Herz v London Indusi LLP

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Herz v London Indusi LLP 2023 NY Slip Op 33683(U) September 15, 2023 Supreme Court, Kings County Docket Number: Index No. 510794/21 Judge: Ingrid Joseph 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. INDEX NO. 510794/2021 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2023 At an IAS lAS Tenn, Term, Part Part 83 of of the the Supreme Supreme Court Court of of At the State of of New in and for the County County held-in York, held New York, the State Adams Street, of Kings, Courthouse, at 360 360 Adams Street, the Courthouse, Kings, at the of day of the ~~ day York, on the New York,on t,?n, l n, New of ,2023 2023.. .. PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. PRESENT: NEW SUPREME COURT COURT OF OF THE THE STATE STATE OF NEW SUPREME KINGS OF KINGS YORK COUNTY OF YORK COUNTY ----------------------------------X -------------------------------------------------------------------------------------------------------)( NON LIBI HERZ HERZ AS ADMINISTRATOR ADMINISTRATOR DEBONIS DE BONIS NON LIBI HERZ ESTHER THE ESTATE EST ATE OF DAVID DAVID HERZ, HERZ, ESTHER HERZ OF THE AS FORMER OF THE THE ESTATE ESTATE ADMINISTRATOR OF FORMER ADMINISTRATOR HERZ, LIBI HERZ, AND LIBI HERZ AND OF DAVID ESTHER HERZ HERZ, ESTHER DAVID HERZ, Plaintiffs(s) Plaintiffs(s) -against-against- ORDER ORDER 510794/21 Index No. 510794/21 No. Index 2, 3 Motion Seq. Seq. 1, 1,2,3 Motion WIDMAIER KARL WIDMAIER LONDON RUSSO, KARL LLP, RUSSO, INDUSI LLP, LONDON INDUSI CORDANO, PLLC, PLLC, JOSEPH JOSEPH INDUSI, INDUSI, ESQ., ESQ., CORDANO, CHRISTOPHER GERACE, GERACE, ESQ., ESQ., SINEL SINEL & CHRISTOPHER OLESEN, PLLC PLLC AND ELLIOT SINEL, SINEL, ESQ. ESQ. AND ELLIOT OLESEN, ). Defendants( Defendants(ss). ---------------------------------------------------------------------)( --------· ---------------------------X --------------------------------- The following following e-filed e-filed papers papers considered considered herein: herein: The Notice of Motion/Affirmation Motion/Affirmation in Support/Memo Support/Memo in Support/ Support/ Notice of Affidavits Annexed/Reply ..... . Annexed/Exhibits Annexed/Reply Affidavits Annexed/Exhibits Affirmation Opposition/Memo in Opposition/ Opposition/ Affirmation in Opposition/Memo Affidavits Annexed ................. . Annexed/Exhibits Annexed Affidavits Annexed/Exhibits NYSCEF E-filed E-filed docs docs NYSCEF 16-32; 110-113 110-113 16-32; 68-84; 97-105; 106-107 106-107 68-84;97-105; Libi Herz, Herz, as Administrator Administrator De De Bonis Bonis Non of the Estate Estate of of David David Herz, Herz, Esther Esther Herz, Herz, as Fonner Former Non of Libi this instant Herz, ("Plaintiffs") Libi Herz, Administrator of the of David and Libi ("Plaintiffs") filed this instant Herz, and Esther Herz, Herz, Esther David Herz, Estate of the Estate Administrator of the malpractice: In the legal malpractice. action for legal of action action causes of asserting causes May 6, 2021 asserting Defendants on May against Defendants action against complaint, Plaintiffs Plaintiffs allege allege that that Defendant Defendant Elliot Elliot Sinel, Sinel, Esq. Esq. and his firm Sinel Sinel and and Olesen, Olesen, PLLC PLLC complaint, recover underlying action them in an underlying (Collectively "Sine!") "Sinel") were action to recover represent them Plaintiffs to represent retained by Plaintiffs were retained (Collectively who sustained Herz, 1 who David Herz,l of David death of damages sustained a fall on wrongful death and wrongful negligence, and malpractice, negligence, medical malpractice, damages for medical Nursing Home. January ·4, 4, 2013 while while he was was a resident resident of of the the Four Four Seasons Seasons Nursing Home. After After his fall he was was January that pronounced deceased was pronounced transported Brookdale University Hospital and Medical Medical Center Center and and was deceased that University Hospital transported to Brookdale Number Index Number under Index 2014, under December 16, same day. The Malpractice action action was 16,2014, was filed on December Medica!Malpractice The Medical same 511915/2014.2 2 The The complaint complaint additionally additionally claims claims that that in 2017, 2017, Plaintiffs Plaintiffs retained retained Defendant Defendant Joseph Joseph 511915/2014. Indusi, Esq., individually individually and as his interests interests may may appear appear in the former fonner firm of of London London Indusi, Indusi, LLP LLP Indusi, Herz. David ofLibi Herz. father ofLibi and father Herz and Esther Herz husband to Esther the husband was the Herz was David Herz Following David David Herz's Herz's passing, passing, Plaintiff Plaintiff Esther Esther Herz Herz became became the the Administrator Administrator of of his estate estate and and subsequently subsequently . Following Herz became Administrator and is currently currently the the Administrator. Administrator. became Administrator Libi Herz 1 2 [* 1] 1 of 9 . FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 INDEX NO. 510794/2021 RECEIVED NYSCEF: 10/20/2023 death accidental death Herz's accidental David Herz's from David benefits from ("Indusi"), recover benefits action to recover separate action them in a separate represent them to represent ("Indusi"), to Action"). Transamerica Action"). ("The Transamerica Insurance ("The Life Insurance life Financial Life Transamerica Financial provided by Transamerica policy provided insurance policy life insurance tentative 501660/2017 3 Thereafter Number 501660/201703 That filed on January Thereafter, , aa tentative Index Number under Index 26, 2017, under January 26,2017, was filed action was That action Judge by Judge held enforceab was held Action was rica Action settlement agreemen agreement t between Transamerica enforceablele by the Transame parties in the between the parties settlement Appellate the Appellate by the affirmed by was affirmed order was Martin's order Judge Martin's Larry order dated dated October 23, 2018. Judge October 23,2018. Martin by order D. Martin Larry D. agreement, settlement agreement, the settlement of the result of As a result Division 29, 2019~ As May 29,2019~ dated May order dated Departme nt by an order Second Department Division Second case, Malpractice case, Medical Malpractice the Medical theory in the death theory of death Plaintiffs cause of different cause under a different suing under from suing barred from were barred Plaintiffs were 2020. 