Farage v Ehrenberg

[*1] Farage v Ehrenberg 2013 NY Slip Op 51313(U) Decided on August 12, 2013 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2013
Supreme Court, Kings County

Regina Farage, Plaintiff,

against

Lance Ehrenberg, Esq., Defendant.



7325/2011



Plaintiff's attorney: Regina Farage, pro se

Defendant's attorney: Lance Ehrenberg, Esq., pro se

Yvonne Lewis, J.

Pro se plaintiff Regina Farage, moves, pursuant to CPLR 2221, for an order granting leave to renew and reargue the Court's March 9, 2012 order, and, upon renewal, for (1) an order denying defendant Lance Ehrenberg, Esq.'s motion for summary judgment; (2) an order setting forth a discovery schedule, including a date to conduct a Preliminary Conference; (3) an order granting sanctions and costs against the defendant for filing a frivolous claim; and (4) an order granting the plaintiff her costs and disbursements in connection with this action. The defendant cross moves, pursuant to Part 130-1 of the Uniform Rules of the New York State Courts, for an order (1) awarding the defendant sanctions against the plaintiff in the amount of $10,000 for engaging in frivolous litigation practice; (2) granting the defendant his costs and disbursements in connection with the motion and cross-motion, including his reasonable attorneys' fees.

Background

The plaintiff commenced the present action against the defendant stemming from the defendant's representation of plaintiff in a personal injury action in Kings County Court that stemmed from a motor vehicle accident in 2002.[FN1] On November 16, 2006, the parties in the personal injury action entered into a stipulation of settlement (the stipulation), which was so ordered by Honorable Lila Gold. The stipulation stated, in relevant part: "The case is settled for $100,000 (lump sum). The plaintiff, her attorney and the defendant's attorney have all agreed to this settlement in open court before Judge Lila Gold. The fee of the plaintiff's attorney is [*2]reduced to 27%. The plaintiff's attorney will forthwith forward a general release and stipulation of discontinuance, with prejudice. The plaintiff's attorney's order to show cause is withdrawn."[FN2] The plaintiff subsequently moved to set aside the stipulation on the grounds that it was invalid. By order of the Court (Hon. Peter P. Sweeney) dated August 21, 2008, judicial hearing officer Seymour Schwartz (JHO Schwartz) was appointed to conduct a hearing to hear and report on whether the stipulation should be set aside. JHO Schwartz conducted hearings on October 2, October 23 and November 13, 2008, and subsequently issued a June 3, 2009 report. According to JHO Schwartz's report, the plaintiff failed to sustain her burden of proof that the stipulation "was fraudulent or a mistake and that it should be held invalid."

Ms. Farage moved to "disaffirm" the referee's report and re-argue her motion to vacate the stipulation, while defendant Ellen Bloom and the now-adverse former plaintiff's counsel, cross-moved to confirm the referee's report and for sanctions. On October 29, 2009, the Civil Court denied the plaintiff's motion, and granted the cross-motions to the extent that the Court confirmed the report of the referee. The plaintiff appealed the Court's October 29, 2009 Order, which the Appellate Term dismissed on April 30, 2012. The plaintiff also separately moved to vacate the Court's October 29, 2009 Order, to request a stay, and to compel the Civil Court to produce the complete case file, which the Appellate Term denied on July 27, 2012.

