Brausch v Devery

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Brausch v Devery 2018 NY Slip Op 31937(U) August 7, 2018 Supreme Court, Suffolk County Docket Number: 11-28918 Judge: Denise F. Molia 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. [* 1] SI IC > I H > R Ill-.! URDl::R INDEX No. COPY 11-289 18 CAL. ·o. I 6-010520T SUPREME COURT - STATE OF NEW YORK l.A.S. PART 39 - SUFFOLK COU:JTY PR ES E NT: Hern. DE ·1sE F. i\·IOLIA Acting Justice of the Supreme Cou11 MOTIO l DATE 4-1 1-17 ADJ. DATE 12-19-17 Mot. Seq.# 00 I - MotD ------------------·---------------------------------------------x DANIEL A. BR/\USCH. Plaintiff. RAPPAPORT GLASS GREENE & LEVINE, LLP Attorney for Plaintiff I 355 Motor Parhvay Hauppaugc. New York 11749 DEVERY. DEVERY & DEVERY, PLLC, THE KA UFMAN DOLOW !C fl & VOLUCK. LLP Attorney for Defendants Devery 135 Crossways Park Drive. Suite 201 Woodbury. Nevv York I I797 DEVERY LAW GROU P, P.C., f RAN K /\. RACANO and FRANK A. RACANO, P .C., FRANK A. RACANO. P.C. - against - BRIA. S. DEVERY. STEPHA IE N. Defendants. Attorney for Defendants Racano P.O. Box 140 131 Howard Beach, New York 114 14-0 131 ---------------------------------------------------------------)( I 'pon the follo\\ ing papers numbered I ro ~read on chis motion for sum man judgment: Notice of Motion Order to SIJO\\ Cause and suppClrting papers I - 66 : 'oticc of Cross Motion and ~upporting papers_: Ansm:ring A ffidavils and supporting papers 68 - 82 ; Replying A ffahwits and supporting papers_: Other memoranda of law 76 . 83 - 8-i : (.111d ,1fte1 hea1 i11g counsel i11 su1,pmt .111d oppmc:d to tlie 111otic111) il is. ORDERED that the motion by the defendants Brian S. De,·er). Stefanie"'.'\. Devery. De\'er) & Devery. PLLC. and The Dever) L 1 \\ Group. P.C. for an order pursuant to CPLR 3212 granting summary . judgment dismissing the p lainl ilTs complaint is granted lo the c\tcnt lhaL the complaint against the defendant Stefanie N. De,·ery is dismissed. and all claims or legal malpractice against said defendants. except those in,·oh·ing the entry or c..:c11ai11 judgments in th1: underlying action indicated bdm'. arc dismissed. and is othcrn ise denied. This action was commenccJ to recover <lamages suslui ned by the plaintiff due to the alleged legal malprnclicc of the ckfcndants. It is undisputed that the plaintiff retained the dcfenJnnl De,·er) & Devery. [* 2] Brausch ,. De\'ery Index No. I l-~8918 Page 2 PLLC (the Den!ry lirm) to ddend him. anJ to prosecute ce1tain causes of action against third-parties. in an underlying action cntitkd Agne., Di( 'hial'll u11d .1£.\I Technic.:al Sen•ic.:es. Inc., Plaint(ffs. against A&.-1 .-luro Su/es. Inc. und Doniel .-1 Bruusch. De/i. 11do111s Third-Porty Plaint(ff\-. aguinsl Emesl DiC/1iurn. . F'll!el .\'ational Bank Bunk <d'. lmeric.:u. Xorth Fork Bank. (n:le Finundal ,)'en·h·es. Inc.: .. R.idwl'll 8011111!1'. uncl Christopher .\Jurc.:hese. Third-Party De/<!llllol1f.\. Supreme Court. Suffolk County. Index No. 0~ 16727 (the underlying action ). 1 lmrm:<liald) prior tu the cun11nencement of the underlying action. the plaintiff \.\"aS the owner and sole shareholder of the defendant /\&A Auto Sales. Inc. (A&r\). a used car dealership located in C(.!nterca<.:h. New York. /\ t that time. the third-party Jelendant Ernest DiChiara (E rnest) was crnployecl by A&A, A&A had two bank accou nts with the thirJ-party deren<lant Fleet Nationa l Bank/Bank of l\rr1erica (Fleet). A&A had three bank accounts with the third-party defendant ·orth Fork Bank (N FB). and A&A had retained the third-party defendants Cycle Financial Services, Inc., Richard Bonner, and Christopher Marchese (CFS) to provide certain accounting services to the corporation. ln approximately June 200~. the plaintiff discovered what he believed to be financial improprieties by Ernest. including all~ged forgeries of i\&A checks. The plaintiff filed a nida\'its \.\ ith Fleet indicating that he did not authorize or consent to the maki ng of the signatures on the subject checks. Thereafter. the plaintiff discovered what he believed were additional financial improprieties by Ernt:st. and he filed affidavits with NF13 incLicating that certain checks were forgeries made by Ernest. The plaintiff also discoYercd what he alleges is a fraudulent loan made to A&A by Ernest's mother, the plaintiff in the underlying action. Agnes DiChiara (Agnes). which allegedly allowed fanest to misappropri ate the loan proceeds. Agnes commenced the unJerlying action in January 2005. alleging that the plaintiff and A&A had failed to repay the loan. and that the loan proceeds were to be used. in part, for the plaintiffs personal use. Initiall y. the plaintiff herein vvas represented by a difforent law fim1. which served an amended answer to Agnes· complaint asserting two counterclaims against her. and served an amended third-party complaint asscr1ing causes of action against Ernest, Fleet, NFB. and CFS. On or about No\'ember 3. :2006, Agnes served an amended comp laint in the underlying action which added .I EM Technical Sen ices. Jm:. (.fEM1. a corporalion \\hich she comrnlkd. as a pluintiff. alkeine that sh..: had ddiY..:red a portion of the loan proceeds out of a .IEM bank account (collectively Agncs/.IEM ). By order dated Dct:cmher 11 . 2007. the plaintiffs prior co unsel was permitted to withdn:t\.V. By order dated May 29. 