Opinion
INDEX NO. 155526/13
06-03-2015
CENTRAL PARKING SYSTEM OF NEW YORK, INC., Plaintiff, v. DAVID ROZENHOLC & ASSOCIATES, DAVID ROZENHOLC, ESQ., GARY HOROWITZ, ESQ., DAVID PRITCHARD, ESQ., MICHAEL ROBERTS, ESQ., ROBERTS & ROBERTS, DAVID KRISS, ESQ., and KR1SS & FEUERSTEIN, LLP, Defendants.
Mot. Seq. Nos. 001, 002
DECISION and ORDER
HON. SHLOMO S. HAGLER, J.S.C.:
Motions with sequence numbers 001 and 002 are consolidated for disposition.
In this action for legal malpractice, in motion sequence number 001, defendants David Kriss, Esq. ("Kriss") and Kriss & Feuerstein, LLP ("Kriss & Feuerstein") (together, "Kriss Defendants") move, pursuant to CPLR 3211 (a) (1), (5) and (7), for an order dismissing the complaint of plaintiff Central Parking System of New York, Inc. ("plaintiff or "Centrl Parking").
In motion sequence number 002, defendants David Rozenholc & Associates ("Rozenholc & Associates"), David Rozenholc, Esq. ("Rozenholc"), Gary Horowitz, Esq. ("Horowitz"), David Pritchard, Esq. ("Pritchard"), Michael Roberts, Esq. ("Roberts") and Roberts & Roberts (together, "Rozenholc Defendants") move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint. Plaintiff opposes both motions.
BACKGROUND
This action pertains to a lot located at 140 West 28th Street in Manhattan ("Premises"). Non-party 140 West 28th Street Associates, LLC ("Former Landlord"), was the owner of Premises. On March 16, 2007, Former Landlord executed a lease with non-party 140 West Associates, LLC ("Former Tenant") (see Abbott Affidavit, sworn to on November 14, 2013 ["Abbott Aff."], Exhibit "A" ["Lease Agreement"]).
On March 23, 2007, Former Tenant and plaintiff entered into a management agreement ("Management Agreement"), pursuant to which plaintiff was to operate a parking lot ("Parking Lot") at the Premises (id., Exhibit "B"). On August 1, 2008, Former Tenant and plaintiff entered into the an Extension of Management Agreement, which extended the term of the Management Agreement to July 31, 2009 and, thereafter, on a month to month basis (id., Exhibit "C"). Under the Management Agreement, plaintiff was to operate the Parking Lot and to remit to Former Tenant a so-called operating surplus, which was determined by subtracting operating expenses and plaintiff's management fee of $2,500 from collected parking revenue (id., ¶ 11). In 2009, plaintiff and Former Tenant revised the payment terms, and plaintiff began pre-paying Former Tenant $20,000 a month on the first of a month (id. ¶ 12). Until October 1, 2011, plaintiff allegedly continued to make all required payments to Former Tenant in full (id., ¶¶ 13-14).
In 2010, Former Tenant allegedly stopped making monthly rent payments to Former Landlord. In September 2010, Former Landlord commenced a holdover proceeding ("Holdover Proceeding") against Former Tenant in the Civil Court, County of New York (Index No. L&T 82056/10) (see Shrewsberry Affirmation, dated September 13, 2013 ["Shrewsberry Aff."], Exhibit "B" [Verified Holdover Petition]). The Verified Holdover Petition named Former Tenant as respondent and plaintiff as respondent-undertenant (see id.). In that proceeding, Former Landlord sought: (1) a judgment of eviction, awarding Former Landlord possession of Premises; (2) a judgment against Former Tenant for use and occupancy of not less than $50,000 a month from April 24, 2010 until the date of the judgment; and (3) an award of legal fees (id.).
Pursuant to Notice of Cancellation of Lease, dated April 19, 2010, Former Landlord notified Former Tenant that the Lease would terminate on April 23, 2010.
Plaintiff and Former Tenant retained Rozenholc & Associates to represent them in the Holdover Proceeding (Complaint, ¶¶ 22-23). Apparently, Pritchard, Horowitz, and Rozenholc of Rozenholc & Associates were assigned to that case (id., ¶ 26), and Roberts & Roberts worked with Rozenholc & Associates as co-counsel. Rozenholc & Associates interposed an answer on behalf of plaintiff and Former Tenant (id. ¶¶ 26-27; see also Abbott Aff, Exhibit "E").