The Present Action

The plaintiff subsequently commenced the present action against the defendant for malpractice. Specifically, the plaintiff asserts the following causes of action: (1) attorney malpractice/negligence; (2) fraud and deceit; (3) constructive fraud and deceit; (4) deceit and collusion in violation of Judiciary Law § 487; (5) fraud, deceit, client abandonment, unfair settlement practices and blackmail; (6) fraud, collusion and attorney malpractice; (7) attorney malpractice and unfair settlement practices; (8) attorney malpractice; (9) improper withholding of client file and other ethics violations; (10) breach of duty, duress and coercion; (11) attorney malpractice and ethics violations; (12) breach of retainer agreement; (13) attorney malpractice; (14) attorney malpractice, criminal contempt, ethics violations; and (15) attorney malpractice. On September 28, 2011, the defendant moved for summary judgment dismissing the plaintiff's action as against him for failure to state a cause of action, and on the ground that the relevant statute of limitations had expired with regards to the plaintiff's legal malpractice claim. The defendant also requested costs and disbursements in connection with his motion. On March 9, 2012, the parties appeared before the Court for oral argument on said motion, and the Court issued the following decision: "After oral argument before the Court, defendant's motion for summary judgment dismissing the complaint as barred by the Statute of Limitations is granted. Attorneys fees and costs are denied."

The plaintiff makes the present motion to renew and reargue the Court's March 9, 2012 decision, and the defendant cross-moves for costs and sanctions [FN3]. The plaintiff requested, and received, several extensions to submit additional papers in further support of her motion. On February 25, 2013, the Court issued the following decision: "It is hereby ordered that the motion [*3]papers to renew and reargue is fully submitted and no papers are to be received. The plaintiff has [until] March 29, 2013 to respond to the cross motion regarding the issues of sanctions and costs and disbursements. The cross motion will be fully submitted on March 29, 2013." The plaintiff submitted opposition to the defendant's cross-motion.[FN4] The plaintiff also appealed the Court's March 9, 2012 decision with the Appellate Division, which is currently pending under the Docket No.: 2012-03461.

Plaintiff's Motion to Renew and Reargue

In moving to renew and reargue the defendant's motion to dismiss her complaint, the plaintiff contends that this action was timely filed on March 31, 2011 and falls within the applicable statute of limitations. The plaintiff states that the defendant's termination as the plaintiff's attorney in the 2002 accident ended with the duly executed Consent to Change Attorney dated April 11, 2008 and was filed with the Court on April 15, 2008. However, the Consent to Change Attorney specifically stated: "upon payment by the client of documented disbursements, and upon delivery of the full file to substituting counsel, by April 11, 2008." She argues that the defendant did not transfer the legal files in both personal injury cases to the plaintiff until April 23, 2008. In addition, the plaintiff states that a closing statement in the second personal injury action, which states "client took her file, obtained another attorney" was filed on May 16, 2008. Accordingly, the plaintiff believes that the defendant was attorney of record until May 16, 2008, and her complaint was filed within the three year statute of limitations. The plaintiff states that she was unable to make the present application to renew/reargue earlier because she did not receive the transcript of the March 9, 2012 oral argument of the defendant's motion to dismiss until August 31, 2012. In addition, the plaintiff asserts that she has been "continuously thwarted" in her attempts to acquire the hearing transcripts of JHO Schwartz in the personal injury action. Ms. Farage believes that both sets of transcripts, which she was unable to provide earlier, constitute "newly discovered facts" that "support plaintiff's testimony."

In addition, Ms. Farage asserts that, contrary to the Court's opinion, the Summons and Complaint states fifteen causes of action, all of which are not to be placed under a claim for legal malpractice. To that effect, the plaintiff notes that several causes of action, such as fraud, negligence, breach of contract & fiduciary duty, have a six year statute of limitations. According to the plaintiff, even if the defendant maintains that his termination ended with the November 16, 2006 settlement stipulation in the personal injury action, the service and filing of the plaintiff's Summons and Complaint on March 31, 2011 was well within the six year statute of limitations.

