Reches v Sack & Sack, LLP

Annotate this Case

Download PDF

Reches v Sack & Sack, LLP 2018 NY Slip Op 31643(U) June 28, 2018 Supreme Court, Kings County Docket Number: 511057/2017 Judge: Dawn M. Jimenez-Salta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 07/16/2018 11:44 AM 1] -· NYSCEF DOC. NO. 50 INDEX NO. 511057/2017 RECEIVED NYSCEF: 07/16/2018 At an !AS Term, Part && of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on June 2&, 201&. PRES ENT: HON. DAWN JIMENEZ-SALTA, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X BENJAMIN RECHES, Pro Se, Index No.: 511057/2017 Plaintiff, - against - DECISION AND ORDER SACK & SACK, LLP, Defeuriant(s). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR 2219(a), of the papers considered in the review of: 1) Plaintiff Benjamin Reches' ("Plaintiff' or "Reches") Notice of Motion, dated April 12, 2018 to Reargue Defendant Sack & Sack, LLP's ("Defendant" or "Sack") Motion to Dismiss, dated August 4, 2017 along with Plaintiffs Memorandum of Law in Support; 2) Defendant Sack's Attorn'ey's Affirmation in Opposition, dated May 4, 2018; ....., 3) Plaintiff Reches' Reply Affirmation, May 11, 2018, all of w~ich submitted on May 30, 2018.: Papers Numbered Notice of Motion and Affidavits Annexed .............. Plaintiff I Notice of Cross-Motion and Affidavits Annexed ....... . Order to Show Cause and Affidavits ...................... . Answering Affidavits .............................................. Defendant 3 [Exh. A- CJ Replying Affidavit.. ................................................ Plaintiff 4 [Exh. A-CJ Supplemental Affidavits .......... :.: ............................. . Exhibits .................................... :.............................. . Other [Memorandum ofLaw) ................................. Plaintiff2 [Exh. A) Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Plaintiff Benjamin· Reches' Motion to Reargue Defendants' Motion to Dismiss Plaintiffs Complaint for Failure to State a Clairri Pursuant to CPLR 32JJ (a)(7) and as Barred by Documentary Evidence Pursuant to CPLR 3211 (a)(l) is denied in its entirety. This Court did not overlook or misapprehend any matters of fact or Jaw or for some reason mistakenly arrived at its earlier Decision/Order, dated February 23, 2018 [Plaintiff 1; Plaintiff2 Memorandum of Law, Exh. 1 of 4 [*FILED: KINGS COUNTY CLERK 07/16/2018 11:44 AM 2] . NYSCEF DOC. NO. 50 INDEX NO. 511057/2017 RECEIVED NYSCEF: 07/16/2018 A; Defendant 3, , Exhs A-C; Plaintiff 4, Exhs. A-C]. PROCEDURAL HISTORY AND BACKGROUND This action originated from Defendant Sack's representation of PlaintiffReches in an underlying mediation with Plaintiffs employer, Morgan Stanley ("Morgan Stanley") on June 18, 2014. Pursuant to that process, Plaintiff accepted a $267,000.00 (Two Hundred Sixty Seven Thousand Dollars) settlement offer in connection with an employment discrimination complaint which he filed against his former employer, Morgan Stanley. Both Plaintiff and a representative from Morgan Stanley executed the Settlement Agreement ("Settlement") and General Release on June 30, 2014 [Plaintiff 1; Plaintiff 2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. · Because he was unhappy with the amount of the Settlement which he accepted, Plaintiff filed a Complaint, dated June 5, 2017 against Defendant Sacks, approximately three years later. Plaintiff alleged eleven (11) causes of action against Defendant Sacks. Ten (10) causes of action were for legal malpractice and one cause of action was for intentional infliction of emotional distress.'