6, 2020. October 6, dated October order dated Graham in an order and Bernard J. Graham Judge Bernard dismissed by Judge was dismissed action was the action and the the what the them what advise them failing to advise negligent in failing Sinel was was negligent Defendan t Sine! that Defendant allege that now allege Plaintiffs now · Plaintiffs and Action and Malpractice Action Medical Malpractice the Medical have on the would have consequences lawsuit would separate lawsuit settling a separate and settling filing and of filing consequences of that allege that also allege Plaintiffs also order. Plaintiffs Graham's order. Judge Graham's was of Judge appeal of their appeal preserve their to preserve failing to negligent in failing also negligent was also and ("RussoKarl and Gerace ("RussoKari Christoph er Gerace and Christopher PLLC and Defendants Cordano, PLLC Widmaier and Cordano, Karl, Widmaier Russo, Karl, lndusi, Russo, Defendants Indusi, in resulted in eventually resulted which eventually consent which without consent Action without Gerace") settling the Transameri~a Action the Transameri~a neg! igent in settling were negligent Gerace") were Gerace's and Gerace's RussoKarl and but for RussoKari that but Plaintiffs state the of their state that Action. Plaintiffs Malpractice Action. Medical Malpractice their Medical barring of the barring and injuries and personal injuries decedent's personal money for decedent's of money negligence, sum of substantial sum recovered a substantial have recovered would have they would negligence, they death. wrongful wrongful death. (Motion Gerace (Motion and Gerace RussoKarl, and Defendants I), Indusi Seq. 2), and RussoKarl, (Motion Seq. Indusi (Motion Seq. 1), (Motion Seq. Sine! (Motion Defendants Sinel (a)(7). and (a)(7). 321 l(a)(l) and CPLR 3211(a)(1) pursuant to CPLR Seq. complaint pursuant Plaintiffs' complaint dismiss Plaintiffs' move to dismiss 3) move Seq. 3) finn his firm nor his he nor neither he that neither argues that motion, argues his motion, of his Defendant support of affirmation in support his affirmation Sine!, in his Defendan t Sinel, \ when 2018 of 20 until M~y of lawsuit until separate lawsuit filed a separate had 18 when counsel or filed separate counselor retained separate Plaintiffs retained that Plaintiffs knowledge that had knowledge or warn or to warn duty to had no duty that he had argues thathe Sinel argues he settlement in the Actio!1.44 Sinei Transamerica Action. the Transamerica the settlement of the learned of he learned viable cause have failed Plaintiffs have that Plaintiffs advise separate Transamerica failed to state state aa viable cause Action and that Transamerica Action the separate Plaintiffs in the advise Plaintiffs have to have tried to he tried that he of action. Additionally, Sinel claims claims that evidence submitted submitted shows shows that documentary evidence the documentary that the Additionally, Sine! of action. the in settling Iridusi's actions that Iridusi's but that the settlement vacated once he was substituted as counsel, counsel, but actions in settling the was substituted vacated once the settlement Action Malpractice Action Medical Malpractice the Medical i~ the resulted in Transamerica off a chain chain of of events events that ultimately resulted that ultimately Action set off rica Action Transame being dismissed.s 5 being dismissed. same the same make the Gerace make RussoKarl and Gerace Indusi, RussoKarl In Defen9ants Indusi, motion, Defendants to Sinel's motion, opposition toSinel's their opposition In their the of the dismissal of the dismissal them for the responsibility to them sole responsibility argument transfer sole attempting to transfer Sine! is attempting that Sinel which is that argument which Christopher Defendant Christopher and Defendant LLP and lndussi LLP London lndussi At partner at London was a partner Esq. was lndussi, Esq. Joseph lndussi, Defendant Joseph time, Defendant the time, At the Defendants exist. to ceased since has LLPTinn Gerace, firm. The exist. Defendants Indussi LLP firm has since ceased London lndussi The London the firm. associate at the an associate was an Esq. was Gerace, Esq. · · RussoKarl. Defendant RussoKarl. work for Defendant now work Joseph Gerace now Christopher Gerace and Christopher Esq., and Indusi, Esq., Joseph Indusi, 3 the but the Action, but Transamerica Action, the Transamerica of the aware of became aware It is unclear Sine! became Defendant Sinel how Defendant or how when or papers when the papers from the unclear from It is the on counsel as substituted then was then substituted as counsel on the and Sine! cease Sinel was Herz and Esther Herz of Esther consent of the consent with the sent with was sent letter was desist letter and desist cease and Transamerica Action. ica Action. Transamer 4 4 -22 [* 2] 2 of 9 INDEX NO. 510794/2021 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2023 Medical Malpractice Malpractice Action, Action, but but since since they they did not represent represent Plaintiffs Plaintiffs in the the Medical Medical Malpractice Malpractice Action, Action, Medical they had no duty duty to advise advise or counsel counsel Plaintiffs Plaintiffs regarding regarding it. Indusi Indusi alleges alleges that that it was was Sinel's Sinel's actions, actions, in they failing to discontinue discontinue the the Transamerica Transamerica Action Action within within the five months months after after being being retained retained to work work on it failing also by abandoning abandoning Plaintiffs' Plaintiffs' appeal appeal of of Judge Judge Graham's Graham's order, order, which which caused caused the the Medical Medical and also Malpractice Action Action to be dismissed. dismissed. Malpractice RussoKarl additionally additionally argues argues that successor to the Indusi London London LLP LLP firm. firm. It argues argues the Indusi that it is not a successor RussoKarl that the retainer retainer agreement agreement between between Plaintiff Plaintiff Esther Esther Herz Herz and the lndussi Indussi law firm for the the Transamerica Transamerica that Action was was for the the limited limited scope scope of of prosecuting prosecuting a claim claim against against the the insurance insurance company company for breach breach of of Action contract regarding regarding failure failure to pay payout death benefits benefits on an accidental accidental death death policy. policy. RussoKarl RussoKarl and Gerace Gerace out death contract states that that before before discovery discovery proceeded proceeded in the the Transamerica Transamerica Action, Action, the parties parties entered entered into settlement settlement states parties agreed negotiations that on or or around around March March 13, 2018, 2018, via via an email email