2008. the Court (Pitts . .I . l directed "nc\\· counsel for [f\&A] and I the plaintiffl to serve and file u notice or appearance nn counsel f<.11· all parties before 6''.2 '08." and said parties "'to scn·e [al reply to Flcct·s counterclaim tlll lll' bt.!1~1re 6 1 I .J/()8 ... B;- kttcr dated June 2. 2008. th~ defendant Frank A. Racano (Raca no). fil ed a notice or appearance. \Vith service on all parties. \vhich indicated that the Den!ry firm had been retained as <.:ounsel for thc.: plaintiff and A&A in the underlying action, and that he appeared or counsel 10 the Den!r: tirm . At a <.:onlercnce held nn Sepkmbcr ~- 2008. the alWrtK': !"or Fleet made an ornl appl ication for a defoultjudgment based upon the alleged failure of A&.\ and the plaintiff to sen·e a reply to its countt:rclaim pursuant to the order of :Vlay 29. 2008. /\ so-ordered sti pulation that date. executed h~ all 1xtrtics, inc lud ing Raeann in his capac ity as or counse l to the Devery firm . dirt:cted counsel fo r A&.A. and [* 3] 13rausch ,. Oe\·cry Index Nn. 11-28918 Pagt: 3 the plaintiff to proYide proof or scn·ice or said reply by September 9. 2008. and directed Agncs/JEM "to scr\'e the amended complaint lin the umkrlying action] \\hich was the subject ol'thc courrs 7/ 11 /07 order on or before 9 1 J I 08.'' lherealicr. Agncs/.I EM and 17lcet mo\·ed for default judgments based upon the alleged failure of the De' cry firm to serve responses to their respecti\'e pleadings. In opposing the motions. Ra<.:ano submitted affidavits of service notarized b) him and allegedly signed by a secretary employed by the De\'er> f'i1111. By order dated May 8. 2009. the Court (Pitts . .I.) scheduled a traverse hearing for June I 1. 2009 to determine: \,\'hetlll'r A&A and the plaintiff had timely served an answer to Agnes/JEM · s amended compluint and a rt:ply to the counkrclaim contained in Fleet's verified answer. At the tra\'ersc hearing held before .Justice Pitts on June 11. 2009. Michael A. D' Emidio. Esq. appeared on behalf of Racano. D'Emidio stated Racano ''as of counsel to the Devery firm. that Racano had a conflict and had asked him to appear on Racano 's behalf and that he did not have any witnesses to present. The Court stated that, in setting down the hearing... it was the Court's expectation that the representatives from [A&A and the plaintilll would be calling the legal secretary. who signed the affidavit of service so as to ... esLablish that service was made." After continuing the hearing . .Justice Pitts verbally granted the respective motions for default judgment. and dire<.:ted the parties to submit orders on notice. By short form order dated Ol:to ber 29, 2009. the Court (Pitts . .I.) granted the respective motions for default judgment. directed the clerk of the court to enter the judgments submitted by the parties. struck the answer of A&A and the plaintiff. and dismissed with prejudice all of the third-pa1ty actions and cross claims against the third-party defendants. The Devery firm and Racano did not take any action regarding the order of October 29, 2009 or the entry of the judgments against J\&A and the plaintiff. The plaintiff commenced this action for legal malpractice by the filing of a summon s and complaint on September 13. 2011. In his complaint. the plaintiff alleges that the defendants failed to exercise reasonable care. ski ll and diligence on the plaintiffs behalf: failed to timely submit an answer to the amended comp laint: foiled to timely s ubmit a reply to the counterclaim of Fleet: failed to proper!) <Jetend lhe plaimiff in the um.Jeri) in g accion: foiled to properly pn..l sccute the third-party acti0n: failed lo present testimony at the hearing before Justice Pitts held on June 11. 2009: failed to attempt to adjourn said hearing to properly prepare for it: failed to move to reargue or to appeal the decision rendered hy Justice Pitts at the wnclusion of said hearing: permitted the subjectjudgmcnts to be entered aga inst the plaintiff: alltmed the n.:spcctin~ default motions to be granted: permitted the third-party action lo hL' dismis~cd in its ~ntircty: and 1Hhen-\ isc actt'J careless!). unskillrully. negligently. and not in accordance \\·ith Lhc accepted standards or care anJ the acccpled standards of legal sen ices ordinarily possessed by those holding thcmsdn:s out Lo be aHorn~ys licensed to practice law in Lhe State of Ne\\ York. rhe defendants Brian S. Dc\·cr) ([)c,·cryl. Stdanie N. De\ ct:. th~ DcH~ry fi rm. und The De\-ery Law Gmup. P.C. (lht> Devery Group) (colle<.:tively. the De\·ery defendants) 110\\ 1110\·e for summary judgmelll dismissing the complaint and all cross claims against them. The proponent of a summary judgment motion must make a primu facit: showing or entitlement to judgment as a matter of la\\". t~ndering sufficient evidence to eliminate any material issue of fact (see Alvarez" Prospect Hospital. 68 [* 4] Brausch \' De,·ery Index t'\o. I 1-:28918 Page ..j. N\'2d 310. 508 ~YS:::!d 923 11986]: Wi11egrad 1· Ne"' York U11il'. Med. Ctr.. 64 NY2d 85 1. -l87 NYS2d :fl 6 [ 19851 ). The hurckn then shifts to the party opposing the motion \\'hich must produce eYidentiaf) proof in admissible form suffi cient L requ ire u trial of the material issues o or foct (Roth II Barreto, 189 AD2d 557. 735 J\YS1d 197 [1d Dept 2001 ]: R ebecc/Ji 1• Wltitmore. 172 !\D2d 600. 568 NYS2d 423 [:?.d Dept 19911: 0 'Neill 1 Tow,, of Fisit kill. 134 AD:?.d 487. 