The plaintiff also states that the Court erred in rendering it's decision dismissing the complaint because it failed to include the reason underlying its decision to dismiss the complaint. Instead, the plaintiff argues that the decision merely stated that the defendant's motion was granted based on statute of limitations grounds. The plaintiff maintains that many decisions have been reversed within the Appellate Division based upon the lack of explanation or lack reason as to how the court rendered their decision

In opposition, the defendant argues that the plaintiff's motion to renew and reargue is both procedurally and substantively defective. The defendant notes that, pursuant to CPLR §2221(d)(3), a motion for reargument must be made within thirty days after service of a copy of the order and written notice of its entry. According to the defendant, the plaintiff waited until September 7, 2012 - nearly five months — to file the present motion. The defendant contends [*4]that there is no matter of law overlooked by the Court in issuing its decision. The defendant also maintains that the plaintiff's contention that Court improperly issued the decision is without merit, as CPLR §2219 only requires a determination "in such detail as the court deems proper." In addition, the defendant states that the plaintiff cites no law to support her claim that the Court erred in treating her claims as one claim for malpractice. In this regard, the defendant asserts that case law is clear that the plaintiff cannot couch malpractice claims in the guise of breach of contract and fraud claims in an attempt to circumvent the statute of limitations period for malpractice claims According to the defendant, the Court correctly determined that the plaintiff's complaint must be dismissed on the grounds that the plaintiff failed to file said complaint within the applicable three year statute of limitations for malpractice claims. With regards to the personal injury action, the defendant states that he formally withdrew as the plaintiff's counsel on November 16, 2006, which coincided with the open court stipulation of settlement. As a result, the defendant claims that the Court is correct in finding that the statute of limitations for her malpractice claims clearly expired in 2009.

With respect to the 2005 personal injury action, the defendant points out that the plaintiff has conceded that she discharged the defendant in open court on November 16, 2006. He argues that the plaintiff is thus disingenuous to assert that the defendant continued to represent her until the plaintiff satisfied the retaining lien of the defendant and the plaintiff received the case file in 2008. Further, the defendant claims that, assuming arguendo, that the defendant continued to represent the plaintiff until said date, the plaintiff failed to file the present action by March 13, 2011. In support, the defendant attaches a document dated March 13, 2008 which states: "Re: Regina Farage motor vehicle accident of June 17, 2005. Receipt by Regina Farage of what is represented to be the complete file of Lance Ehrenberg Esq. pertaining to the above matter is acknowledged by Ms. Farage. It is acknowledged by Mr. Ehrenberg that there are no outstanding legal fees or expenses due to him with respect thereto." The defendant notes that both the plaintiff and the defendant signed the March 13, 2008 letter, along with a witness named Maurice Chayt. As a result, the defendant asserts that the plaintiff failed to file the present complaint within the three year statute of limitations

The defendant cross-moves for sanctions in the amount of $10,000 and seeks an order granting his costs and disbursements in connection with the instant motion and cross-motion, including reasonable attorneys fees. The defendant argues that the plaintiff has failed to demonstrate that this Court overlooked or misapprehended any fact determining summary judgment against the plaintiff. To that effect, the defendant maintains that the plaintiff's motion is completely without merit. In addition, the defendant seeks sanctions because the plaintiff attended an erroneously scheduled preliminary conference on September 2, 2012 after summary judgment was granted dismissing the plaintiff's case, and entered into an order on the defendant's default. Accordingly, the defendant argues that the plaintiff has been deceptive and litigated this meritless action in bad faith.

Discussion

In moving to renew pursuant to CPLR 2221 (f), the movant must provide facts not offered on the underlying motion or demonstrate a subsequent change in law, and must provide a reasonable justification for the prior failure to present such facts (CPLR 2221 [e] [1]-[3]). Renewal will not be granted on facts that were available to the movant at the time of the original motion, unless the movant explains the prior omission (see Pena v New York Mexicana Car & Limousine Serv. Corp., 31 AD3d 407, 408 [2006]). Here, the plaintiff presents no new facts, and the Court therefore treats her motion solely as one to reargue.

In a motion to reargue pursuant to CPLR 2221 [d][2], the movant must demonstrate that the court, in deciding the original motion, overlooked or misapprehended a matter of fact or law. In this regard, the movant is required to only use facts offered in the original motion. [*5]Reargument is not intended as an opportunity for a party to advance a new theory of law (see Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590 [2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388 [2005]; Spatola v Tarcher, 293 AD2d 523 [2002]). In addition, reargument is not intended to provide the movant with successive attempts to argue the motion (Mazinov v Rella, 79 AD3d 979, 980 [2010]).