exchange, exchange, the the parties agreed to a negotiations and that were able parties were before the parties settlement for the sum of of$12,500.00. However, before able to finalize finalize the settlement settlement $12,500.00. However, settlement the Indusi documents, Esther Esther Herz sent a cease cease and desist desist letter, letter, dated dated May May 8, 2018, 2018, to the Indusi firm, firm, discharging discharging Herz sent documents, them as her attorneys attorneys and substituting substituting them them with with the Sinel Sinel firm that that same same day. RussoKarl RussoKarl and Gerace Gerace them concede that that Defendant Defendant Sine) Sine! appeared appeared on the Plaintiffs' Plaintiffs' behalf behalf in the the Transamerica Transamerica Action Action and attempted attempted concede rescind the the settlement settlement and proceed proceed with with discovery discovery by filing filing a request request for a preliminary preliminary conference conference on to rescind May 31, 31,2018. However, in July July of of2018, Transamerica filed a motion motion seeking seeking enforcement enforcement of of the 2018, Transamerica 2018. However, May settlement agreement, agreement, which which was was granted granted in the October October 23, 2018, 2018, order order and affirmed affirmed by the Appellate Appellate settlement the that after Division Second Second Department Department by an order order dated dated May May 29, 2019. 2019. RussoKarl RussoKarl and Gerace Gerace state state that after the Division they Action, they the Transamerica defendants in the learned of of the settlement settlement in the Transamerica Action, Action learned Malpractice Action Medical Malpractice the Medical defendants judicial estoppel motions to amend amend their their answers answers to add new new affirmative affirmative defenses defenses including including judicial estoppel and filed motions election of of remedies remedies and and to dismiss dismiss the the Complaint Complaint on the ground ground that that Plaintiffs Plaintiffs could could not not recover recover for election Medical Malpractice Malpractice due due to their their assertion assertion of of accidental accidental cause cause of of death death in the the Transamerica Transamerica settlement. settlement. On Medical October 6, 2020, 2020, Hon. Hon. Bernard Bernard Graham Graham granted granted defendants' defendants' motion motion holding holding that that Plaintiffs Plaintiffs could could not October assert a contrary contrary cause cause of of death death after after resolving resolving the the Transamerica Transamerica Action. Action. It is undisputed undisputed that that Sine! filed a assert Notice of Appeal of the order but appeal, which abandoned. now abandoned. which is now the appeal, perfected the never perfected but never the order Appeal of Notice of opposition to Sinel's Sine!'s motion, motion, Plaintiffs Plaintiffs argue argue that that Justice Justice Graham's Graham's decision decision was wrong wrong and In opposition would have have been been reversed reversed if if Sinel Sinel had appealed appealed the the decision. decision. In his reply, reply, Sinel Sine! asserts asserts that that Plaintiffs' Plaintiffs' would claims that that they they would would be successful successful on appeal appeal are speculative. speculative. Sinel Sine! claims claims he acted acted in a manner manner that that was was claims reasonable and and consistent consistent with with the the law and that that he conferred conferred with with Plaintiffs Plaintiffs and and was was ultimately ultimately advised advised reasonable against moving moving forward forward with with an appeal appeal following following Justice Justice Graham's Graham's decision. decision. Sinel Sinel additionally additionally states states that that against he was obligated to pursue appeal based of the the retainer retainer agreement. agreement. terms of the terms based on the pursue an appeal was not obligated that he With respect Indusi's motion, Indusi, in his affirmation affirmation in support, support, argues argues that motion, Indusi, Defendant Indusi's respect to Defendant cannot be liable liable to Plaintiffs Plaintiffs because because he never never represented represented Libi Herz Herz and he was was never never retained retained by cannot 3 [* 3] 3 of 9 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 INDEX NO. 510794/2021 RECEIVED NYSCEF: 10/20/2023 underlying Medical her at all regarding Plaintiff Esther Esther Herz Herz to represent the Estate Estate or to counsel counsel her regarding the the underlying Medical represent the Plaintiff benefits regarding collecting retained him regarding Malpractice action. Indusi Esther Herz only retained collecting benefits Herz only that_Esther maintains that Indusi maintains Malpractice action. policy, not as a the policy, under the beneficiary under action as a beneficiary under that action brought that she brought that she and that policy and Transamerica policy the Transamerica under the representative of of her her husband's husband's estate. estate. Additionally, Additionally, Indusi Indusi claims claims that that because because the the Transamerica Transamerica Action Action representative transfer amounts the transfer him, the replaced him, who replaced settlement was enforced under of Sinel, Sinel, who amounts to an representation of the representation under the was enforced settlement cannot Plaintiffs cannot that Plaintiffs Indusi states Furthermore, Indusi intervening states that claim. Furthermore, malpractice claim. Plaintiffs' legal malpractice cause to Plaintiffs' intervening cause establish proximate cause against against him because because had had Sinel Sinel filed a motion motion _to to voluntarily voluntarily discontinue discontinue the proximate cause establish have would have the Medical action or in the alternative appealed appealed the incorrect ruling of the Medical Malpractice Malpractice action, action, it would ruling of the incorrect the alternative action London the firm London that the Indusi also Action. Indusi prevented of the also asserts asserts that Malpractice Action. Medical Malpractice the Medical dismissal of the dismissal prevented the should be against it should claims against Plaintiffs claims therefo_re, Plaintiffs Indusi, was dissolved sued, therefore, cannot be sued, 2018 and cannot dissolved in 2018 LLP was lndusi, LLP dismissed. dismissed. become the attorney not become In opposition opposition to Indusi's Sinel argues argues that attorney of of that he did not Defendant Sinel motion, Defendant Indusi's motion, point