· . Defendant moved on August 4, 2017 to dismiss Plaintiffs Complaint in its entirety (the "Motion to Dismiss") pursuant to CPLR 321 l(a)(7) for failure to state a claim as well as pursuant to CPLR 321 l(a)(J) because the claim was barred by documentary evidence'. Plaintiff filed a Memorandum of Law in Opposition, dated October 24, 2017 3 . Defendant filed a Reply Affirmation, dated November 10, 2017 4 • When this Court heard oral argument from the parties on the Motion to Dismiss on November 15, 2017, it reserved its decision. In an Order (the "Dismissal Order"), dated February 23, 2018, this Court granted the Motion to Dismiss, having determined that Plaintiffs Complaint "fails to adequately plead specific factual allegations showing that, but for Defendant's alleged negligence, Plaintiff would have obtained a more favorable outcome ... in the mediation." This Court found that Plaintiffs allegations that he could have obtained a more favorable outcome in the mediation were "conclusory and speculative". This Court noted that 1 This Court notes that Pro Se PlaintiffReches' motion for leave to reargue is not in proper form since he did not include all the previous motion papers as well as his Complaint. However, because it is well established that courts may take judicial notice of a record in the same court of either the pending matter or of some other action, this Court will duly do so (see e.g. Matter of Currier [Woodlawn Cemetery}, 300 NY 162, 170 [1949]). 2 Because Pro Se Plaintiff did not attach a copy of Defendant's motion, this Court will duly take judicial notice. See Matter of Currier [Woodlawn Cemetery], supra. 3 Because Pro Se Plaintiff did not attach of copy of his Memorandum of Law In Opposition, this Court will duly take judicial notice. See Matter of Currier [Woodlawn Cemetery], supra. 4 Because Pro Se Plaintiff did not attach a copy of Defendant's Reply Affirmation, this Court will duly take judicial notice. See Maller of Currier [Woodlawn Cemetery}, supra. 2 2 of 4 [*FILED: KINGS COUNTY CLERK 07/16/2018 11:44 AM 3] . NYSCEF DOC. NO. 50 INDEX NO. 511057/2017 RECEIVED NYSCEF: 07/16/2018 "Piaintiff was not under economic duress," that the "mediation was voluntary," and "that he could have stopped at any time." [Plaintiff l; Plaintiff2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. In his Motion to Reargue along with a Memorandum of Law, dated April 12, 2018, Plaintiff claims that this Court overlooked or misapprehended matters of fact or law in its determination of its Decision/Order, dated February 23, 2018. In particular, Plaintiff argues that: 1) this Court misapprehended the use of a Term Sheet as enforceable at an EEOC settlement mediation; 2) this Court misapprehended Plaintiffs familiarity and knowledge about Term Sheets at the time of the mediation; 3) the Court overlooked Plaintiffs and Defendant Sacks' e-mail exchange following Plaintiffs retirement from Morgan Stanley but prior to the signing of the Settlement Agreement; 4) the Court misapprehended Plaintiffs situation at the time of the signing of the Final Settlement Agreement because it overlooked Defendant Sacks' e-mails prior to the signing of the Final Settlement Agreement; and 5) the Court misapprehended the "dire situation in which Morgan Stanley would have found itself in" after Plaintiffs retirement prior to the drafting of the Final Settlement Agreement. See Maritrans_GP, Inc., v. Pepper, Hamilton &Scheetz, 602 A2d 1277 (PA 1992); Rudo/fv. Shayne, Dachs, Staniscki, Corker & Sauer, 867 NE2d 385, 835 NYS2d 534 (2007); CPLR 222I (d)(2) [Plaintiff 1; Plaintiff2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-C]. In its Attorney's Affirmation in Opposition, dated May 4, 2018, Defendant Sacks maintains that Plaintiff is reiterating his prior arguments in contravention ofCPLR Section 222I. Because this Court already considered Plaintiffs arguments before its issuance of its Decision/Order, dated February 23, 2018, Defendant emphasizes that Plaintiff has failed to prove that