521 . YS:::!d '2T2 [:::!d Depr 19871 ). Furthermore. the parties· competing interest must be vie\\ eel ·'in a light most farnrabk to the party opposing the motion·· (ll-tari11e 1~/id/11nd Ba11k, N.A. I' Di110 & Artie 's Automatic Tra11smissio11 Co.. 168 /\ 02d 610. 563 YS2d -t.-t.9 [2d Dept J 990j). Ho\\'cver. mere conclusions and unsubstantiated allegations are insufficient to raise: any triable issues of fact (see Zuckerman 1· Ci~I' of New York. 49 1 Y1d 557. -+27 NYS2d 595 l 1980); Perez 1• Grace Episcopal Cllurcll. 6 /\03d 596. 77-4 NYS2cl 785 r1d Dept '2004]: Rehecchi ''Whitmore. supra). 1 In support of their motion. the De\·cry defendants submit. among other things. the rcle\'ant pkad ings in this action and the underl ying action, the transcripts of the deposition testimony 01· the plaintiff De\'ery. Racano. and nonparty Richard Bonner. 1 numerous documents assoc iated with A&A 's bank accounts and banking transactions. a number of affidavits from experts and notices of expert disc losure, and copies of the relevant orders and judgments referenced herein. At his deposition, the plai ntiff testified that he was the sole o'rner of A&A. that Ernest was his brot h e r- in -lav~. and an employee of the corporation, and that he and Ernest would handle the books and records for A&A. I le stated that Ernest paid the bus inesses· accounts payable by preparing checks for the plaintiff to sign. that Ernest did not have an official title. and that he never allowed Ernest to hold himse lr out as the general manager of A&A. He further stated that he \\'as present al a court proceedi ng brought by the Town of Brookhaven aga inst A&A. and that he did not object when Ernest identified himself as the general manager and operating offi cer of A&A. He indicated that in .lune of 2004 he learned that three checks were \\'ritten on an A&A Fleet checking account with \\'hich he was not familiar. that he spoke "vith the branch manager at Fleet who apologized. told him that Ernest had opened the account, and suggcsteJ that he ca ll the police. The plaintiff further testified that it is not his signature on the certi licate of authority for the Fleet checking account. that l:heck number 93 dra\\.11 on the Fleet check ing accou nt and made out to cash in the amount of $ 17.250 contains Ernest" s signature. and that, until June 2004. he was not aware of the subject checking acctnmt. l le inJicatcd that he had opened a line of crl!c..lit account '' ith Fleet in September ~ 00.2 (I· h:ct LOC). that he had personally guaranteed paym~nt of the linc of credit. and that he later learned that Frncst ha<l nhtained an /\TM card for the Fleet LOC and had made ATM \\'i thdra\·vuls from said accoun t. I le stated that he filed aniJm-its '' ith Flecl indicatirn.!. that certain checks dra"·n on the Fleet chcckine. account and th..: Fleet LOC were forgt'.ries. nn<l that some A&A employees \\ere paiJ with checks made out to cash. The plaimilT rurther testified that he opened three accounts al NFB: namely a chec:king account (\!FB checking). an )JFB eBay account. and a NFB rescn·e account. He stated that he \·isited ~ 1 J<:tion. Bonner \\as" th i ru-pan~ dclcndant anti ;i principal in the third·parl) defcnJ;rn t CFS in the under!) ing ~ [* 5] Brausch v Devery Index No. I J-289l8 Page 5 NFB in June 200.+ anJ spoke \\'ith a \·ice president who indicated something to the crJect that rhe bank knew he was not 'ligning all or the checks drn\\'n on the Nf-B accounts. and that Ernest left A&A t\\'o or three days after that meeting taking all of the rnrporate pnpcnrnrk and hooks \\'hen he left. J-k indicated that he filed affid<l\'ils \\·ith NFB indicating that certain checks drawn on the three ~FB accounts \\ere forgeries. and that StHllC 0 !'the rorgcries appear to reflect payment o r legitimate A&A expenses. The plaintiff l'urther testilieJ that, at so me point. Agnes commenced an action against him and ..-\&A daiming that !>he haJ loaneJ money l~) A&A. that the endorsements by A&...\ on the checks sent by Agnes arc not in his hand\\'riting. :.ind that he did not know \\·h;. the checks ,,·ere <lcposited into A&A' s NFB accounts. Ile stated that he did not know if the JEM checks to J\&A. alleged to be Joans in the amendeJ complaint in the underlying action, were deposited into any A&A accounts. He indicated that. when confronted, Ernest confossed to misappropriating funds from the corporation. that Ernest's mother. Agnes. gave him a check for $ 15.000 lo pennit A&A to pay its . e\\' York State sales ta'\ obligations. and that Agnes stopped payment on the check before it could be credited to A&A 's account. The plaintiff further testified that. after his prior attorney \Yithdrew from representing him in the undt:rlying action. he was refem.