the that point that at that 2018, and that May 31, 2018, court on May with the court record and filed with executed and was executed consent was the consent until the record until Plaintiffs were were already already bound bound by an enforceable enforceable agreement agreement as evidenced evidenced by by the the October October 23, 2018, 2018, order. order. Plaintiffs the lower notice of Sinel further further states states that despite his opposition opposition and filing filing of of a notice of appeal, appeal, the lower court!s court:s decision decision that despite Sinel Department. Division Second was Second Department. Appellate Division the Appellate affirmed by the was affirmed opposition to Indusi's Indusi's motion, motion, Plaintiffs Plaintiffs argue argue that that lndusi Indusi had had a duty duty to advise advise Esther Esther Herz Herz In opposition best interest. regarding the Transamerica Transamerica settlement settlement was interest. Plaintiffs Plaintiffs also also claim claim that that Indusi's Indusi's her best was in her whether the regarding whether damages, is their damages, proximate cause argument, that alleged intervening of Sinel Sinel were cause of of their were the proximate intervening acts of that the alleged argument, settling the Indus i's negligence was Indusi's irrelevant because question of of fact remains negligence in settling whether it was remains as to whether becaus~ a question irrelevant Transamerica Action Action that that caused caused the the Medical Medical Malpractice Malpractice Action Action to be dismissed. dismissed. Transamerica never an was never there was that there RussoKarl argue With Gerace's motion, argue that motion, RussoKarl RussoKarl and Gerace's respect to RussoKarl With respect Herz Esther Herz because Esther RussoKarl firm because attorney-client Plaintiffs and the RussoKarl between Plaintiffs established between relationship established attorney-client relationship never retained retained them them nor nor was was their their firm involved involved in either either of of the the underlying underlying actions actions brought brought by Plaintiff. Plaintiff. never RussoKarl further further denies denies Plaintiffs' Plaintiffs' allegations allegations that successor in interest interest to the the lndusi Indusi firm their firm is a successor that their RussoKarl malicious acts, failed to establish establish any fraud, fraud, collusions, collusions, malicious acts, or other other sp~cial special have failed Plaintiffs have that Plaintiffs and that circumstances that that would would provide provide a basis basis for alleging alleging privity privity existed existed between between the the firms firms for purposes purposes of of circumstances that Plaintiffs alleging that attorney-client relationship existed. Additionally, RussoKarl states states that Plaintiffs failed failed to Additionally, RussoKarl relationship existed. that an attorney-client alleging the the Sine with the lndusi firm with plead "but for" for" causation of the Indusi SinelI firm in the replacement of the replacement that the causation and that plead "but claims and malpractice claims legal malpractice the legal of the dismissal of Transamerica mandating dismissal cause mandating intervening cause was an intervening Action was Transamerica Action that Sine! Sinel was was ultimately negligent in failing failing to appeal appeal Justice Justice Graham's Graham's decision. decision. ultimately negligent that become the not become that he did not that that In opposition opposition to RusoKarl Gerace's motion, Sinel reiterates reiterates that motion, Sine! RusoKarl and Gerace's agreement attorney record until settlement agreement enforceable settlement bound by an enforceable already bound were already Plaintiffs were the Plaintiffs after the until after ofrecord attorney of 4 [* 4] 4 of 9 INDEX NO. 510794/2021 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2023 deemed was deemed agreement was settlement agreement the settlement appeal, the and that of appeal, notice of of a notice filing of opposition and filing despite his opposition that despite enforceable. enforceable. RussoKarl firm is a the RussoKari that the argue that Plaintiffs argue motion, Plaintiffs In opposition Gerace's motion, RusoKarl and Gerace's opposition to RusoKari RusoKarl submitted by RusoKari evidence submitted any evidence successor negated by any been negated not been which not lndusi firm which the Indusi interest to the successor in interest time. this time. stand at this thus allowed to stand must be allowed the firm must against the claim against their claim thus their failure to state Plaintiff's failure established Plaintiff's have established The state a Defendants have whether Defendants court are whether the court before the issues before The issues documentary sufficient documentary proffered sufficient have proffered viable Defendants have whether the Defendants and whether them and against them action against of action cause of viable cause them. against them. complaint against evidence Plaintiffs' complaint of Plaintiffs' dismissal of entitlement to dismissal establish entitlement evidence to establish where warranted where CPLR 3211 (a)(I Upon dismiss pursuant (a)(1),), dismissal dismissal is warranted pursuant to CPLR motion to dismiss Upon a motion oflaw matter of defense as a matter establishes a defense allegations and establishes documentary law factual allegations plaintiff's factual refutes plaintiff's evidence refutes documentary evidence 314 NY2d 314 New York, 98 NY2d ofNew Life Ins. Co. of (Leon [1994]; Goshum Mutual Life Goshum v Mutual N.Y.2d 83 88 [1994]; Martinez, 84 N.Y.2d (Leon v Martinez, the evidence 2014]).To constitute Dept. 2014]).To 121 A.D.3d constitute documentary documentary evidence, evidence, the evidence A.D.3d 733 [2d Dept. Roth. 121 Brio v Roth, [2002]; Brio reflecting outdocuments reflecting and documents records and judicial records must "unambiguous, authentic, such as judicial undeniable," such authentic, and undeniable," must be "unambiguous, which are of which contents of the contents papers, the other papers, any other of-court contracts, and any deeds, contracts, mortgages, deeds, such as mortgages, transactions such of-court transactions 2010]; Dept. 2010]; 996 [2d Dept. A.D.3d 996 v. Palomino, 78 A.D.3d essentially undeniable Assn. v.Palomino, Ill Assn. Condominium III (Granada Condominium undeniable (Granada essentially documentary evidence not documentary affidavit is not 2017]). An affidavit Dept 2017]). Prott 908 [2d Dept evidence AD3d 908 LLP, 150 AD3d Baglio, LLP, Lewin & Baglio, v. Lewin