Dash v Davis & Gilbert LLP

[*1] Dash v Davis & Gilbert LLP 2013 NY Slip Op 51469(U) Decided on September 6, 2013 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 6, 2013
Supreme Court, New York County

Ruth Dash, Plaintiff,

against

Davis & Gilbert LLP and SHARON HARRIS, Defendants.



103448/12



Plaintiff:

Ruth Dash - pro se

145 Williamson Avenue

Bloomfield, NJ 07003

Defendants:

Davis & Gilbert, LLP

1740 Broadway, 3rd Floor

New York, New York 10019

Doris Ling-Cohan, J.

Pro se plaintiff Ruth Dash commenced this action against defendants Davis & Gilbert LLP (Law Firm) and Sharon Harris (Harris) seeking monetary damages for alleged fraud, negligence, and legal malpractice, in the estate proceedings of plaintiff's father, Willie Lewis. Defendants previously filed a motion to dismiss, which was denied without prejudice, on procedural grounds, by order dated January 29, 2013. Defendants, having corrected the technical procedural defect, now jointly move to dismiss pursuant to CPLR §§ 3211(a)(1), 3211(a)(5) and [*2]3211(a)(7), on the grounds that plaintiff's causes of action are barred by documentary evidence, res judicata, and failure to state a cause of action.

BACKGROUND

The facts of this case are uncontested. In July 2008, Willie Lewis passed away leaving his last will and testament (Will), naming his wife, defendant Harris, and his friend, Joe Brailsford (together "Executors") as executors. The Executors retained defendant Law Firm to represent Willie Lewis's estate (Estate) in the New York Surrogate's Court, in the Estate of Willie Lewis, Index No. 2859/2008 (Surrogate's Court Action), to probate the Will and administer the Estate. The Will designated eight beneficiaries which included defendant Harris and plaintiff. The primary assets of the Estate were: (1) a 60% ownership interest in a funeral home business, the Amsterdam Memorial Chapel; and (2) a 50% ownership interest in 471 West 147th Street, New York, NY (Building), in which the Amsterdam Memorial Chapel is located.

In August 2010, plaintiff, filed objections, in the Surrogate's Court Action, that the Executors, inter alia, failed to provide the necessary details to review the lack of profits generated by the Amsterdam Memorial Chapel, the necessary details to assess the reasonableness of the sale price of the Building, and the necessary documents to prove the validity of the pre-arrangement contracts[FN1] owed by the Estate to the Amsterdam Memorial Chapel. In October 2010, plaintiff hired an attorney to represent her in the Surrogate's Court Action, and after much negotiation, plaintiff terminated such attorney in November 2011. A Final Accounting and Stipulation of Settlement of the Surrogate's Court Action was sent, by email, to plaintiff on April 6, 2012. Plaintiff and the Executors ultimately reached a settlement, culminating in the Stipulation of Settlement, dated April 19, 2012, wherein plaintiff agreed to withdraw her objections with prejudice. The Surrogate's Court issued a Final Decree of Judicial Settlement Executor (Final Decree) on May 30, 2012 in the Surrogate's Court Action.

On August 3, 2012, petitioner commenced this action seeking monetary damages allegedly resulting from the probate of the Estate, which was resolved by the Final Decree approximately 2 months earlier. Defendants now jointly move to dismiss the complaint in its entirety.

DISCUSSION

Defendants argue that plaintiff is seeking to re-litigate issues that were settled in the Surrogate's Court Action, and, thus, plaintiff's claims are barred by res judicata. Defendants further argue that, pursuant to CPLR 3211(a)(1), the undisputed documentary evidence disposes of plaintiff's claims. Defendants also contend that plaintiff's complaint must be dismissed as it fails to state a cause of action.

