Brown v Gaines
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Brown v Gaines 2011 NY Slip Op 33540(U) December 29, 2011 Supreme Court, Nassau County Docket Number: 2205/11 Judge: Joel K. Asarch 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 17 ARTHUR BROWN Plaintiff DECISION AND ORDER - against - Inde)C No: 2205/11 ALAN R. GAINES, ESQ., THE LA W OFFICE OF ALAN R. GAINES, AND GAINES AND Motion Sequence No: 001 MANNO, ESQS. AND JOSEPH MANNO, ESQ., Original Retur Date: 07- 15- Defendants. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 6 were submitted on this Notice of Motion on August 2011 : Papers numbered Notice of Motion and Affirmation in Support Memorandum of Law Affidavit in Opposition Reply Affirmation Memorandum of Law The motion by the defendants , Alan R. Gaines , The Law Office of Alan R. Gaines , Gaines and Mano , Esqs. , and Joseph Mano Esq. , seeking an 7), dismissing the Complaint of the pro se Orderpursuantto CPLR 3211 (a)(I , 5 , and plaintiff, Arthur Brown I , with prejudice , is decided as follows: The Court is uncertain if the plaintiff continues to be self-represented , as the opposing papers herein were submitted under the legal back of Richard J. Reisch , Esq. [* 2] On or about February 14 , 2011 , the plaintiff commenced the within action for legal malpractice against defendant attorneys and law firms, Alan R. Gaines , The Law Office of Alan R. Gaines , Gaines and Mano , Esqs. , and Joseph Mano Esq. , by fiing a Sumons with Notice with the Nassau County Clerk' s offce. The plaintiff seeks damages in the sum of$100 000 000. On June , 2011 , the plaintiff fied a Supplemental Summons and Complaint with the County Clerk , alleging that in 2006 , he retained the defendants to prosecute claims against one Elchonon Kass and to prosecute four other actions. The plaintiff contends that service upon the defendant Kass was not properly made and the matter against defendant Kass was dismissed "as a direct and pro)Cimate result of the neglect of Defendants to produce competent witnesses and introduce e)Chibits " at the traverse hearing (Complaint , paragraph " ). The plaintiff alleges that the defendants committed malpractice in that they were negligent in their handling of the traverse hearing, that they failed to recommence an action against another defendant , Aaron Feinberg, and that their refusal to release the plaintiffs case fies prevented him from successfully prosecuting his remaining actions before the Cour. or about June 2 , 2011 , the Supplemental Summons and Complaint was served upon the defendants. It should be noted that in September 2009 , the Nassau County Supreme Cour (Murhy, 1.) joined for trial si)C actions involving the plaintiff herein. These joined matters are presently pending in this Court. Included in these actions are complaints alleging real estate fraud against defendants Aaron Feinberg (" Feinberg ) and Elchanon Kass (" Kass As concerns defendant Kass , following a traverse hearing on November 19 , 2007 in the action against him under inde)C number 11124/06 , the Court (Feinman , J. ) determined that service of process was defective and the case against him was dismissed. In 2009 , the Court determined that service upon defendant Feinberg in another action was improper and the Cour dismissed the [* 3] complaint as to Feinberg. THE UNDERLYING FACTS The plaintiff owned certain real property located in Atlantic Beach , New York , which was mortgaged with Washington Mutual Ban and the Ban of America as Successor by Merger to Fleet National Ban , NA. According to the plaintiff, he was unable to make mortgage payments. He and Kass then entered into an agreement where Kass would pay the mortgage and property ta)es until the plaintiff could repay him. Plaintiff would retain ownership of the property, notwithstanding that he deeded the propert to Kass. In the pending actions , it appears as if Kass is claiming a right to the real propert and plaintiff is alleging that Kass committed acts of fraud against him. Plaintiff is also alleging that he is a victim of foreclosure rescue fraud and Washington Mutual and/or Ban of America are foreclosing on the mortgagees) on the Atlantic Beach property. The plaintiff is also seeking relief pursuant to an alleged lien that he fied against certain Brooklyn real property, owned by Kass and another defendant, based on construction work he performed on that propert. He is