Plaintiff alleges that, in the Holdover Proceeding, Rozenholc & Associates: (1) did not advise it that plaintiff and Former Tenant's interests in the Holdover Proceeding were divergent and conflicting; (2) did not advise plaintiff to retain separate counsel; (3) did not request that plaintiff waive Rozenholc & Associates' conflict in representing both parties; (4) did not assert the defense of plaintiff's continuous payments to Former Tenant; (5) throughout the Holdover Proceeding, did not inform the court that plaintiff "never assumed the role of a tenant" and was not in possession of Premises, but was merely acting as a manager on behalf of Former Tenant; and (6) did not move to dismiss the petition as against plaintiff (Complaint, ¶¶ 24-29, 33).
In the Holdover Proceeding, Former Landlord moved for summary judgment, and Former Tenant and plaintiff cross-moved to dismiss the complaint, or, in the alternative, for summary judgment. In a resulting decision and order dated December 21, 2010 ("December 21, 2010 Order"), the court (Engoron, J.), among other things: (1) granted Former Landlord's motion; (2) denied the cross-motion; and (3) directed the clerk to enter a judgment of possession in favor of Former Landlord, and to set for inquest "all monetary issues, including rent, additional rent, use and occupancy, and attorney's fees" (see Shrewsberry Aff., Exhibit "D" [December 21, 2010 Order at 5]). The judgment of possession ("Judgment of Possession") was entered on December 23,2010.
Rozenholc & Associates filed a Notice of Appeal, and, by an order to show cause, moved the Civil Court for a stay of enforcement of the December 21, 2010 Order and Judgment of Possession pending the appeal (see Shrewsberry Aff., Exhibit "E" [Order to Show Cause]).
As a result, the Civil Court: (1) issued a temporary restraining order dated December 29, 2010 staying the enforcement of the December 21, 2010 Order and Judgment of Possession (see id. [Freed, J.]); (2) pursuant to a decision and order dated January 10, 2011, granted the motion and ordered "a stay of the execution of the warrant of eviction pending the determination, at a hearing, of all monetary issues, the amount of the undertaking and the time period for which the undertaking is to be posted" (id., Exhibit "F" [January 10, 2011 Order at 2] [Mendez, J.]); and (3) pursuant to a decision and order dated February 18, 2011, clarified the January 10, 2011 Order, among other things, as follows: "as a condition of the stay pending appeal Respondent shall pay the Use and Occupancy as determined at the hearing to take place on March 4, 2011 on a monthly basis as it becomes due . . . [and] shall post an undertaking for any monetary award for 'additional rent and attorneys fees' as determined at the hearing to take place on March 4, 2011" (id., Exhibit "F" [February 18, 2011 Order at 2, quoting December 21, 2010 Order] [Mendez, J.]).
A hearing was held on March 4, 2011, May 12, 2011, May 17,2011, May 24,2011, and June 20, 2011 (id., Exhibit "G" [a decision and order dated August 31, 2011 at 1 ]). By a decision and order dated August 31, 2011 ("August 31, 2011 Order"), the court (Chan, J.), among other things: (1) awarded Former Landlord "$82,000 for use and occupancy for each month [Former Tenant] was in possession on the premises after the lease was terminated"; (2) "pending appeal, [Former Tenant] was directed to post an undertaking in the amount of $738,000.00 for use and occupancy (for the nine month it was in possession post lease termination)"; (3) awarded Former Landlord "$224,116.69 . . . for attorneys' fees and costs, and interest thereon from the date of entry of this order and decision"; and (4) directed Former Tenant "to post an undertaking in the amount of $224,116.69" (140 W. 28th St. Assocs., LLC v 140 W. Assocs., LLC, 32 Misc 3d 1239[A], 2011 NY Slip Op 51638[U], *12 [Civ Ct, New York County 2011]).
On September 28, 2011, Former Tenant unilaterally assigned to non-party West 28th Street Ground Lease Corp. ("New Tenant") all of Former Tenant's "right, title and interest in and to that certain Agreement of Lease dated May 16, 2007" between Former Landlord and Former Tenant (Shrewsberry Aff., Exhibit "I"). Former Tenant also unilaterally assigned in writing to New Tenant "all of its rights, title and interest in" the Holdover Proceeding and authorized New Tenant "to proceed with the defense of such suit . . . and to execute all papers necessary for the continuation of said suit" (id., Exhibit "H"). Former Tenant also agreed "to fully cooperate with [New Tenant] in arranging for a substitution of counsel and, at [New Tenant's] election, to substitution of [it] in and for [Former Tenant] in" the Holdover Proceeding (id.).
