defendant Weil for summary judgment are denied as premature, without prejudice to renew (CPLR 3212[f]; see, Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2nd Dept. 2006]; Rosa v Colonial Tr., 276 AD2d 781 [2nd Dept. 2000]).

Accordingly, all summary judgment motions are denied.

Dated: April 8, 2011

J.S.C.