also seeking an accounting of and a constructive trust over a limited liability company that he formed with defendant Kass (E)Chibit C to moving papers , Decision and Order of Hon. Karen V. Murphy, dated September 14 , 2009). The foregoing facts give rise to the si)C actions that were joined by the Cour as aforesaid. According to the Complaint herein , the defendant attorneys were retained by the plaintiff to represent him in the actions fied in the Nassau County Supreme Cour , captioned Kass Kass Action Elchanon Kass ), Inde)C No. 11124/2006 and Dr. Arthur Brown Arthur Brown v. v. Elchonon Aaron Feinberg and Feinberg Action ), Inde)C No. 9493/2008. The Kass Action was dismissed pursuant to a traverse hearing held in this Court on [* 4] November 19 2007 before the Hon. Thomas Feinman. The action was recommenced and a new inde)C number was assigned (Inde)C No. 020937/2007). The Cour , in a prior decision by the Hon. Karen V. Murhy, determined that service upon defendant Feinberg in the Feinberg action was improper and dismissed the action as to that defendant. According to the record , in April 2008 , the plaintiff submitted a Consent To Change Of Attorney to this Court , substituting Peter J. Pruzan , Esq. for defendant Alan R. Gaines , as attorney of record in the foreclosure matter against Washington Mutual. The plaintiff, in his Affdavit in Opposition , stated that he submitted a similar consent form for the other related matters (no such consents are attached to the opposition papers). DISCUSSION Regarding the issue that the plaintiff is time- bared from commencing his malpractice cause of action under CPLR ~ 214(6), the statute of limitations for legal malpractice is three years from the date the act of malpractice is committed , whether the action is brought as a malpractice action Levin or a breach of contract claim (see v. Pricewaterhouse Coopers, LLP 302 AD2d 287 (1 st Dept. 2003)). Generally, the statute oflimitations rus McCoy the time it was discovered (see v. from the time of the alleged malpractice , not from Feinman 99 NY2d 295 (2002)). However , the " continuing representation" doctrine can operate to toll the ruing of the Statute of Limitations if it is clear that the defendant attorneys continued to represent the plaintiff in the disputed matter. Here , there is nothing in the record that clearly establishes as to when the attorney/client relationship ended , paricularly since the evidence indicates that the defendant attorneys continued to represent the plaintiff in the other related actions (see Reply Memorandum of Law, p. 2 Stampfel v. Eckhardt 143 AD2d , (2nd Dept 1988)). It is noted that this branch of [* 5] defendants ' argument pursuant to CPLR ~3211 (a) (5) is based on the theory that plaintiffs cause of action may not be maintained because ofthe statute oflimitations , and accordingly, defendants motion canot be granted under this specific paragraph of the statute. As to the specific requirements under CPLR ~3211 (a) (1), generally, a motion to dismiss pursuant to this section of the statute will be granted only if the documentar evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see v. Fontanetta Doe 73 A.D.3d (2nd Dept 201 0), quoting Siegel , Practice Commentaies , McKinney s Cons. Laws of N. , Book 7B , CPLR C3211 :10 at 22). In sum , the analysis is two-pronged; the evidence must be documentar and it must resolve all the outstanding factual issues at bar. For evidence to considered as documentar, it must be unambiguous , authentic , and undeniable. The term " documentar evidence " as referred to in CPLR 3211(a)(l) typically means judicial records such as judgments and orders or out-of-cour documents such as contracts , deeds wils , and/or mortgages and includes " (a) paper whose content is essentially undeniable and which assuming the verity of its contents and the validity of its e)Cecution , wil itself support the ground on which the motion is based" (Siegel , Practice Commentares , McKinney s Cons Laws of NY , Book , CPLR C3211: 1 0 , at 20 Teitler v. Max 1. Pollack Sons, 288 AD2d 302 (2nd Dept 2001)). On such a motion , if the documentary evidence submitted by the defendant refutes the plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter oflaw , the motion may be granted (see Logatto v. City of New York 51 AD3d 984 (2 Dept 2008)). Here , the evidence submitted by the defendants is documentar and not only does