On or about October 1, 2011, plaintiff entered into an agreement, entitled "Parking Lot Management Agreement," with Former Landlord, pursuant to which plaintiff was to manage the Parking Lot (Abbott Aff, ¶ 22; Exhibit "F" [Parking Lot Management Agreement]; see also Tonorezos Affirmation ("Tonorezos Aff."), dated August 30, 2013, Exhibit "B" at 1).
Pursuant to a consent to change attorneys dated October 10, 2011, Kriss & Feuerstein was substituted as attorneys of record for Former Tenant and plaintiff (Shrewsberry Aff, Exhibit "J").
On October 12, 2011, Former Landlord's attorneys, on behalf of Former Landlord, and Kriss & Feuerstein, on behalf of Former Tenant and plaintiff, entered into a so-ordered stipulation ("Stipulation"), pursuant to which, among other things: (1) the appeal from the December 21, 2010 Order and Judgment of Possession was withdrawn; (2) all stays were vacated, and Former Landlord received a right to enforce the Judgment of Possession; (3) Former Tenant surrendered possession of the Premises; (4) Former Landlord reserved "all rights jointly and severally as against both [Former Tenant] and [plaintiff] with respect to any monetary damages including, without limitation, attorneys' fees and use and occupancy"; (5) it was "expressly understood that [Former Landlord] may seek an appropriate monetary judgment as against [Former Tenant] and [plaintiff], jointly [and] severally"; and (6) Former Tenant and plaintiff "acknowledge[d] that in accordance with [the December 21, 2010 Order and Judgment of Possession] a final judgment of possession was issued against both Respondents - and in favor of [Former Landlord] - and that the warrant of eviction should issue forthwith and without any delay" (id., Exhibit "K" [emphasis added]).
Former Tenant and plaintiff.
Plaintiff alleges that Kriss & Feuerstein: (1) advised it to execute the Stipulation even though plaintiff "had no obligation to pay rent or use and occupancy" (Complaint, ¶ 45); (2) "did not advise plaintiff that signing such a stipulation would potentially expose [it] to a claim for use and occupancy in the amount of $82,000 per month" (id., ¶ 46); (3) informed plaintiff "that in signing the stipulation, the matter would be resolved" (id., ¶ 48); and (4) did not advise the court that, from April 2010 to October 1, 2011, plaintiff made all requisite monthly payments to Former Tenant for a total of $525,812.40 (id., ¶¶ 49-50).
In November 2011, Former Landlord entered into a contract with non-party West 28th Street Land Owner LLC ("New Landlord") for sale of the Premises (see Kartez Affirmation, dated November 22, 2013, Exhibit "F"). On February 2, 2012, Former Landlord executed a deed granting ownership of the Premises to New Landlord (id.). Kriss & Feuerstein represented New Landlord in this transaction (id.).
On February 3, 2012, Kriss & Feuerstein allegedly sent a letter, signed by Kriss, to plaintiff, stating that Kriss & Feuerstein was counsel to New Landlord, and that New Landlord became the owner of Premises (see Kriss Affirmation, dated April 24, 2014, ¶¶ 3-4; Exhibit "A").
On April 5, 2012, in the Holdover Proceeding, Former Landlord made a motion seeking an order: (1) directing entry of a monetary judgment as against both Former Tenant and plaintiff, jointly and severally, for use and occupancy in the amount of $492,113.63 plus interest; and (2) directing entry of a monetary judgment as against Former Tenant only, for attorneys' fees and costs in the amount of $224,116.69 in accordance with the August 31, 2011 Order (see Shrewsberry Aff., Exhibit "L" [Notice of Motion and Affirmation in Support]). Former Tenant and plaintiff did not oppose Former Landlord's motion.
By a decision, order, and judgment dated April 24, 2012 (April 24, 2012 Order and Judgment), the court (Chan, J.) granted Former Landlord's motion on default and ordered that: (1) Former Landlord "shall have a money judgment against" Former Tenant and plaintiff, "jointly and severally, in the amount of $492,113.63 for unpaid use and occupancy pursuant to this Court's prior orders"; and (2) Former Landlord "shall have an additional money judgment as against [Former Tenant] only in the amount of $224,116.69 representing the attorneys' fees and costs awarded to [Former Landlord] in accordance with this Court's prior orders" (id., Exhibit "M").
At some point, non-party Tanenbaum Helpern Syracuse & Hirschtritt, LLPP ("Tanenbaum") was substituted as counsel for plaintiff.