this Court overlooked or misapprehended any facts or law. See Diorio v. City ofNew York, 202 AD2d 625, 609 NYS2d 304 (2"d Dept., 1994); Ebasco Construction, Inc., v. AMS Construction Co., Jnc.195 AD2d 439, 599 NYS2d 866 (2"d Dept., 1993) [Plaintiff 1; Plaintiff 2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. In his Reply Affirmation, dated May 11, 2018, Plaintiff contends that he has met the standards for reargument of the Motion to Dismiss pursuant to CPLR Section 222I. He maintains that he did not freely and voluntarily sign the Final Settlement Agreement. He questions Defendant Sacks' arguments about CPLR Section 2221. He takes issue with the negotiations and resultant Final Settlement Agreement [Plaintiff 1; Plaintiff2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. COURT RULINGS This Court notes that a motion for leave to reargue pursuant to CPLR Section 2221 may be granted only upon a showing that the Court overlooked or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. See Diorio v. City.a/New York, supra; Ebasco Construction, inc., v. AMS Construction Co., Inc .. supra; Foley v. Roche, 68 AD2d 558, 418 NYS2d 588 (l" Dept., 1979); Giovannioello v. Carolina Wholesale Office Mach., Co., 29 AD3d 737, 815 NYS2d 248 (2"d Dept., 2006). In its Order, dated February 23, 2018 (the "Dismissal Order"), this Court granted the Motion to Dismiss, specifically having determined that Plaintiffs Complaint "fails to adequately plead specific factual allegations showing that, but for Defendant's alleged negligence, Plaintiff would have obtained a more favorable outcome ... in the mediation." This Court found that Plaintiffs allegations that he could have obtained a more favorable outcome in the mediation were "conclusory and speculative". This Court noted that "Plaintiff was not under economic duress," that the "mediation was voluntary," and "that he could have 3 3 of 4 [*FILED: KINGS COUNTY CLERK 07/16/2018 11:44 AM 4] NYSCEF DOC. NO. 50 INDEX NO. 511057/2017 RECEIVED NYSCEF: 07/16/2018 ~ 'stopped at any time." [Plaintiff 1; Plaintiff 2 Memorandum of Law, Exh. A; Defendant 3, , Exhs A-C; Plaintiff 4, Exhs. A-CJ. Due to Plaintiffs failure to show that this Court overlooked or misapprehended any matters of fact or law or for some reason mistakenly arrived at its earlier decision, this.Court denies PlaintiffReches' motion to reargue Defendant's motion to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a claim and CPLR 321 J(a)(J) because the claim is barred by documentary evidence. Plaintiffs motion is an attempt to reargue his prior positions which were duly considered and previously rejected by this Court. This Court carefully considered Plaintiffs identical arguments before it issued its comprehensive Dismissal Order. Because it addressed all of Plaintiffs unchanged concerns, Plaintiffs arguments remain unavailing. Therefore, this Court adheres to its original rulings in its Decision/Order, dated February 23, 2018. See Diorio v. City ofNew York, supra: Ebasco Construction, Inc., v. AMS Construction Co., Inc., supra; Foley v. Roche, supra: Giovannioel/o v. Carolina Wholesale Office Mach., Co., supra [Plaintiff I; Plaintiff2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. Based on the foregoing, it is hereby ORDERED as follows: Plaintiffs motion to reargue Defendant's motion to dismiss the Complaint pursuant to CPLR 32JJ(a)(7) and CPLR 3211 (a)(J) is DENIED in its entirety pursuant to CPLR 2221. This constitutes the Decision and Order of the court. Date: June 28, 2018 Reches v. Sack & Sack (Index Number 511057/2017) Hon. Dawn Jimenez-Salta dustiCe of the supreme Court ...., = = (._ c:: ,al """ :x ;,-,:; :z G) '" -"•" ~o r~ r•1~ 0-< cg 0 ,- 0 7.J 0) 4 4 of 4 f"'l" :;o;;

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.