The court turns to consideration of whether the plaintiff has identified some matter of fact or law overlooked in granting the defendant summary judgment dismissing the complaint. Summary judgment requires the movant show a prima facie entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material factual issue (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The opposing party must then introduce "evidentiary proof in admissible form sufficient to require a trial of material questions," (Zuckerman v City of New York, 49 NY2d 557 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (id.).

The Court denies the plaintiff's motion for reargument on the grounds that the plaintiff has failed to establish that the law has been misapplied or that any relevant fact has been overlooked. Simply put, the Court is constrained to grant the defendant's motion to dismiss the plaintiff's complaint on the grounds that the plaintiff failed to file said complaint within the applicable three year statute of limitations with respect to malpractice claims. "A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'" (McCoy v Feinman, 99 NY2d 295, 301 [2002] [citations omitted]). The time is measured from the day the actionable injury occurs, irrespective of when the client discovered the injury (see Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031 [2005]; Chicago Title Ins. Co. v Mazula, 47 AD3d 999 [2008]). With respect to the 2002 case, it is clear that the three year statute of limitations passed in 2009. With respect to the 2005 case, the plaintiff concedes that she discharged the defendant in open court on November 16, 2006. Assuming arguendo that any toll of limitations was extended due to continuous representation in the 2005 case, such representation ended no later than March 13, 2008. Accordingly, the Court determined that the complaint must be denied because it was not served prior to the expiration of the three year statute of limitations.

The plaintiff failed to demonstrate that the court overlooked or misapprehended any facts or law in determining the prior motion. The Court has considered the plaintiff's remaining arguments and finds them to be without merit. The plaintiff's requests for sanctions and costs against the defendant for filing a frivolous claim, as well as for the plaintiff's costs and disbursements in this action, are also denied as moot.

Turning to the defendant's cross-motion for costs and sanctions, 22 NYCRR § 130-1.1(a) provides the Court with discretion may to "impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct." 22 NYCRR § 130-1.1(c) states: "conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." (See also RKO Properties, Inc. v Boymelgreen, 77 AD3d 721 [2010]; Gordon v Marrone, 202 AD2d 104 [1994], lv denied 84 NY2d 813 [1995]). In determining whether sanctions are appropriate, the Court looks at the pattern of conduct by the offending attorney or party (Levy v Carol Management Corp., 260 AD2d 27 [1999]). The Court has the discretion to impose sanction or costs (Landes v Landes, 248 AD2d 268 [1998]).

The Court finds that sanctions in connection with pro se plaintiff's motion to renew are not warranted here. Contrary to the defendant's contention, plaintiff's conduct is not frivolous or [*6]undertaken to harass or injure the defendant (cf D.W. v R.W., 34 Misc 3d 1222(A) [2012]). Considering the facts and circumstances presented here, the defendant's motion is denied. Accordingly, it is

This constitutes the decision and order of the Court.E N T E R,

_____________________________

yvonne lewis, J.S.C. Footnotes

Footnote 1:The defendant also represented plaintiff in a subsequent personal injury action that stemmed from a motor vehicle accident in 2005. She also informed the defendant to cease working as her attorney on the matter in 2007. However, plaintiff's complaint specifically concerns the defendant's representation of plaintiff in the earlier personal injury action.

Footnote 2:The defendant, had previously filed an Order To Show Cause to be relieved as plaintiff's counsel.

Footnote 3:Subsequent to the Court's March 9th, 2012 order dismissing the complaint, the plaintiff appeared for, and entered into, a preliminary conference order dated September 10, 2012. By order dated October 3, 2012, the Court, sua sponte, ordered the preliminary conference void ab initio.

Footnote 4:The Court considers the opposition to the extent that it pertains to the defendant's cross-motion for costs and sanctions.