Plaintiff's appeal from the April 24, 2012 Order and Judgment was dismissed because that Order and Judgment were entered on default and, hence, were nonappealable (140 W. 28th St. Assoc., LLC v 140 W. Assoc., LLC, 38 Misc 3d 127[A], 2012 NY Slip Op 52360[U], *1 [App Term, 1st Dept 2012]).
Plaintiff alleges that: (1) a judgment in the amount of $492,113.63 was entered against it and Former Tenant, jointly and severally; (2) "Former Tenant defaulted on its obligation to pay any part of the judgment and has no assets"; and (3) plaintiff paid the entire amount of the judgment, in addition to all the monthly payments that it had made to Former Tenant (Complaint, ¶¶ 54-56).
On August 20, 2012, New Landlord and plaintiff entered into an agreement, entitled "First Amendment to Parking Lot Management Agreement" ("Amendment") pursuant to which, among other things: (1) the parties amended the management agreement, dated October 1, 2011, between Former Landlord and plaintiff; (2) extended the term of the agreement to September 30, 2017; and (3) specified monthly payments that plaintiff had to make to New Landlord (see Tonorezos Aff., Exhibit "B"). The Amendment also, in relevant part, provided that:
"The Owner and Manager hereby represent and warrant to each that:
* * *
c. Neither Owner nor Manager has any claims against the other, nor against either party's . . . agents, consultants, attorneys, representatives . . . and any other individuals and entities claiming or acting by through, under or in concert with each respective party hereto in anyway arising out of the Management Agreement or events prior to Owner acquiring title to the Parking Lot including any litigation by Former Owner against Manager"(id. Exhibit "B" ¶ 4 [c]). At the time of drafting and execution of Amendment, Kriss & Feuerstein were attorneys for New Landlord (id., ¶ 19).
Owner is New Landlord, and Manager is plaintiff (see id. at 1).
Former Owner is Former Landlord (see id.).
Plaintiff alleges four causes of action against all defendants: (1) legal malpractice; (2) breach of fiduciary duty; (3) negligence, based on failure to advise the court in the Holdover Proceeding of plaintiff's monthly payments to Former Tenant and to assert defenses on behalf of plaintiff, as a result of which plaintiff was damaged in the amount of $492,113.63 plus attorneys' fees; and (4) negligence, based on failure to ensure that plaintiff was given credit for the payments it made to Former Tenant from April 2010 to October 2011 and failure to advise the court in the Holdover Proceeding that plaintiff continued to make monthly payments to Former Tenant, as a result of which plaintiff was damaged in the amount of $525,812.40 plus interest and attorneys' fees, costs, and disbursements.
Defendants now move to dismiss the complaint.
DISCUSSION
A motion to dismiss, pursuant to CPLR 3211 (a) (1), "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
On a motion to dismiss, pursuant to CPLR 3211 (a) (7), the court "assumes the truth of the complaint's material allegations and whatever can be reasonably inferred therefrom [citation omitted]. The motion should be denied if 'from [the pleading's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (McGill v Parker, 179 AD2d 98, 105 [1st Dept 1992], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
CPLR 3211 (a) (5) provides, in relevant part, that "the cause of action may not be maintained because of . . . release." Legal Malpractice
"To establish a cause of action for legal malpractice, the plaintiff must show that the attorneys were negligent, that their negligence was the proximate cause of the plaintiff's damages, and that the plaintiff suffered actual damages as a direct result of the attorneys' actions" (Franklin v Winard, 199 AD2d 220, 221 [1st Dept 1993]; see also Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257[2008]). "[A] party must show that an attorney failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession" (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300, 303-304 [2001]; see also Marshall v Nacht, 172 AD2d 727, 727 [2d Dept 1991]). "In order to establish proximate cause, plaintiff must demonstrate that 'but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any 'ascertainable damages'" (Leder, 31 AD3d at 267-268; see also Franklin, 199 AD2d at 221).
"In order to recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of
this duty proximately caused plaintiff to sustain actual and ascertainable damages"(Dombrowski v Bulson, 19 NY3d 347, 350 [2012] [internal quotation marks and citation omitted]). Rozenholc Defendants' Motion
Plaintiff alleges that Rozenholc Defendants, without obtaining informed consent from plaintiff and Former Tenant, assumed their joined representation even though their interests were divergent and conflicting (Complaint, ¶¶ 23-25). Plaintiff's other Claims against the Rozenholc Defendants are that they: did not move to dismiss the petition as against plaintiff; did not interpose defenses unique to plaintiff, such as the defense of plaintiff's continuous and timely monthly payments to Former Tenant; did not distinguish in the answer between plaintiff and Former Tenant "and effectively treated them as though they were both tenants"; and did not inform the civil court that plaintiff had no possessory interest in the Premises, but was merely acting as a manager of the Parking Lot (Complaint, ¶¶ 26-28).