Pratt v. Zqienen, affidavit (Xu another affidavit such as another because (Xu v Van Zqienen, evidence, such other evidence, controverted by other can be controverted contents can because its contents Fontanetta 2017]; Fontanetta Dept. 2017]; 806 [2d Dept. A.D.3d 806 212 A.D.3d Bell Corp., 152 A.D.3d Phillips v Taco Bell 2023]; Phillips Dept. 2023]; 872 [2d Dept. A.D.3d 872 letters are nor letters testimony nor neither deposition v John i, 73 A.D.3d Similarly, neither deposition testimony are 2010]). Similarly, Dept. 2010]). A.D.3d 78 [2d Dept. Doe 1, John Doe (a)(l) (Cives of CPLR 3211 (a)(1) meaning ofCPLR intended meaning the intended considered (Gives Corp. v within the evidence within documentary evidence considered documentary Scottsdale Services, Inc., v Scottsdale Const. Services, Integrated Const. George 2012]; Integrated Dept. 2012]; A.D.3d 713 [2d Dept. Fuller Co., Inc., 97 A.D.3d George A. Fuller ]). Dept. 2011 2011]). A.D.3d 1160 [2d Dept. ins. Co., 82 A.D.3d not need not court need the court complaint, the the complaint, of the Where allegations of contradicts the allegations evidence contradicts documentary evidence Where documentary of Assn, Inc., v County Branch Conservation assume (West Branch Conservation Assn, County of allegations (West pleaded allegations the pleaded of the truthfulness of the truthfulness assume the A.D.3d Associates. 18 A.D.3d Center Associates, Conference Center Rockland, 1996]; Greene Doral Conference Greene v Doral Dept. 1996]; 547 [2d Dept. A.D.2d 547 227 A.D.2d Rockland, 227 consisting of Allegations consisting Dept 1976]). 429 George, 52 A.D.2d 1976]). Allegations of 939, 941 [2d Dept A.D.2d 939, v. George, Penato v. 2005]); Penato Dept. 2005]); 429 [2d Dept. evidence are not documentary evidence bare contradicted by documentary flatly contradicted claims flatly factual claims well as factual conclusions as well legal conclusions bare legal [2017]; N.Y.3d 137 [2017]; Mexican Grill, Inc., 29 N.Y.3d entitled Chipotle Mexican (Connaughton v Chipotle consideration (Connaughton such consideration any such entitled to any Family Jewish Ed. Dinerman v Jewish Duncan Bd. of of Family 2020]; Dinerman Dept. 2020]; A.D.3d 1321 [2d Dept. LLC, 186 A.D.3d Expositions LLC, Emera! Expositions Duncan v Emeral 987, 989 [2d A.D.3d 987, Rmnjohn, 85 A.D.3d v. Ramjohn, Ni.sari v. & Children's Children's Services 2008]; Nisari Dept. 2008]; A.D.3d 530 [2d Dept. Services Inc., 55 A.D.3d conclusively evidence conclusively proffered evidence Dept 11]). the proffered that the demonstrating that of demonstrating burden of bears the burden defendant bears The defendant ]). The 2011 Dept 20 Ko/chins v 977]; Kolchins NY2d 268 refutes factual allegations allegations (Guggenheimer (Guggenheimer v Ginzburg, Ginzburg, 43 NY2d 268 [I [1977]; plaintiffs factual refutes plaintiff's NY2D 314 [2002]). ofNY, 98 NY2D Life Ins. Co. of Evolution [2018]; Goshen [2002]). Mutual Life Goshen v Mutual NY3d 100 [2018]; Mkts. Inc., 31 NY3d Evolution Mlcts. 5 [* 5] 5 of 9 • FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 INDEX NO. 510794/2021 RECEIVED NYSCEF: 10/20/2023 A legal malpractice malpractice defendant defendant seeking seeking dismissal dismissal pursuant CPLR 3211 (a)(l) (a)(1) must must tender tender documentar documentaryy pursuant to CPLR A legal on did not evidence conclusively conclusively establishing establishing that that the scope scope of of its representati representation not include include matters matters relating relating to to evidence the alleged alleged malpractice malpractice (Id. (ld. at 39; Zhang. Zhang v Lau, Lau, 210 210 J\.D3d A.D3d 829 [2d Dept. Dept. 2022]; 2022]; see also also Shaya Shaya B. B. Pac., Pac., the 2006]). Dept. 2006]). A.D.3d 34 [2d Dept. LLC, 38 A.D.3d Dicker, LLC, LLC v Wilson, Elser, Edelman, & Dicker, Moskowitz, Edelman, Elser, Moskowitz, LLC In addressing addressing Defendant Defendant Sinel's Sinel's motion, motion, the the documentar documentaryy evidence evidence submitted submitted includes includes the the In Notice of October 23, 23,2018, order confirming confirming the the settlement, settlement, the the November 2018, Notice of Appeal, Appeal, the the May May 29, 29, November 6, 2018, 2018, order October 2019, order order by the the Second Second Department Department Appellate Appellate Division Division affirming affirming the the settlement, settlement, and the October October 6, 6, 2019," the resolving the 2020, order order holding holding that that Plaintiffs could not not assert assert a contrary contrary cause cause of of death death after after resolving Plaintiffs could 2020, Transamerica a Action. Action. The The affidavits affidavits submitted submitted in support support of of the Defendant's Defendant's motion motion are not not documentar documentaryy Transameric evidence within within the the meaning meaning of ofCPLR 3211(a)(1). The documentar documentaryy evidence evidence submitted submitted establishes establishes that that l(a)(l). The CPLR 321 evidence the scope scope of of the the retainer retainer agreement agreement was was limited limited to Sinel's Sinel's representatio representationn in prosecuting prosecuting the the Medical Medical the them warn them to warn had a duty Defendarit Sine! that Defendant Malpractice Action utterly refute refute Plaintiffs' allegations that Sinel had duty to Plaintiffs' allegations Action and utterly Malpractice judgment in of the the consequenc consequenceses that that could could result result from the the filing, filing, settling settling and otherwise otherwise obtaining obtaining a judgment in the the of Transamerica a matter. matter. Additionally Additionally, , Plaintiffs Plaintiffs .do not allege allege or provide provide evidence evidence to establish establish that that Defendant Defendant do not Transameric Sinel knew knew about about the the Transameric Transamerica a Action Action before before he was was substituted substituted in as counsel. counsel. Sinel Plaintiffs' Complaint Accordingly, , that that branch of Defendant Sinel's motion seeking to dismiss dismiss Plaintiffs' Complaint motion seekingto Defendant Sinel's branch of Accordingly pursuant CPLR 321 3211l(a)(l) (a)( 1) is granted. granted. pursuant to CPLR In addressing addressing Defendant Defendant Indusi's Indusi's motion~ motion; the the documentar documentaryy evidence evidence submitted submitted includes includes the the In retainer agreement, agreement, the the Transameric Transamericaa· complaint, complaint, the the March March 19, 2019, 2019, qecision, decision, th.e the consent consent to to change change . retainer withdrawal, Defendant the