it support their arguments , it clearly refutes the plaintiff s claims. The plaintiff claims that he was damaged because the defendant attorneys mishandled the traverse hearng in the Kass Action and that they never [* 6] recommenced the action against that defendant. However, the evidence clearly indicates that the action was recommenced and is stil pending before this Cour (see Notice of Motion , E)Chibits C D). In light of the foregoing, to prevail in an action to recover damages for legal malpractice , a plaintiff must establish that the defendant attorney failed to e)Cercise the ordinar reasonable skil and knowledge commonly possessed by a member ofthe legal profession, and that the attorney s breach of that duty pro)Cimately caused the plaintiff to sustain actual and ascertainable damages (emphasis added). A plaintiff must also show that he or she would have prevailed in the underlying action or would not have incurred any damages , but for the attorney s negligence (see Pena Kahn 48 AD3d 395 (2 Carrasco Dept 2008)). Not only does the documentar evidence indicate that the Kass Action is stil Cour , the plaintiff has failed to show any actual and ascertnable alleged failure by defendants caused by their alleged damages active in this resulting from such mishandling of the traverse hearing. Accordingly, the defendants ' motion as to the alleged act of malpractice in the Kass Action , and under CPLR ~3211 (a) (1), is granted. Moreover , the documentar evidence in the record , the Consent to Change of Attorney, the Letter from Peter J Pruan , Esq. dated June 2 2008 , and the plaintiffs own statements in his Affidavit in Opposition , indicate that the defendants were no longer representing the plaintiff during the time when the si)C actions were joined in September , 2009 , and when the action as to Feinberg was dismissed in September , 2009 (see Affdavit in Opposition , ~2 , E)Chibits A and B). To establish a cause of action alleging legal malpractice , a plaintiff must prove inter alia the e)Cistence of an attorney- client relationship (see Nelson v. Roth 69 AD3d 912 (2nd Dept 2010)). [* 7] The plaintiff has not demonstrated that there was such a relationship at the time his action against Feinberg was dismissed. Therefore , the defendants were not obligated to perform any legal work on his behalf. In other words , it would have been the new counsel' s responsibilty to recommence the action against Feinberg. Accordingly, as to the alleged act of malpractice regarding the Feinberg Action , the defendants ' motion is granted. In consideration of the plaintiffs defendants refused to tur legal malpractice claim where plaintiff alleges that over pertinent fies regarding his case , it is noted that the plaintiff s claims of resulting damages are prospective: " (W)hen these cases come to trial I wil be severely prejudiced in prosecuting them . Again , the plaintiff did not and canot establish the damages element of his legal malpractice action. Mere speculation about a loss resulting from an attorney s alleged omission Giambrone is insufficient to sustain a prima facie case oflegal malpractice (see v. Bank of New York 253 AD2d 786 (2 Dept 1998)). Furhermore , there are other remedies at law available to plaintiff if the defendant attorneys are wrongfully withholding client fies. Regarding the defendant' s branch of its motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action , the Cour must determine whether , accepting the facts alleged in the complaint as true and affording the plaintiff the benefit of every possible inference , the facts as Sarva alleged fit within any cognizable legal theory ( see v. Self Help Community Services, Inc. , 73 AD3d 1155 (2nd Dept 2010)). Based on the foregoing, the plaintiff has not set forth a cognizable cause of action in his complaint and this branch of the defendants ' motion is granted. Accordingly, the defendants ' motion is granted pursuant to CPLR ~3211 (a)(l) and (7). Plaintiffs complaint is dismissed with prejudice. This constitutes the Decision and Order of the Cour. [* 8] Submit Judgment on notice. Dated: Mineola, New York December 29 2011 ENTER: Copies mailed to: Richard 1. Reisch , Esq. Appearing for Arhur Brown Plaintiff Pro Se L' Abbate , Balkan , Colavita & Contini , LLP Attorneys for Defendants ENTERED JAN 04 2012 MAliAU COUNTY COUHTY CLIRK" OFFICE
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