An action for legal malpractice requires a showing that the negligence was the proximate cause of the plaintiff's loss or injury (Pellegrino v File, 291 AD2d 60, 63 ). Plaintiff claims that it was damaged because the court entered a judgment in the amount of $492,113.63 for use and occupancy against it. However, there was no claim for use and occupancy asserted against plaintiff during the entire duration that they were represented by the Rozenholc Defendants. (See Complaint ¶¶ 21, 38, 41, 45). The Rozenholc Defendants concluded their representation of plaintiff on October 10, 2011. Two days later, after plaintiff was represented by successor counsel, plaintiff entered into the Stipulation on October 12, 2011, which for the first time exposed plaintiff to liability for payments of use and occupancy. (Complaint ¶45). Based on the Stipulation, New Landlord subsequently moved for summary judgment for use and occupancy against Former Tenant and plaintiff. It is alleged that plaintiff's new attorney, Kriss & Feuerstein, did not oppose the motion and a default judgment in the amount of $492,113.63 was entered against Tenant and plaintiff, jointly and severally. (Complaint ¶55). Former Tenant subsequently defaulted on its payment leaving plaintiff to pay the entire judgment. Inasmuch as the damages incurred by plaintiff were a direct result of the Stipulation and a subsequent summary judgment motion, which occurred after the Rozenholc Defendants concluded their representation of plaintiff, they could not have been the proximate cause of plaintiff's damages and the claims against them must be dismissed, regardless of whether negligence is established (Pellegrino at 63).
Plaintiff also maintains that there was a conflict of interest because the Rozenholc Defendants represented both Former Tenant and plaintiff. However, "[a] conflict of interest, even if a violation of the Code of Professional Responsibility, does not by itself support a legal malpractice cause of action" (Schafrann v N.V. Famka, Inc., 14 AD3d 363 [1st Dept 2005]). As stated previously, any damages asserted by plaintiffs occurred only after the conclusion of representation by the Rozenholc Defendants, and as a direct result of plaintiff entering into the Stipulation on October 12, 2011, when represented by new counsel Kriss & Feuerstein. Therefore, any alleged conflict could not have caused plaintiff's damages, and the complaint must be dismissed as to the Rozenholc Defendants. Kriss Defendants' Motion
Kriss Defendants contend that plaintiff's claims as against them are barred by paragraph 4 (c) of the Amendment, pursuant to which plaintiff released its claims against them.
The first issue is whether paragraph 4 (c) of Amendment is a release. The second issue is, even if it is a release, did plaintiff intend to release the Kriss Defendants from its legal malpractice claim. "No particular form of words is necessary to constitute a valid release, so long as an intention to renounce a claim or discharge a debt is evidenced" (Tams-Witmark Music Lib., Inc. v New Opera Co., 272 App Div 342, 345 [1st Dept 1947], affd 298 NY 163 [1948]). "A release is a provision that intends a present abandonment of a known right or claim" (McMahan & Co. v Bass, 250 AD2d 460, 461 [1st Dept 1998]).
"[A] general release is governed by principles of contract law" (Mangini v McClurg, 24 NY2d 556, 562 [1969]; see also Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 41 [2nd Dept 1983] ["a release is merely a species of contract and, as such, its construction is governed by the same principles of law applicable to other contracts"]). If part of a larger document, a release needs to be construed in the context of the whole document (see e.g. Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595, 598 [1961]). "Although the effect of a general release, in the absence of fraud or mutual mistake, cannot be limited or curtailed, its meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of (Cahill v Regan, 5 NY2d 292, 299 [1959] [citation omitted]). "A release may not be read to cover matters which the parties did not intend to cover" (Kaminsky v Gamache, 298 AD2d 361, 362 [2d Dept 2002] quoting Gale v Citicorp, 278 AD2d 197 [2d Dept 2000].
