Soloway v Kane Kessler, PC
Annotate this CaseDecided on August 7, 2017
Supreme Court, New York County
Stephen Soloway, Plaintiff,
against
Kane Kessler, PC, DARREN BERGER, EBERT LONTOK, LLC, LONTOK CHANCE, LLP, ERWIN LONTOK, Defendants.
159116/2016
Plaintiff: Russ & Russ PC, Massapequa, NY
Defendant Kane Kessler: Furman Kornfeld & Brennan LLP, New York, NY
Defendant Ebert Lontok LL" target="_blank">Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
New York's borrowing statue, CPLR 202, provides that "An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply." "[I]n actions brought by non-New York residents, the shorter of the New York Statute of Limitations or the limitations period of the jurisdiction where the cause of action accrued will apply" (Ackerman v Price Waterhouse, 252 AD2d 179, 195, 683 NYS2d 179 [1st Dept 1998]).
Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York's three-year statute of limitations period applies.
The absolute latest date Kane or Berger (on behalf of Kane) could possibly have committed legal malpractice was February 7, 2013— the latest closing date referenced in the complaint (see complaint at 17 [alleging that Kane received two notices from Harris Schaefer on December 20, 2012 that closings for four separate units would occur on February 7, 2013]). Taking these facts as true, as the Court must on a motion to dismiss, this action was still commenced more than three years later - in October 2016. Therefore, this action is time barred against Kane and Berger.
Plaintiff's reliance on a theory of a continuing duty of representation does not compel a different result. Plaintiff allegedly suffered damages because he was unaware of these notices and lost his down payments when he ignored the closing dates. That means the cause of action accrued at those closing dates— assuming arguendo that Kane and Berger had some continuous duty to represent plaintiff after plaintiff fired Kane in October 2006.
Lontok LLC's Motion To Dismiss
"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]). A motion to dismiss based on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d [*2]314, 326, 746 NYS2d 858 [2002]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005]).
Lontok LLC moves to dismiss on the ground that this entity was not even in existence until April 2013— months after the latest possible date of any alleged malpractice. Lontok LLC argues that it cannot be held liable for legal malpractice because there was no attorney-client relationship at the time plaintiff alleges his cause of action accrued.
In opposition, plaintiff insists that his complaint sets forth causes of action against Lontok LLC for vicarious liability arising from Erwin Lontok's continuing professional duty to plaintiff under New Jersey law.
The complaint is dismissed as to Lontok LLC because plaintiff offered no opposition to Lontok LLC's documentary evidence that Lontok LLC was not in existence when the acts alleged in the complaint occurred. As stated above, the latest date identified in the complaint is February 7, 2013— the closing date for certain units. Erwin Lontok submitted an affidavit detailing his employment history, which asserts that Lontok LLC was not in existence until April 5, 2013 (see NYSCEF Doc. No. 45, ¶ 5). Plaintiff did not dispute this contention. Obviously, "[a] cause of action for legal malpractice cannot be stated in the absence of an attorney-client relationship" (Waggoner v Caruso, 68 AD3d 1, 5, 886 NYS2d 368 [1st Dept 2009]). Here, there was no such relationship during the relevant time period— when the notices were sent by the seller's attorney— and the complaint is dismissed against Lontok LLC.
Summary
Although the Court questions plaintiff's inclusion of Kane, Berger and Lontok LLC as defendants, sanctions are not appropriate. Mr. Lontok's various employers throughout the last decade complicated plaintiff's attempt to identify the correct parties to include in this action. Just because plaintiff has lost these motions does not mean that including these parties in the lawsuit was frivolous.
Accordingly, it is hereby
ORDERED that Kane and Berger's motion to dismiss is granted and all claims and cross-claims against these defendants are hereby severed and dismissed; and it is further
ORDERED that Lontok LLC's motion to dismiss is granted and all claims and cross-claims against this defendant are hereby severed and dismissed; and it is further
ORDERED that the clerk is directed to enter judgment accordingly upon presentation of the proper papers therefor.
This is the Decision and Order of the Court.
The remaining parties are to appear for a preliminary conference on November 28, 2017 at 2:15 p.m.
Dated: August 7, 2017
New York, New York
ARLENE P. BLUTH, JSC
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