Opinion
09-26-2017
Noam BARAM, et al., Plaintiffs–Respondents, v. Carl E. PERSON, Defendant–Appellant. Carl E. Person, Third–Party Plaintiff–Appellant, v. John Reilly, et al., Third–Party Defendants, Edward S. Feldman, et al., Third–Party Defendants–Respondents.
Carl E. Person, appellant pro se. Feldman & Associates, PLLC, New York (Edward S. Feldman of counsel), for respondents.
Carl E. Person, appellant pro se.
Feldman & Associates, PLLC, New York (Edward S. Feldman of counsel), for respondents.
FRIEDMAN, J.P., RICHTER, MOSKOWITZ, GESMER, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about February 2, 2017, which denied defendant/third-party plaintiff's (defendant attorney) motion to dismiss the complaint; and order, same court and Justice, entered on or about February 2, 2017, which granted third-party defendants-respondents' motion to dismiss the third-party complaint, unanimously affirmed, without costs.
Plaintiffs alleged in their complaint that defendant attorney was negligent in failing to timely file an underlying malpractice claim in arbitration as against plaintiffs' original attorneys, and that, as a result of such negligence, plaintiffs' late-filed arbitration claim for actual and ascertainable damages was permanently stayed (see Herrick Feinstein LLP v. Baram, 132 A.D.3d 499, 19 N.Y.S.3d 410 [1st Dept.2015] ). These factual allegations, as supplemented by plaintiffs' papers in opposition to defendant attorney's dismissal motion, sufficiently alleged a legal malpractice claim (see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; see Brooks v. Lewin, 21 A.D.3d 731, 734, 800 N.Y.S.2d 695 [1st Dept.2005], lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ; Escape Airports [USA], Inc. v. Kent, Beatty & Gordon, LLP, 79 A.D.3d 437, 913 N.Y.S.2d 47 [1st Dept.2010] ).
Defendant attorney's argument that plaintiffs' papers in opposition to his motion to dismiss lacked evidentiary value because the annexed affidavits were notarized by the third-party defendant attorney (Feldman) and Feldman only submitted affirmations rather than affidavits, is unavailing. Feldman was not a party to plaintiffs' action alleging malpractice, and as such, his submission of affirmations was appropriate, particularly since the causes of action in plaintiffs' action and the third-party action were distinct and independent of one another (see CPLR 2106 ). Also, Feldman did not have a direct, pecuniary interest in the malpractice action, and thus was capable of acting as a notary in that action (see New York State, Department of State, Division of Licensing Services, Notary Public License Law at 7 [June 2016], http://www.dos.ny.gov/licensing/lawbooks/notary.pdf [accessed Aug. 28, 2017] ).
The motion court correctly dismissed the third-party complaint, as the viability of its claims for, among other things, abuse of process, fraud on the court, and tortious interference with advantageous business relationships were wholly undermined by the submissions on the motions.
We have considered defendant attorney's remaining arguments and find them unavailing.