Here, it is inconclusive whether the parties intended paragraph 4(c) to be a release. The Amendment is the first contract between plaintiff and New Landlord. Its other clauses pertain to the term of this agreement (see Abbott Aff., Exhibit "O" [Amendment, ¶ 1]), the new compensation terms (id., ¶ 2), and plaintiff's agreement to cure certain violations involving Parking Lot (id., ¶ 3). Paragraph 4 of the Amendment begins with "[t]he Owner and Manager hereby represent and warrant to each" and provides that: (1) the "Amendment is a valid, binding, enforceable obligation" (Amendment, ¶ 4 [a]); (2) each party "has the capacity, right, power and authority to execute this Amendment and to perform its respective obligations" (id., ¶ 4 [b]); and (3) neither party "has any claims against the other, nor against either party's ... attorneys" in connection with the Management Agreement or stemming from "any litigation by Former Owner against Manager" (id., ¶ 4 [c]). Paragraph 4 (c) does not contain language of plaintiff abandoning, relinquishing, surrendering, or renouncing any claims that it may have against Former Landlord or its attorneys (see Tams-Witmark Music Lib., Inc., 272 AD at 345; see also McMahan & Co, 250 AD2d at 461; cf. Wells v Shearson/Lehman/American Express, 72 NY2d 11, 16 [1988] ["[t]he release provided that: 'all claims . . . that arise now or hereafter out of the Action . . . shall be compromised, settled, released and dismissed with prejudice'"] [emphasis added]; The Coby Group, LLC v Kriss, 2008 NY Slip Op 31855[U], *3 [Sup Ct, NY County 2008], affd 63 AD3d 569 [1st Dept 2009] [plaintiff "'does hereby: release [certain parties] and their agents and attorneys from any and all liability and accountability . . . with respect to any and all actions, causes of action, suits . . . claims and demands whatsoever, in law or in equity'"] [emphases added]). Read in the context of the Amendment, and absent conclusive language to the contrary, the paragraph in question may merely be a representation by plaintiff and New Landlord that they have no claims against each other stemming from either the Management Agreement that they are renewing or from any lawsuits that Former Landlord brought against plaintiff rather than an actual release.
Even if it could be construed as a release, it cannot be said as a matter of law that Plaintiff intended to release the Kriss Defendants from its legal malpractice claims against them. Read in the context of the entire document, it is certainly questionable whether Plaintiff intended to release its former attorneys, the Kriss Defendants, who were now representing New Landlord, from its legal malpractice claim. Furthermore, Plaintiff claims that they were unaware that the Kriss defendants were now representing New Landlord so they could not have been the intended beneficiary of any purported release. Accordingly, Kriss Defendants' argument that plaintiff's claims against it are barred by paragraph 4 (c) of the Amendment fails. Malpractice Claim
It is undisputed that Kriss Defendants entered into the Stipulation, pursuant to which Former Landlord received a right to seek an entry of monetary judgment against plaintiff, a nominal party to the Holdover Proceeding. Plaintiff also claims that Kriss Defendants failed to oppose Former Landlord's motion made on April 5, 2012, which was granted on default. Kriss Defendants have not conclusively demonstrated that they were no longer plaintiff's attorneys at the time of Former Landlord's motion. A monetary judgment of $492,113.63 was entered against, and satisfied by, plaintiff. Hence, plaintiff has adequately pled a cause of action for legal malpractice, which survives Kriss Defendants' motion (see Franklin, 199 AD2d at 221; Leder, 31 AD3d at 267-268). Other Claims
The other causes of action for breach of fiduciary duty and negligence are based on the same facts as the legal malpractice claim and allege similar damages. Hence, they are dismissed as duplicative (InKine Pharm. Co., Inc. v Coleman, 305 AD2d 151, 152 [1st Dept 2003]).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that, in motion sequence number 001, the motion of defendants David Kriss, Esq. and Kriss & Feuerstein, LLP, pursuant to CPLR 3211 (a) (1), (5) and (7), is granted only to the extent that the second, third, and fourth causes of action are dismissed, and the motion is otherwise denied, and the action is continuing with respect to the first cause of action for legal malpractice; and it is further
ORDERED that defendants David Kriss, Esq. and Kriss & Feuerstein, LLP is directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that, in motion sequence number 002, the motion of defendants David Rozenholc & Associates, David Rozenholc, Esq, Gary Horowitz, Esq, David Pritchard, Esq., Michael Roberts, Esq., and Roberts & Roberts, pursuant to CPLR 3211 (a) (1) and (7), is granted, and the complaint is dismissed as against these defendants, and the Clerk is directed to enter judgment accordingly. Dated: June 3, 2015
ENTER:
/s/_________
J.S.C.