certificate attorney form, form, the the motion motion the enforce the settlement agreement, agreement, the certificate of of withdrawal, Defendant the settlement the enforce attorney Sinel's opposition opposition to the the motion motion to enforce enforce the the settlement settlement agreement agreement in the the underlying underlying action, action, and and his his Sinel's on was notice of of appeal. appeal. The The retainer retainer agreement agreement establishes establishes that that the. the scope scope oflndusi's ofIndusi's representati representation was limited limited notice to prosecuting prosecuting a claim claim for breach breach of of insurance insurance contract contract that that occurred occurred on or about about November November 12, 12, 2015, 2015, to Herz's accidental David Herz's benefit from involving the failure failure of of Transameric Transamerica a to pay Esther Esther Herz Herz a a death death benefit from David accidental involving death policy. However, the the Match Match 19, 19,2019 decision enforcing enforcing the the settlement settlement agreement agreement references references e-mail e-mail 2019 decision policy. However, death ca's counsel exchanges between between Defendant Defendant Gerace, Gerace, and the the Transameric Transamerica a counsel counsel wherein wherein Transameri Transamerica's counsel exchanges wrote in part part "it "it will have have no bearing bearing on her her PI lawsuit. lawsuit. Please Please get her signature," signature," which which seems seems to to indicate indicate wrote with negotiations with while. in negotiations that lndusi Indusi and/or and/or Gerace Gerace may of the separate separate lawsuit lawsuit while known of have known may have that prima facie Transamerica.a. Therefore, Therefore, Indusi Indusi has has failed failed to satisfy satisfy his prima facie burden burden of of utterly utterly refuting refuting the the Transameric Plaintiffs factual factual allegations allegations that that he was was negligent negligent in settling settling the Transameric Transamerica a Action Action ultimately ultimately barring barring Plaintiff's their Medical Medical Malpractice Malpractice Action Action... their motion seeking Accordingly, of Defendant Indusi's motion seeking to dismiss dismiss Plaintiffs' Plaintiffs' Complaint Complaint Defendant Indusi's branch of that branch Accordingly, that l(a)(l) is denied. pursuantto CPLR 321 3211(a)(1) denied. pursuant to CPLR 6 [* 6] 6 of 9 INDEX NO. 510794/2021 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2023 evidence documentary evidence relevant documentary the relevant motion, the In addressing Defendants RusoKarl and Gerace's Gerace's motion, Defendants RusoKarl In addressing retainer agreement The retainer Firm. The Indusi Firm. the Indusi and the Herz and submitted was agreement Esther Herz between Esther agreement between retainer agreement the retainer was the submitted breach of prosecuting a claim was limited establishes scope oflndusi' oflndusi's s representation limited to prosecuting claim for for breach of representation was the scope that the establishes that pay aa death to pay the failure 2015, involving insurance contract contract that occurred on or about about November 12,2015, involving the failure to death November 12, that occurred insurance benefit for David of Esther Esther Herz. Herz. The The retainer agreement t establishe establishes s that that the the RussoKarl RussoKarl retainer agreemen behalf of Herz on behalf David Herz benefit for firm was involved in any any of of the matters matters alleged alleged by Plaintiffs. Plaintiffs. However, However, although although Gerace Gerace retained or involved never retained was never firm argues that that he he had had no duty duty to advise advise or counsel counsel Plaintiffs Plaintiffs regarding regarding the the Medical Medical Malpracti Malpracticece Action, Action, the the argues Match 19, 19,2019 decision enforcing enforcing the the settlement settlement agreemen agreement t references references e-mail e-mail exchanges exchanges between between 2019 decision Match may Gerace may and/or Gerace Indusi and/or that Indusi Defendant t Gerace, Gerace, and the the Transame Transamerica counsel which which seems seems to indicate indicate that rica counsel Defendan failed has failed Gerace has Therefore, Gerace Transamerica. Therefore, with Transamerica. have known known of of the the separate separate lawsuit while in negotiations negotiations with lawsuit while have negligent was negligent that he allegations that factual allegations Plaintiff's factual to satisfy his prima facie he was the Plaintiffs refuting the utterly refuting of utterly burden of facie burden his prima to satisfy Action. Malpractice Action. Medical Malpractice their Medical barring their in settling the ultimately barring Action ultimately Transamerica Action the Transamerica in settling to pursuant to motion to dismiss Accordingly, of Defendant Gerace's motion dismiss pursuant RussoKarl and Gerace's Defendant RussoKarl branch of that branch Accordingly, that prima facie has satisfied CPLR 321 3211(a)(1) granted to the extent that satisfied its prima facie burden burden of of RussoKarl firm has the RussoKarl that the the extent l(a)(l) is granted CPLR utterly Plaintiffs factual factual allegation allegations,s, conclusive conclusivelyly establishin establishingg a defense defense as as aa matter matter oflaw. oflaw. the Plaintiff's refuting the utterly refuting l(a)(7), the When aa party moves to dismiss dismiss a complaint complaint pursuant CPLR 321 3211(a)(7), the standard standard is is whether whether pursuant to CPLR party moves When the pleading states a cause cause of of action, action, not not whether whether the proponent proponent of of the pleading pleading has has aa cause cause of of action action pleading states the (Leon at at 88; 88; Skefa/idis Skefalidis v China China Pagoda AD. 3d 925 [2d Dept. Dept. 2022]); 2022]); Oluwo Oluwo vv Sutton, Sutton, 206 206 Pagoda NY, Inc., 210 AD. (Leon can Whether aa plaintiff 201 O]). Whether Dept. 2010]). A.D.3d 750 750 [2d [2d Dept. Dept. 2022]; 2022]; Sokol Sokol v Leader, AD.3d 1180 1180 [2d Dept. plaintiff can Leader, 74 A.D.3d A.D.3d dismiss (Eskridge to dismiss motion to determining a motion calculus in determining ultimately establish establish its allegation allegations s is is not part of (Eskridge the calculus of the not part ultimately Insurance Company American Insurance Zurich American vv Diocese 1056 [2d Dept. Company vv City City of of · 2022]; Zurich Dept. 2022]; A.D.3d 1056 210 A.D.3d Brooklyn, 210 ofBrooklyn, Diocese of