In opposition to defendants' motion, plaintiff argues that she was not previously provided with a full and fair opportunity to litigate her claims of fraud, negligence, and legal malpractice [*3]in the Surrogate's Court Action. Plaintiff also argues that the Executors failed to support the claim of pre-arrangement contracts with conclusive facts. Plaintiff alleges that on April 6, 2012, she received an email from defendants which contained a Final Accounting and a Stipulation of Settlement which differed from what was agreed upon. According to plaintiff, this proves defendants' deceit and fraudulent behavior. Specifically, in her opposition, plaintiff seeks damages of $7,171 for the difference between the agreed upon sale price of the Amsterdam Memorial Chapel and the actual sale price. In support, plaintiff proffers a letter sent by defendant Law Firm, dated November 10, 2011, to plaintiff's attorney in the Surrogate's Court Action with a proposed settlement of, inter alia, a "distribution of the estate's interest in the [Amsterdam Memorial] chapel in kind, or a sale for $60,000, whichever [plaintiff] prefer[s]. ...[I]f there is a distribution in kind, [defendant Harris] intends to sell her interest to Mr. Bethea in a separate transaction." Dash Affidavit in Opposition, Exh. K, p. 1. Plaintiff also proffers a copy of the email and Final Accounting, dated April 6, 2012, which lists the sale of the interest in the Amsterdam Memorial Chapel at $52,829, rather than $60,000. See Dash Affidavit in Opposition, Exh. L, Schedule A.

It is well settled that New York has adopted the transactional analysis approach to res judicata. "Under the transactional analysis approach..., once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy". Cornwall Warehousing, Inc. v Town of New Windsor, 238 AD2d 370, 371 (2d Dep't 1997) (internal quotations omitted).

Here, plaintiff concedes that she raised objections in the Surrogate's Court Action, obtained an attorney to represent her, negotiated and ultimately agreed to a settlement in the Surrogate's Court Action, and withdrew her objections with prejudice. While plaintiff proffers a proposed settlement allegedly offered by defendants to settle the Surrogate's Court Action, such proposal did not result in the final settlement agreement. Significantly, plaintiff does not allege that she agreed to settle on the terms proposed in defendants' letter of November 10, 2011, and, thus, such proposed settlement is not conclusive proof of agreed upon terms. Further, the Final Accounting proffered by plaintiff dated April 6, 2012 - nearly five months after the proposed settlement - was admittedly received and reviewed by plaintiff, prior to her entering into the Stipulation of Settlement in the Surrogate's Court Action on April 19, 2012. Plaintiff, knowing that the interest in the Amsterdam Memorial Chapel was sold for $52,829, nonetheless, chose to settle the Surrogate's Court Action and withdrew her objections with prejudice; thus, she may not now contest her decision to settle the Surrogate's Court Action.

Although plaintiff conclusorily alleges that she was not provided a full and fair opportunity to litigate her claims in the Surrogate's Court Action, plaintiff has failed to even allege how such claims, arising out of the same transaction, were not, and could not have been, addressed in the Surrogate's Court Action. Thus, plaintiff may not now raise the same claims which were previously brought to a final conclusion in a prior action, as such claims are barred by res judicata. Moreover, the Final Decree discharged the Executors "as to all matters and things contained in this accounting and decree". Bruce Affidavit in Support of Defendants' Motion to Dismiss the Complaint, Exh. G, Final Decree of Judicial Settlement Executor, p. 3. Thus, defendants' motion to dismiss is granted. [*4]

Even if this court were to consider plaintiff's claims, she has failed to state a cause of action. Pursuant to CPLR 3211(a)(7), on a motion to dismiss for failure to state a cause of action, the movant has the burden to demonstrate that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action. Leon v Martinez, 84 NY2d 83, 87-88 (1994). A motion to dismiss the complaint for failure to state a cause of action "will generally depend upon whether or not there was substantial compliance with CPLR 3013". Catli v Lindenman, 40 AD2d 714, 715 (2d Dep't 1972). If the allegations are not "sufficiently particular to give the court and parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action", the cause of action will be dismissed. Id. CPLR 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."