~d to the Devery firm. that he spoke with Racano. and that he met \\·ith Devery and Racano two times al their offices. He stated that Oe\'ery and Racano to ld him that they were partners. that Devery ..worked with banks and Mr. Racano was the negotiator. .. and that he signed a retainer agreement and gave them a retainer of$ I 0,000. He indicated that he did not meet or speak with the defendant Stefanie N. Devery regarding the underlying action. that. at some point. Racano told him that he ..had lost the [underlying action] because of my previous attorney that didn"t do something ... and that Racano would not give him his legal file. He asserts that he had a friend go to Riverhead to investigate. and that he learned that Racano 's statement regarding his prior attorney was not true. The plaintiff further testified that. beginning in 2002. CFS was on a monthl) retainer to provide accounting services to A&A. that CFS was '"supposed to come in every couple of months to go through everything and make sure everything was going smoothly:· and that CFS did not write the checks to pay A&:..A. :s ex penscs. I It: ind iCl:llCLI llrnl Ernest hull toh.I him lh<tt t\&A. s bu11h. S li.ltcmcnt:; '"::re bdrli:; mailed <lircctl~ to CFS. that he requested copies of the bank statements in December 2003 or January 2004. approximately six months before he discO\·ercd that Ernest was misappropriating J\&A ·s fund s. and that he never received those bank statements. He stated that r.rncst did not have a job artcnvards. that he did not km>\\' if Ernest haJ any assets. that the judgments against him required him to file for bankruptcy. and that the subject juJgm~nts \\et\~ 1.focharged in bankrupte). De, er) testified that he and his \\ ite \\ere partners in the Oe\·er) Jinn. that Racaim \\·as of counsel tu the linn for l\\'O \\ecks. and tlrnt Racano·s first \\·ork ol"counsel to the Devery linn was for the plaintiff. He stated that Racano\\ as listed as of counsel on the De\ er~ firm ·s letterhead. that he and Racano dro\'e to pick up the file in the underl::. ing action. and that he and Racano met \\ilh the plaintiff thereafter. I le indicated that he introduced himself to the plaintiff at that initial meeting. that he told the plaintiff that he did not practice in the area of li tigation and thnt Racano \\<ls the litigator. that he believes the parties entered into a \\'ritten retainer. and that he told the plaintiff that Racano \\'Ould transfer the retainer to Racano·., office once Racano opened his practice. He indi cated that he Jid nothing further regarding the [* 6] Brausch ,. Devery Index l\o. 11-28918 Pnge 6 litigation alkr thar initial meeting. that he first learned of the dcfoult judgments entered against the plainti IT \\·hen this ace ion was commenced. and that he nen~r Sa\\· Racano· s affidm·it in opposition to Agnes/JENl" s motion ror a default judgment. or the allid~l\'it or SCn'ice attached to A&A and the plaintiffs purported rep I) Lo Fleet's counterclaim. Devery further testiik<l that the subject affidavit or scrvict was signed b) an employee of the De,·ery firm. that he ne,·er saw Racano·s aflida,·it in opposition to the motion for a defaul t judgment dateu December I. 2008 . \\'hi ch ,. as :;igned b) Racano. or counsel. , and that he never in formed the plaintiff rhat Racano 1,vas no longer of coun~el to the Devery firm . At his deposition. Racano testified that he opened his solo practice in 2005. that he acted or counsd to the Dever) rirm. and that he first met the plaintiff ,vhen Devery called him into a conference at the firm· s offices. He stated that the plaintiff signed a retainer agreement with the Devery firm. that he rc\'iewed chc plaintirrs file and reported to Devery that he believed the plaimiff s claims had merit. and that Devery asked him to assist in the handling of the plaintiffs case. He indicated that he did not reca ll whether a reply to Fleet's countercl aim was served on behalf of A&A and the plaintiff pursuant to the order of Justice Pitts dated May 29. 2008. that he did not personally provide proof of service of said reply as directed in the so-ordered stipu lation created at the conference held on September 4, 2008, and that he cannot say whether the employee of the Devery firm he would have asked to serve said proof did so. Racano further testified that he did not recall receiving a letter tO his attention at the Devery firm which inc luded a copy of the amended com plai nt in the underlying action and stated ··kindly interpose an answer on or before the next scheduled conference on October 2. 2008.·· He stated that there was no "ritten termination or his status as or counsel to the Devery firm. that he believes he was still of counsel at the time of the traverse hearing on June I I . 2009. and that he had spoken with Devery about the need fo r the secretary who signed certain attidavits of service to appear at the traverse hearing. He indicated that he met with the plaintiff after Justice Pitts granted the su bject motions fo r default judgment on June 11. 2009. that he ad\'ised the plaintiff of the options available. including an appeal. a motion to reargue. or bankruptcy. and that he be lieved the plaintiff was not able to continue litigating the matter due to a lack of finan ces. Racanl) also testified that the plaintiff eventually requested his file from the Devery firm. that he me! the plainti IT on March I. :20 I 0 lo del iver the file pursuant to De\·ery's direction to return the tile. and that he had the plaintiff sign a file release l'onn. He stated that a change t)f attorney from the Devery firn1 to his firm \\'as newr signed or filed. that he belie,·cs he was paid for his scn·ices in this matter by the DC\\~ry firm and not by the plaintiff and that De,·ery was always kepl informed about the plaintiffs matter. and may have n.~\· iewed some of the documen ts prepared by him . In an aflidm·it dated April ~O . .2007. Ernest swears that h1.