NY3d [2005]). Sachs & Co., 5 NY3d New York, 176 176 AD.3d Goldman, Sachs [2005]). EBC I Inc. v Goldman, 2019]; EBC Dept. 2019]; A.D.3d 1145 [2d Dept. New York, the to the never shifts burden never the burden (a)(7), the On aa motion complaint pursuant .cPLR 32:11 32:11(a)(7), shifts to pursuant to .CPLR dismiss a complaint to dismiss motion to On Rovello vv Orofino party (Sokol non-moving defense asserted asserted by the (Sokol at 1181; 1181; Rovello Orofino moving party the moving rebut a defense party to rebut non-moving party but it plaintiff to submit Realty Co. Inc., 40 NY2d 970 [1976]). [1976]). CPLR CPLR 3211 allows allows a plaintiff submit affidavits, affidavits, but it does does not not NY2d 970 Inc., 40 Realty Co. ). Affidavits oblige him him or or her her to do so on penalty of dismissal dismissal (Id.; Sokol Sokol at 1181 1181). Affidavits may may be be received received for for aa penalty of oblige limited purpose purpose only, only, serving serving normally normally to remedy remedy defects defects in the complaint complaint and and such such affidavits affidavits are are not not to to limited be examined examined for for the the purpose purpose of of determinin determiningg whether whether there there is evidentiar evidentiaryy.support support for the the pleading pleading (Id; (Id.; be an made an not made has not because he has Rovello at 635; Nonon 827). Thus, Thus, a plaintiff plaintiff will not not be penalized penalized because Nonon at 827). Rove/lo at complaint. of its complaint. evidentiaryy showing showing in support support of evidentiar the record and assesses the record court searches the court Unlike summary judgment, searches the assesses the where the judgment, where motion for summary on aa motion Unlike on pleadings the pleadings the adequacy sufficiencyy of of evidence, evidence, on a motion court merely examines the adequacy of of the merely examines the court dismiss, the motion to dismiss, sufficienc pleading is the sufficienc test of (Davis v. [2014]). The The appropriat appropriatee test of the sufficiencyy of of a pleading is 268 [2014]). 262, 268 NY3d 262, 24 NY3d Boeheim, 24 v. Boeheim, (Davis es, or series whether such pleading gives sufficient sufficient notice of the occurrences, series of of transaction transactionss or or transactions, occurrenc the transactions, notice of pleading gives whether such 7 [* 7] 7 of 9 ; . Ii FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 INDEX NO. 510794/2021 RECEIVED NYSCEF: 10/20/2023 our · known to our action known of action cause of any cause of any occurrences elements of requisite elements the requisite whether the proved and whether intended to be proved occurrences intended AD3d 722, 723 [2d Dept I 06 AD3d Masse/lo. 106 Pools, Inc. v. Massello, law can be discerned discerned from its avem1ents averments (V. Gruppa Groppa Pools, Dept 1989]). Dept 1989]). 2013]; Johnson, 147 AD2d AD2d 621 [2d Dept Moore vvJohnson, 2013]; Moore failed attorney failed the attorney that the allege that To state must allege plaintiff must malpractice, a plaintiff legal malpractice, alleging legal action alleging of action cause of state a cause legal the legal of the member of possessed by a member commonly possessed to exercise knowledge commonly and knowledge reasonable skill and ordinary reasonable the ordinary exercise the sustain actual plaintiff to sustain caused the plaintiff proximately causedthe profession and that attorney's breach of this actual and duty proximately this duty breach of that the attorney's profession and Philip 438 [2007]; N.Y.3d 438 Sauer, 8 N.Y.3d Stanisci, Corker, ascertainable (Rudolf v Shayne, Corker, & Sauer, [2007]; Philip Dachs, Stanisci, Shayne, Dachs, damages (Rudolf ascertainable damages Park/ex 2023]; Parklex Dept. 2023]; 699 [2d Dept. A.D.3d 699 S. Baum, & Vitulli, 215 AD.3d Rubano, Baum, Pliskin, Rubano, Schwartzman, Inc. v Pliskin, S. Schwartzman, of ]). A cause Dept.2014 A.D.3d 698 [2d Dept. Associates Williamson Zauderer, 2014]). cause of LLP, 118 A.D.3d Zauderer, LLP, Zulack Williamson Flemming Zulack Associates v Flemming ( Windsor relationship (Windsor attorney-client relationship action of an attorney-client absence of the absence stated in the cannot be stated malpractice cannot legal malpractice action for legal plead Generally, to plead 2001]). Generally, Dept. 2001]). Metal A.D.2d 732 [2d Dept. Schechtman, 286 AD.2d Scott & Schechtman, Fabrications, Ltd. v Scott Metal Fabrications, would action or would underlying action prevailed in the underlying have prevailed would have causation, the allege that that he or she would must allege plaintiff must the plaintiff causation, Schwartzman, PhilipS 442; Philip (Rudolf at 442; not S. Schwartzman, negligence (Rudolf attorney's negligence the attorney's but for the damages, but any damages, incurred any have incurred not have damages" ascertainable damages" and ascertainable claimed "actual Inc. "actual and Furthermore, the claimed 970). Furthermore, Associates at 970). Park/ex Associates Inc. at 703; Parklex A.D.3d 405 [1st Basile, 141 AD.3d LLP v Basile, Berkey, LLP Dreyer & Berkey, have Gallet. Dreyer Rudolph; Gallet, (see Rudolph; calculable (see clearly calculable have to be clearly suffice for a speculation cannot predicated on speculation injuries predicated Dept. 2016]). Conclusory Conclusory allegations allegations of damages or injuries cannot suffice of damages Dept.2016]). A.D.3d LLP, 186 AD.3d Milone, LLP, Bodnar & Milone, malpractice (Philip S. Katsoris v Bodnar Schwartzman, Inc. at 704; Katsoris S. Schwartzman, action (Philip malpractice action 2017]). Dept. 2017]). A.D.3d 698 [2d Dept. ] 504 [2d Dept. Colon;.Sylvain, 151 AD.3d Gall v Colon'-Sylvain, 2020}; Gall Dept. 2020); 1504 commencing a prior to commencing that prior held that In, Grace Grace v. [2014], the Court Court of of Appeals Appeals held N.Y.3d 203 (2014]. Law, 24 N.Y.3d v. Law, I required to action is required underlying action the underlying of the legal appeal of succeed on appeal likely to succeed \vho.is likely party whois action, a party malpractice action, legal malpractice legal bring a legal may bring they may then they succeed, then likely to succeed, press client is not likely the client If the beforehand. If appeal beforehand. their appeal press their malpractice malpractice action without first pursuing appeal (Id.). Consequently, a defendant defendant in a legal malpractice (Id.). Consequently, pursuing an appeal without first malpractice action client that the client by establishing action by the action bringing the action establishing that barred from bringing now barred plaintiff is now that a