Here, plaintiff claims fraud, negligence, and legal malpractice. The elements of a cause of action for fraud are a material misrepresentation of fact, made with knowledge of its falsity, with intent to deceive, justifiable reliance on the misrepresentation by the party claiming that it was deceived, and damages suffered by that party as a result of the reliance. Desideri v D.M.F.R. Group (USA) Co., 230 AD2d 503, 505 (1st Dep't 1997); Swersky v Dreyer and Traub, 219 AD2d 321, 326 (1st Dep't 1996). Assuming the truth of plaintiff's allegations, the complaint does not contain the necessary elements for a cause of action based upon fraud. The allegedly false statement was made in a letter proposing an offer of settlement. Plaintiff fails to even allege that she relied on such statement, or that she took any actions based on such statement. Nor does it appear that plaintiff was deceived by the statement, since, at the time she signed the Stipulation of Settlement, she reviewed the Final Accounting and, admittedly, knew the sale price of the interest in the Amsterdam Memorial Chapel to be $52,829, rather than $60,000. Thus, there was no deceit and no reliance. As such, plaintiff's cause of action for fraud is dismissed for failure to state a cause of action.

In order to establish negligence, a plaintiff is required to prove "the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury". Baptiste v New York City Tr. Auth., 28 AD3d 385, 386 (1st Dep't 2006), citing Palsgraf v Long Is. R.R. Co., 248 NY 339 (1928). Although it is not stated in the complaint, presumably plaintiff's cause of action for negligence is against defendant Harris. Defendant Harris, as one of the two Executors of the Estate, owed a duty to the beneficiaries in probating the Estate. See Matter of the Estate of Albright, 309 NY 126, 130 (1955). Notably, plaintiff commenced this action against only one of the two Executors. While defendant Harris had a duty towards plaintiff, the complaint fails to even allege that defendant Harris breached such a duty. Aside from conclusory statements, that the actions of both defendants "appeared to be" fraudulent and deceptive, the complaint does not plead, with any particularity, how the defendants were allegedly negligent. Bruce Affidavit in Support of Defendants' Motion to Dismiss the Complaint, Exh. H, Complaint, p. 2. Although, the complaint does state that monies were paid from the Estate "without any legal proceeding to verify the amount", and that "the beneficiaries were bought out of its 60% share in Amsterdam Memorial Chapel...(without an appraisal of the business), when an appraisal [*5]was suggested to the defendant(s) it was opposed" (id.), such statements, taken as true, are insufficient to state a cause of action for negligence. Moreover, plaintiff fails to allege any injuries or damages. Thus, plaintiff's cause of action for negligence is dismissed.

As to plaintiff's claim of legal malpractice, plaintiff must allege: (1) the attorney's failure to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession; (2) the attorney's negligence was a proximate cause of the loss sustained; and (3) actual damages. Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 170 AD2d 108 (1st Dep't 1991). Further, the Appellate Division, First Department has held that a "claim for attorney malpractice arises out of the contractual relationship between the parties...[and a]bsent actual representation by [the attorney], plaintiff's claims of legal malpractice are untenable as against those defendants". Ito v Suzuki, 57 AD3d 205, 207 (1st Dep't 2008)(internal citations omitted). Here, it is undisputed that defendant Law Firm did not represent plaintiff in the Surrogate's Court Action. Without such contractual relationship, plaintiff's claim of legal malpractice against defendant Law Firm must fail, and, thus, is dismissed.

Based upon the above, defendants' motion to dismiss plaintiff's complaint in this matter, pursuant to CPLR 3211(a)(1), (5), and (7), is granted, as the issues relating to the within matter were previously settled between the parties, in the Surrogate's Court Action, and plaintiff withdrew her objections with prejudice, thus, plaintiff is precluded her from re-litigating the same claims in the current action.

Accordingly, it is

ORDERED that defendants' motion to dismiss is granted, and this action is dismissed with prejudice; and it is further

ORDERED that within 30 days of entry, defendant Davis & Gilbert LLP shall serve a copy of this decision/order upon all parties with notice of entry.

This constitutes the decision/order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

Footnotes

Footnote 1: Willie Lewis operated the Amsterdam Memorial Chapel during his lifetime. According to defendants, he entered into pre-arrangement contracts, whereby individuals prepaid their funeral expenses so no costs would be incurred by others upon their deaths. Upon Willie Lewis's death, it was discovered that such pre-arrangement contracts were not maintained separately in a designated business escrow account, and, thus, the Estate was responsible for reimbursing the Amsterdam Memorial Chapel for funds to honor such pre-arrangement contracts.