· recci,·ed t\\·enty per ct'nt of the shares or stock in /\&A as an inducemen t to manage the corporation. and that he e\ entually 'Nas responsihle for running the operations or A&/\. including purchas ing ne\\· inventory. sell ing motor vehic les. paying tht' hills and payroll. and conducting its banking transactions. I le states that. due to A&/\ 's cash llow problems. he arranged ror loans lhrn1 his mother \\ith the plaimifrs consent. that the proceeds or said loans "'·ere deposited into A&J\ bank accounts and used fo r its operations. and that the plainti ff would instruct him nn occasion to cash coq1orate checks in order to wire l'unds to the plaintiff \\hen he \\as on [* 7] Brnusch " Devery Index . o. 11-28918 Page 7 extende<l stays outside the Unitc<l States. He indicates that the plaintiffs ::.ignature on checks \\'ritten by him \\ere authorized b) the plaintiff and used for legitimate business purposes. At his deposition. Richart! Bohner. incorrectly sued in the underlying action as Richard Bonner. testified that he is the presi<lent of CFS. and that CFS pro\'ided lax preparntilm sen·iccs. performed bank reconciliations. and created summaries of banking transactions for A&J\ from August 2002 to August 2005. He Slated that CFS received A&A"s linanc ial information from Ernest. that it did not conduct auuits of A&A · s finances or re\ ii!\\ 'd10 \\'aS signing checks for the corponHion. and that no one at CFS was aware of any accounting irregularities regarding A&A. In his affidavit. Leonard Fliegel swears that he is a certified public accountant licensed in the State of 1 e,,. York. that he has re,·iewcd certain r~le, ·ant documents regarding this action and the underlying action. and that it is his opinion with a reasonable degree of accounting practice certainty that the CFS defendants acted reasonably and within the standard or care regard ing the services provided to A&A. He states that the standards set forth in the American Institute of Certi lied Pub Iic Accountants Statement on Standards for Ta\: Services No. 3. Certain Procedural Aspects of Preparing Returns provides that an acco untant preparing a company's ta:-: returns may rely in good faith. without verificat ion, on the informat ion provided by the client. He indicates that. under the circumstances herein. an accountant does not conduct a forensic analysis of signatures or endorsements on checks. and that only inconsistencies in the info rmat ion provided by the client wou ld req ui re an accountant to conduct further inquiries. In his affidavit, Richard Feinsilver swears that he is an anorney licensed to practice law in Lhe State of Ne'' York. that he has successful ly prosecuted more than 7.500 consumer and small business bankruptcy cases. and that he has reviewed ce rta in documents and pleadings regarding the pl aintiff s bankruptcy case and this action. He states that. as a result of the til ing of a petition in bankruptcy. the subject judgments entered against the plaintiff are unenforceable. that the plaintiff has been discharged from any obligation to pay the j udgments or the underlying debts. and that the plaintiffs homestead in no longer encumbered by said judgments. I le indicates that it is his opini on with a reasonab le degree of k:gal practic<: ccnainty thut the pluintiff \Ya:> in~ol\'ent prior to th..: ..:ntry of either jud~p1h:nt agoin;:t him. In her affidavit dated February 10. 2007. Agnes swears that she hnd nt least three telephone C()ll\'ersations with the pl a inti ff regard ing the delivery or loans to him and his corporat ion. that he agreed to rcpa) the monies together \\'ith interest. and that he requested an additional loan of S 15.000 on July 9. ~00-L She swtc~ that the plaintiffs knO\vkdge of the loans is cstablisheu by an A&/\ check in repayment signed by the plaintiff. In supron of their motion. the De' er~ defendants also :-.uhmit. among other things. copies of bank statements for the sub.icct uccounts. the ··fraud afficla\'its·· filed by the plaintiff \\'ith Fleet and NFB. copies the refund checks issued by Flcd and \1Ff3 to A&A !'or certain alleged unauthori1.cd ,,·ithdraw~1ls or transaction<;. the plainli tr s expert '' iLncss responses pursuant to CPLR 310 I (d) regarding forgery and durnages. anu the plnimiff~s answers to the Dcn!1: defendants· imerrogatories and first notice t<.1r disw\'ery and inspection. The exhibits re,·eul that neither A&A nor the plaintiff noti lied the banks of the alleged t{)rgerics until .June 2004 or later. and that the testimony or the plaintirrs experts ''ould not or [* 8] Brausch ,. De\ ery Index No. 11-28918 Pngc 8 establish if any of the checks signed by Ernest were used for other than corporak purposes. The exhibits also re,·eal that the plaintiff has admitted he tlid not hme any i:ontact \\'ith the defendant Stefanie N. Devery. and that he docs not have any documt·nt::1ti on n:g<wding F rncst" s assets or insurance. For a defendant in a legal malpractice case to succee<l tm n motion for summary judgment. c\'idence must be presented in admissihlc rorm establishing that the plaintiff is unable to pron: at km;t one of the essential elements or u malpract ice cause or action (Napolitano v Nfarkotsis & Lieberman. 50 AD3tl 657, 855 1 YS2J 593 l2d Dept :008]: Ola~1 ·a 1· Golden . .+5 AD3d 8~3. 8.+6 NYS2d 60.+ l2d Dept 2007]: Ippolito l ' ~lcCorma cA, Damiani, L owe & Jl!fe/1011 . 265 AD2d 303. 696 NYS'.2cl 103 [2d Dept1999J). To establish a cause of action to recover damages for kga l malpracti ce, a plaintiff must pro\'e ( l) that the defendant attorney foiled to exercise that dl!gree of care. ski II. and di Iigence commonly possessed b) a member of the legal community. (1) proximate cause. (3) damages. and (-1.) that the plaintiff would have been successful in the underlying action had the attorney exercised due care ( Tort11rr1 1• S11/lfra11 Papai11 Block NlcGrath & Ct11111avo, P. C.. 21 AD3d I082. 