Opinion
2021–04112 Index No. 516045/20
11-01-2023
Shahin GULIYEV, appellant, v. BANILOV & ASSOCIATES, P.C., et al., respondents.
William Pager, Brooklyn, NY, for appellant. Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Matthew K. Flanagan and Alexandra N. Nieto of counsel), for respondents Banilov & Associates, P.C., and Nick Banilov. Gordon Rees Scully Mansukhani, LLP, New York, NY (Brian E. Middlebrook and Christopher C. Song of counsel), for respondent Harlan Wittenstein.
William Pager, Brooklyn, NY, for appellant.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Matthew K. Flanagan and Alexandra N. Nieto of counsel), for respondents Banilov & Associates, P.C., and Nick Banilov.
Gordon Rees Scully Mansukhani, LLP, New York, NY (Brian E. Middlebrook and Christopher C. Song of counsel), for respondent Harlan Wittenstein.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, CHERYL E. CHAMBERS, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated May 17, 2021. The order granted the separate motions of the defendant Harlan Wittenstein and the defendants Banilov & Associates, P.C., and Nick Banilov pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.
The plaintiff retained the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to represent him in connection with an action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident (hereinafter the underlying action). The defendant Harlan Wittenstein was of counsel to the Banilov defendants, assisting with the underlying action. Wittenstein negotiated a settlement with the defendants in the underlying action and conveyed to them that the plaintiff had accepted that settlement. The plaintiff thereafter terminated the Banilov defendants’ services and retained another law firm. The defendants in the underlying action moved to compel enforcement of the settlement. The plaintiff opposed, asserting that he did not authorize Wittenstein or the Banilov defendants to accept the settlement. Following a framed-issued hearing, the Supreme Court granted the motion to compel enforcement, concluding that Wittenstein and the Banilov defendants had the authority to settle the underlying action.
The plaintiff subsequently commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487. Wittenstein and the Banilov defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated May 17, 2021, the Supreme Court granted the separate motions. The plaintiff appeals.
"On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference" ( Angeli v. Barket, 211 A.D.3d 896, 897, 180 N.Y.S.3d 564 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109 ; see Nassau Operating Co., LLC v. DeSimone, 206 A.D.3d 920, 925–926, 171 N.Y.S.3d 528 ).
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 the plaintiff to sustain actual and ascertainable damages" ( Bua v. Purcell & Ingrao, P.C. , 99 A.D.3d 843, 845, 952 N.Y.S.2d 592 ; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C. , 205 A.D.3d 714, 716, 169 N.Y.S.3d 90 ). "The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence" ( Bua v. Purcell & Ingrao, P.C. , 99 A.D.3d at 847, 952 N.Y.S.2d 592 ; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C. , 205 A.D.3d at 716, 169 N.Y.S.3d 90 ). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative" ( Bua v. Purcell & Ingrao, P.C. , 99 A.D.3d at 848, 952 N.Y.S.2d 592 [citations omitted]; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C. , 205 A.D.3d at 716, 169 N.Y.S.3d 90 ). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v. Silverstone , 215 A.D.3d 787, 789, 185 N.Y.S.3d 699 ; Katsoris v. Bodnar & Milone, LLP , 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89 ). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5] ; Reid v. Reid , 198 A.D.3d 993, 994, 157 N.Y.S.3d 52 ; Shifer v. Shifer , 165 A.D.3d 721, 723, 85 N.Y.S.3d 92 ).
Pursuant to Judiciary Law § 487, an attorney who is "guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d 760, 762, 142 N.Y.S.3d 170 ). "A violation of Judiciary Law § 487 requires an intent to deceive" ( Moormann v. Perini & Hoerger, 65 A.D.3d 1106, 1108, 886 N.Y.S.2d 49 ; see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170 ). "Allegations regarding an act of deceit or intent to deceive must be stated with particularity" ( Bill Birds, Inc. v. Stein Law Firm, P.C., 164 A.D.3d 635, 637, 82 N.Y.S.3d 91, affd 35 N.Y.3d 173, 126 N.Y.S.3d 50, 149 N.E.3d 888 ; see CPLR 3016[b] ; Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d 785, 787, 160 N.Y.S.3d 67 ). Here, the plaintiff's allegations that the defendants hid true facts and acted to benefit themselves are conclusory and factually insufficient (see Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d at 787, 160 N.Y.S.3d 67 ; Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170 ).
The parties’ remaining contentions are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court properly granted the separate motions of Wittenstein and the Banilov defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.
LASALLE, P.J., CONNOLLY, CHAMBERS and TAYLOR, JJ., concur.