Opinion
12610 Index No. 25261/19E Case No. 2020-03032
12-10-2020
Edwin CARDE et al., Plaintiff–Respondent, v. Jose Antonio RODRIGUEZ, Defendant–Appellant.
Donovan & Valicenti, Scarsdale (Lawrence Donovan of counsel), for appellant. Joan Iacono, Bronxville, for respondent.
Donovan & Valicenti, Scarsdale (Lawrence Donovan of counsel), for appellant.
Joan Iacono, Bronxville, for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, Shulman, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered January 17, 2020, which granted defendant's motion to dismiss the complaint and denied his application for sanctions, unanimously modified, on the law, to the extent of clarifying that the dismissal of the complaint is with prejudice, and otherwise affirmed, without costs.
The complaint should have been dismissed with prejudice for res judicata purposes. The court addressed plaintiffs' legal malpractice claim and concluded, on the merits, that it did not state a cause of action. There is nothing in the record to indicate that allowing plaintiffs to replead would cure the fundamental deficiencies in their claim (see generally Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13–14, 862 N.Y.S.2d 316, 892 N.E.2d 380 [2008] ). The court did not abuse its discretion in denying defendant's application for sanctions. Although ultimately rejected by the motion court, the legal malpractice claim advanced by plaintiffs was of colorable merit, and nothing suggests that it was made in bad faith or with an intent to harass or injure defendant (see Bloom v. Westereich, 173 A.D.3d 427, 428, 103 N.Y.S.3d 51 [1st Dept. 2019] ; cf. Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 34, 698 N.Y.S.2d 226 [1st Dept. 1999] ).