803 NYS2d 571 f]d Dept 2005 ]: Ippolito '' McCormack, Damiani, loive & 1 \lle/1011, s11prn: Volpe 11 Cm~field, 137 AD2d 282. 654 NYS2d 160 (2d Dept 1997]. frdeniec/90 NY2d 802. 660 NYS2d 712 r1997]>. I nitially. the Devery defendants contend that the plaintiff lacks standing to bring thi s action. as the claims against the third-party ddcndants in the underlying action belonged solely ro A&A and that he does not have standing to assert claims of legal malpractice on behalf or A&A. With respect to standing. it is u threshold determ ination. resting in part on po licy considerations. that a person should be a llowed access to the courts to adj udicatc the merits of a particular dispute that satisfies the other justiciability cri teria (see Society of Plastics Indus., Inc. v Coun~)' of Suffolk. 77 NY2d 761. 570 NYS2d 778 [19911). ··Standing ... requires an interest in the claim at issue in the lawsui t that the law will recognize as a sunicient predicate for determining the issue at the litigant's request ... Without ... standing. a party lacks authority to sue .. (Caprer 1• N ussbaum. 36 AD3d 176. 825 'YS'.2d 55 [2d Dept 2006] [internal citations and quotation marks omitted]). It is \veil settled that. in addition to the elements discussed above. the clements or a cause or action for legal malpractice include the ex istence 01 an attorney-cl ien t · rclationsl1 ip b("t wecn Lh1..: plaimi IT uml the ddcmlant ( L indsay ,. P<15ternack TiIker Ziegler IF(l /s h Sta11 t o11 & Romano LLP. 129 AD3d 790. 12 rysJd 124 [2d Dept 20 I 5: Terio 1• Spodek 63 AD3d 719. 880 NYS2cl 679 f2d Dept 20091). and lhat the relationship must exist at the time of the alleged malpractice ( Talmer 11 DmA'e. 9 A D3u 606. 780 NYS2d 85 [Jd Dept 200~ I). I Iere. it is undisputed that the plaintiff rclaineJ the Dcn~r) firm to represent his corporation and him indi' icluall~. and that said tirm remained the attornc) ~lr r~cGrd at all times rek,·anl ht!rcin. The issue of the relmi,·c culpability of the dd'cndants cll1cs not alkr thc:se basic fact that the plnintilTha<l an <.lllorney-c licnt relationship ,,·ith Devery and the De\ en ti rm. is also \\'ell settled that. in general. .. a corporation has a separate legal existence from its shan.:holtlers C\'en ''here the corporat ion is wholly O\\'ncd b) a single indi \'iduar· (fl!atten~f Queens W. De1•. Corp. /t\'ixbot Realty A.ssoc.j. 121 AD3d 903. 905. 995 >JYS2<l 8-L 87 l2d Dept 20 I.+]: quoting Baccash 1· Sayegh. 53 AD3cl 636. 639. 862 NYS:2d 56~. 567 r2u Dept 2008j). With respect to a claim of attome} malpractice. an attorne) is not li able LO third parties. not in pri vit). t~)r harm caused by prnfessional negligence ahscnt fraud. collus ion. malicious ads. or other special circumstances (.\'l'l" l-ln\\C\er. [* 9] Brausch ,. De,·ery In<lex No. I 1-289 J8 Page 9 Ginsburg De1·. Cos., LLC ,, C11rbo11e. 85 AD3d 1110. 926 NYS2d 156 [2d Dept 2011 J: Breen\' law Office of Bmce rt. Barket, P.C.. 52 AD3d 635. 862 YS2d 50 [2d Dept 2008]>. fl is determined that the De\'ery defendants have prima facie established that the causes of action in the underlying action against Ernest. \JFI3 anJ Cf-S belonged solely to A&A. I lo\\e,·er. the Dever) defendants have failed to establish that the plaintiffs rounterdaim againsr Agnes 'JE\f and cause or action against Fleet. or the defenses he ma) ha,·e lmu relatiYc to said adverse parties. are not claims'' hich belong to him as an indi\ idual. Thus. to the extent the plaintiff had an indiYidual causes action or derenses in the underlying action he has swnJing in this actilm for legal malpractice. or It is undisputcu that Racuno. of counsel to Lhc Devery de!cndants who remained the allorncys of re<.:L)l"d for A&A and rhc plaintifI failed to exercise that degree orcare. skill. and diligence commonly possessed b) a member of the legal community. and permitted default judgments to be entered against the plaintiff based upon the bald assertion that he received proceeds of loans from Agnes and JEM when the record establishes that the checks from said parties arc all mat.le payable to A&A. and when hi s sole obligation to Fleet \Vas based on his personal guarantee of the Fled LOC account held by A&A. Where a ddendant seeks summclr! judgment in an action for legal malpractice. the burden is on the movant to estab lish through expert opinion that he or she did not perform below· the ordinary reasonable skill and care possessed by an average member of the legal community (see Cosmetics Plus Group, ltd. ,. Traub , 105 AD3d 134. 960 NYS2d 388 (2d Dept 2013] : Suppiall 1• Kalis/1 . 76 AD3d 829. 907 NYS2d 199 [I st Dept 201 O]). The Devery defendants have not submitted the opinion of an expert to establish that their pcrCormanct: of legal services. if any. met the standard of care applicable herein. Ilowe,·er. an indi,·idual's mf.!re membership in a limited liability company does not make that member li ab le for the tortious acts of another member (Limited Liabil ity Company Law§ 609 [aj). A member may be held individually liable if they participate in the comm ission of a tort in the furtherance of company business (Board of Mgrs. of Beacon Tower Co11domi11ium '' 85 Adams St., LLC, 136 AD3d 680. 25 NYSJJ 233. [2d Dept 20161: Bynum v Keber. 