plaintiff assert that action can assert also successful (Id.; been successful have been likely have failed (Id.; see also would likely that would action, that underlying action, the underlying appeal in the pursue an appeal failed to pursue 2015]). Dept. 2015]). Buczek A.D.3d 1121 [2d Dept. LLP, 127 AD.3d Little, LLP, Dell & Little, Buczek v Dell With respect malpractice. With Here, failed to plead of action respect to action for legal malpractice. cause of viable cause plead a viable have failed Plaintiffs have Here, Plaintiffs Indusi the Indusi interest to the successor in interest RusoKarl, RussoKarl firm is a successor the RussoKari that the statements that conclusory statements Plaintiffs' conclusory RusoKarl, Plaintiffs' malpractice. legal malpractice. claim for legal state a claim firm is insufficient relationship and state attorney-client relationship establish an attorney-client insufficient to establish relationship or attorney-client relationship Plaintiffs failed to allege specific facts existence of of an attorney-client the existence which the facts upon which allege specific have failed Plaintiffs have prevailed in have prevailed would have they would that they privity establish that RussoKarl firm or establish themselves and the RussoKari between themselves exists between privity exists the underlying negligence. RussoKarl' s negligence. but for RussoKarl's action but underlying action While Plaintiffs Additionally, Plaintiffs have failed toplead actual and as.certainable as.certainable damages. damages. While Plaintiffs to plead actual have failed Additionally, Plaii1tiffs the acts of that the acts claims that their claims attach expert affirmation of the support their testimony to support deposition testimony affirmation and deposition attach an expert state in a only state Plaintiffs only individuals negligent, Plaintiffs were negligent, actions were Malpractice actions Medical Malpractice the Medical involved in the individuals involved ·s8 [* 8] 8 of 9 • i INDEX NO. 510794/2021 FILED: KINGS COUNTY CLERK 10/20/2023 02:51 PM NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 10/20/2023 conclusory fashion fashion that that the Medical Medical Malpractice Malpractice action-would adion'would have have resulted resulted in monetary monetary recovery recovery but conclusory but for Sine!, Sinel, lndusi, Indusi, or RusoKarl RusoKarl and Gerace's Gerace's negligence. negligence. Such allegations allegations are insufficient insufficient to establish establish actual actual and ascertainable plead a cause ascertainable damages damages necessary necessary to plead cause of of action action for legal legal malpractice. malpractice. Plaintiffs Plaintiffs also raised raised a separate separate argument argument that that Sinel was negligent negligent in failing failing to appeal appeal Justice Justice Graham's ultimately advised Graham's dismissal dismissal order. order. However, However, Sine) Sinel states states that that he conferred conferred with with Plaintiffs Plaintiffs and ultimately advised against with an appeal review of against moving moving forward forward with appeal following following a review of Justice Justice Graham's Graham's decision. decision. Plaintiffs Plaintiffs do not refute pursue an appeal refute Sinel's Sinel's claim claim or allege allege that that the decision decision to not not pursue appeal with with Sine! Sinel or another another attorney attorney was was outside of of their their purview. purview. The The documentary documentary evidence evidence submitted submitted also establishes establishes that that the scope scope of of his outside representation·did pursuing an appea_l representation'did not not include include pursuing appeal in the Medical Medical Malpractice Malpractice Action Action and that that Sine) Sinel attempted to rescind rescind the settlement settlement once once he was was substituted substitUted in at counsel counsel for the the Transamerica Transamerica Action. Action. attempted Consequently, pied that Consequently, Plaintiffs Plaintiffs have have not not sufficiently sufficiently pled that Defendant Defendant Sine! Sinel failed failed to exercise exercise the ordinary ordinary profession and that reasonable possessed by a member reasonable skill and knowledge knowledge commonly commonly possessed member of of the legal legal profession that the breach of proximately caused breach of this this duty duty proximately caused the Plaintiffs Plaintiffs to sustain sustain actual actual and ascertainable ascertainable damages damages. . . Furthermore, Furthermore, in support support of of their their alternate alternate theory, theory, Plaintiffs Plaintiffs adopted adopted and incorporated incorporated the arguments arguments of of Defendants lndusi, lndusi, RusoKarl RusoKarl and Gerace's Gerace's memorandums memorandums of of law arguing arguing that that that that the the order order was was made made in Defendants error have been been reversed reversed on appeal. error and would would have appeal. By alleging alleging that that the appeal appeal of of the dismissal dismissal order order would would have have succeeded, succeeded, the Plaintiffs Plaintiffs have have failed failed to comply comply with the requirements requirements of of Grace Grace (supra), (supra), which which holds that pursue an appeal. underlying action that the failure failure to pursue appeal. in an underlying action that that was was likely likely to succeed succeed bars a legal malpractice malpractice action. action. Accordingly, hereby Accordingly, it is hereby ORDERED, ORDERED, that that Defendants Defendants Sine) Sinel (Motion (Motion Seq. 1), Indusi lndusi (Motion (Motion Seq. 2), and RussoKarl, RussoKarl, and Gerace Gerace (Motion (Motion Seq. 3) motions motions to dismiss dismiss the Plaintiffs' Plaintiffs' Complaint Complaint are granted granted and the action action is dismissed dismissed against against all Defendants. Defendants.6 6 This This constitutes constitutes the decision decision and and order order of of the court. court. oseph, oseph, J.S.C. J.S.C. Hon. Han. lngnd Ingnd Joseph Joseph Supreme Cowrt Justi98 Justi~ Supreme 6 6 While While Defendants Defendants Indusi Indusi and Gerace Gerace did not not prevail their motions motions to dismiss dismiss pursuant CPLR 3211 (a)(l), (a)(I), they prevail on their pursuant to CPLR establish a right right to dismissal dismissal under under a theory theory of of failure failure to state state a cause cause of of action action pursuant CPLR 3211 (a)(7). (a)(7). pursuant to CPLR did establish [* 9] 9 of 9

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