135 AD3cl 1066. 23 NYS3cl 654 rist Dept 2016]). The adduced evidence establishes that Deve1-y" s wife and partner did not participate in representing the plainliffor litigating 1h1.: unucrl) in~ action. Thu:>. th..: Do.:' e1·y J-.:t<.:ndo:rnt::. hun: .:stuhli s hc<l their p1·ima focie entitkmt:nt to sLm1111ary judgml'nt dismissing thc complaint against the defendant Stefanie 0i. Dever.>.: The undersigned lllm· turns to the Dcn:'.r~ defendants· contentions that the plaintiff is unable to pnl\c the remaining dements ol'his cause ornction lor legal malpractice. Initial!). the De\ er) defendants contcml that the plainlirr.s cause of' action fa il s us a matter oflaw because he has foil~d to estahlish that he has sufli!red any pro:'\imately caused damages. A ddcndant 1110,·ing for summary judgment cannot sati-;t~ its initial burden or establishing his or her entitlement thereto men.:-1.> hy pointing to gaps in the plaintiffs case (Co astal Sheet Al eta/ Corp. 1• Martin A .\".HJC., Inc.. 63 AD3d 617. 881 NYS2d -[~..f fl st 1"11e DeH:r: defendant-; do nol submit an: evidcnc..:. neither do the make any r~:;llrding 1h.: pll!>~iblc liabilit; of1hc D~·n~r: Groul' herein. l~Ktual or lega l arguments. [* 10] Brausch ' Dever) Index 'o. 11 -2 8918 Page JO D1.:pt 20091: 2011 ]>. \l'l' '""' Tsekllfl11m•skaya 1• Starrell City. Inc.. 90 \IBJ 909. 935 '\YS2d 128 [2d Dept In ortkr to establ ish a prima facie case or kgal malpractic1.:. a plainriff must tkmonstrate that the breach 0Cth1.: attorncy·s duty proximately caused the plaintiff m:tual anJ ascertainable damages (Yee Leder 1• Spiegel. 9 ~ YJJ 836. 8-W NYS2d 888 [20071: Rwlo(f 1• Slifly11e, Dae/ts, Sta11isci, Corker & Sa uer. 8 Y3<l -D8. 835 l\ YS2d 53412007] ). The De\ cry ddendants co1111.:nd that the alfaJa, it of their expert Richart! Ft.!insih er and thl.! ban"ruptcy petition tiled by the pl.1i111iff con ti rm that the plaintiff \\'as insoh·ent. and that the plainti IT ··,,·ould have cnten.:d bankruptC) n:gardless of' the entry of the judgments .. in the und1.:rl ying act ion. It is nott.!worthy tlHlt Fcinsi lvcr J ocs not slalc that the plaintiWs insolvcncy wou ld inevitably kc.I him lo lilc for bankruptcy iCthe su bjectjudg1m:nts had not b1:en filed against him. They further conh!nd that. as a resu lt of the dischargc of those judgments in bankruptc). the plaintiff has not sutfored am ascertainable dama!!es. l-IO\\'C\'er. the Devcn ddi:ndants han: submitted Lhe plaintitrs . . expert "itness disclosure. which indicates that said expert \\'ill test ii) that the pl a inti ff would not have had to dedan: ban"ruptc) absent the entry of the s u~jec:t judgments. and that the Ii ling of the petition required the plaintiff to surrenJcr all of his non-exempt assets. Thus. there is an issue of fact whether the enlr) of the subject judgments requirl!d the plaintiff to declare bankruptc). Thi! Devery defendants have failed to prima facie establish that the plaintiff cannot pro\'e he has suffered actual and ascertainable proximatd) caused damages. - MoreO\'l.!r. the plaintiff is required to prove that. ··but for'" the attorney· s neg! igence. the plaintiff \\mild have pn.:rniled on the underlying cause of action (see A mBttl·e Corp. '' Da vis Polk & Wardwell. 8 l'{Jd 428. 834 YS'.;d 705 r1007]: Leder I ' Spiegel. suprll: S11oli."i I ' Clare. 8 I AD3d 923. 917 NYS2d 299 [2d Dept 20 I I j). The Dc\'ery delendants contend that A&A is unable to prove its claims for fraud or aidi ng and abetting fraud asserted against Agnes in the underlying action. and that A&A ·s cause of action aga inst Fleet is barred by A&A 's failure to exercise reasonable care in examining its bank statements. discovering forg1.:ries. and timdy noti lying Fleet or the issue (see UCC ~ 4-406 [ 1·1. (21, and [..J.] ). Whether or Ill)! sa id coment ions arc corred. they arc not disposi tivc her1.: in. Th1: question is whether thl.! pluintiffc~>ulJ hu"1.: :;ucc1.:::.:; l'ull ) 1.kfrndcd ugnins l uny ..: la ims ~\ss...: rtin g persona l linbility on hi s parl regarding the bus im:ss operations of A&A. the alleged failure or A&A to excn.: isc due care. or A&A"s interactions" ith Agncs 1 .J E~ I or the third-part~ dcl~ndants in the underlying action. I kn.:. the adduced e,·idem:e cstahlishes thut the Fkct 1.0(' m:count \\i.lS not paiJ by A&:\. that Fleet had issued a credit for the reimbursable losscs w said account due tP improper payments or ''ith<lr:l\\als. and that the plaintiff had personal!~ gunranteed \&.\·s line of credit \\ith Fleet. Thus. the De' er~ JefcnJants h.n e prima focie l!stabl ishcd that the plninti ff eannot pro,·c that he "ould ha\ c pn:' aikd on I lt:et" s eounten:laim agninsl him. l IO\\ c\ er. as noteJ ,1bon~ . the De'w~ defendants ha,·e not cstablished that the plaintiff cannot pro\·\! that he had a tlefonsc agamst. and \\ould haw pre,·ailcd regarding. \ gnes .11· ~rs claim~ that he \\'<lS the recipient or an~ loan Pl\)Cceds indi\ idually. Because summar: ,iudgment Jep1fres th1.: litigant or his or her day in court. it is t:onsidered a ..drastic remedy.. '' hit:h should he inrnked onl~ \\ h1.:n there is no doubt as to the abs1.:nce or triabk i'isucs (Am/re ,, Pomeroy. '5 \. Y2d 36 I. 36..J.. 362 :-.JYS2d 131 f J 97..J.j: £/::.er 1• Nt1u(l11 Co 1111 ~r- 111 t\D2d 212. -t89 "YS:!<l :!..J6 I:!J Dept 1985 I). lndc~J. ,,·here there i ~ any tlnubL as 10 the existence or triable issues. or [* 11] l3rausch v De\·ery Index No. 11-28918 Page 11 ,,.,·here the issue is ~n.~n argunble. the Court must deny the motion (Chi/berg,, Chi/berg. 13 AD3d 1089. 788 NYS2d 533 r-tth Dept 200-tl. rcurgdenied 16 A03J 1181. 792 NYS2d 368 l-+th Dept 2005); Barclay 1· De11ckla. 182 AD2u 658. 582 NYS2d 252 [2d Dept 1992 J: Co/1e11 1• Herb(l/ Co11cepts, file .. I 00 AD2d 175 . ..+73 NYS2d ..+26 rist Oept 198..+]. t{ffc/63 NY2cl 379 . ..+82 >!YS2d ..+57 [198-+1>. lt is determined that the Devery detentlants han~ t!Stablished their prima facie enlitlemcnt to summary judgment dismissing the complaint against the defendant Stdanic >!. De,·ery. and dismissing all daims of legal malpra(tii.:e C:\(~pt those inrnlving the entry of the judgments entered by Agnes :md JEtv!. I h1,·ing established their entitlement to summary judgment dismissing the complaint against rhem to the extent noted. it is incumbent upon the plaintiff lt) produce evidence in admissible form sufficient to rcq uire a trial of thl! material issues of fact (Rotlt i• Barreto. supra: Rebecc/1i i,. Whitmore. supra: 0 'Neill ,. Town of Fisltkill, supra). In opposition to the motion. the plaintiff submits. among other things. his artidm·it. and an affidavit from an expe11 witness. In his affidavit. the plaintiff swears that his damages herein include the loss oChis equit) in t\>\O residential properties that he owned. that all of the attorneys representing him in the underlying action and this action have told him that the claims against him were "ithout merit. and that there is no merit to the claim that he did not sustain actual and ascertainable damages. In his affidavit. Steven G. Pinks (Pinks), an attorney duly admitted to practice in the courts ot' New York State. swears that. in his opinion to a reasonable degree of prolcss ional certainty. the defendants herein .. departed in multiple ways from the required standard or care." l-:le states that his opinions are accurately set forth in the plaintiffs expert wjtness disclosure submitted by the plaintiff. In said disclosure. the plaintiff indicates that Pinks will testit)' that the defendants' failure to answer Agnes/JEM · s amended complaint. to reply to the counterclaim in Fleet's answer. to present proof of service at the tra,·erse hearing before Judge Pitts. and to oppose the respective motions for default judgment were departures from good and acceptable legal practice. In addition. the disclosure states that the entry of the subject judgments were the result of the negligence of the defendants. and that. absent said negligence and deparcurcs. the plaintiff woult.l have prevailed on his counterclaim against Agnes and his third-parry causes or action again~t Ernest. Fkct. NFn. and CFS. lt is ·well settled that the opinion testimon~ or an expert ··must be based on facts in the record or pcr,nnally kn<m n tl) the \vitness·· CW:'<' Hambsc/1 1• New York Ci(I' Tr. Autlt .. 63 NY2d T23 . -t80 I YS2d 19511984] citinx Cas.muo 1• l/agstro111. 5 NY2d 6-+3. 6..+6. 187 l'\YS]d I I 1959]: Slti Pei Fang'' Heng S1111g Real(I' Corp.. 38 .\D3J 5.20. 835 0:YS.2d I 0-t I.2d Dept 2007): Sa11to11i ,. Bertelsma1111 Proper(I'. Inc.. 21 AD3d 712. 800 NYS2d 676 [ I st Dept 2005 IJ. 1\11 exrcrt ··may 1 t reach a condusion by w assuming material facts not supported by the e\·i<lcnce. and ma: not guess ur speculate in dra,,·ing a co nclusion .. (see Slti Pei Fang'' Heng Sang Realty Coq1..rnpru). The expert cli sdosure and Pinks, in setting l<.irth the undisputed fai lures or the defendants to meet the required stand ard or care. ha Ye failed to address the other important issues raised b~ the Dc\'cry defendants and dcterminet.l hy the Court as set forth aboH>. Herc. to thi.:: cxtt!nt that Pinks attempts to render an expert opinion that the plaintilT\\ould ha\ c pre\ ailed on his counterdaim urn.I third-part: causes tll' action. it primaril: consists of theoretical allegations '' ith no independent factual basis: therefore it is rejected as speculatin~. unsubstamiated. and cn 11clll!>OI') (.\ el! Mestric I' :llartillt![. C/ea11i11.f: Co.. J06 ADJd .+.+9. 761 NYS2d 50-+ r1d Dept JOOJ j). [* 12] Brausch \. Den:ry Index o. 11 -28918 Page 12 In addit ion. the plaintiff has failed to address. amo ng other things. the issue of his standing. whether any or the checks signed by Ernest were used for purposes other thnn /\.&A· s business opcrntions. and whether he could ha\'e succeeded in establishing that he \\.OUl<l not ha,·e been held liable unc.kr his personal guaranty regarding the Fleet LOC acrnunt. In addition. the plaintiff does not dispute that certain causes of action in the underlying action belonged snlely to A&t\. Ne\\ York Courts ha\'C held that the fa.ilure to audress arguments proffen.xl b) a mm ant or appdlulll is equi\·aknt to a concession of lht: issue (see J HcNamee Co11str. Corp. 1• Ci(r of New Roc/1elle. 29 f\D3d 5.+.+. 817 l'\\'S2d 295 [2cl Dcpl 20061: Welden 1• Rfrera. JOl A02d 93-L 75.+ NYS2d 698 (3d Dept 20U3j: Hajt!erl!i 1· IFiljolt1159 LLC. 2.+ Misc3d 12.f2fAI. 901 NYS2d 899 [ Sup Ct. Ct. Ct. Bronx County 2009]). According!). the Dever) defendants motion for summary judgment is granted to the extent that the complaint against the defendant Stefanie N. Devery is dismissed. all claims or legal malpractice c~cept those inYol\'ing the judgments entered by Agnes and J EM are dismissed. and is otherwise denied. A.J.S.C. FINAL DISPOSITION _ X _ NON-FI NAL DI SPOSITION

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