Opinion
Index No. 525941/2022
09-28-2023
Isaac Hager, Plaintiff, v. Inner Circle Logistics, Inc. d/b/a IC Development, et. al., Defendants,
Unpublished Opinion
PRESENT: Honorable Reginald A. Boddie Justice.
DECISION AND ORDER
Honorable Reginald A. Boddie Justice.
The following e-filed papers read herein: MS 3 NYSCEF Doc Nos. 126-154
Plaintiff herein moves, pursuant to CPLR 3025 (b) and CPLR 1003, to amend the complaint to join the law firm, Philips Nizer, and attorneys Landis and Rosenberg as party defendants; add a cause of action against them for malpractice and prima facie tort; add causes of action against defendants SDC New Windsor Realty LLC, 20 World Trade Way Realty LLC, SDC Hudson Valley Realty LLC and 108 World Trade Way Realty LLC, alleged property sellers, collectively referred to as "SDC Sellers or Defendants" for tortious interference with a contract; amend the caption; deem the Amended Complaint served nunc pro tunc on the parties that appeared in the action; grant leave to serve a supplemental summons and Amended Complaint on the newly joined parties, and other changes.
This decision assumes some familiarity with this case in which plaintiff alleges he was cheated out of one million dollars as a result of a real estate transaction with Jay Rubin, a representative of Inner Circle Logistics ("ICL") for the purchase of certain properties being sold by the SDC Sellers. In sum, plaintiff alleges that the one million dollar deposit, or alleged loan that he placed in escrow, was stolen by the defendants through manipulation by the parties and their attorneys.
The initial complaint alleged six causes of action, breach of contract against ICL, money had and received against ICL, unjust enrichment against ICL, fraudulent inducement against ICL, permanent injunction against Riverside and declaratory judgment against all defendants. Plaintiff now seeks to amend the complaint to include a claim against Philips Nizer, a law firm involved in the transaction, and its attorneys Landis and Rosenberg. Plaintiff also sought to add additional claims against the SDC Defendants. However, subsequent to the filing of the motion, those claims were resolved and consequently withdrawn. Therefore, the court need only address the remaining relief sought, wherein plaintiff seeks to amend the complaint to add malpractice and tort claims against Philips Nizer, Landis and Rosenberg and make additional edits.
CPLR 3025(b) provides that, "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." Generally, "leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit or unless prejudice or surprise results from the delay in seeking leave to amend" (Kruger v EMFT, LLC, 87 A.D.3d 717 [2d Dept 2011]).
Generally, a plaintiff in an action alleging legal malpractice must prove the attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (Casey v Exum, 219 A.D.3d 456 [2d Dept 2023]). Alternatively, "the requisite elements for a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful" (Freihofer v Hearst Corp., 65 N.Y.2d 135, 142 [1985]).
Here, defendants argue, "a threshold inquiry in a legal malpractice claim is whether an attorney-client relationship exists. An attorney may be liable for malpractice to a third party only if there is "near privity" with the third-party. Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence. As defendants aptly acknowledges, citing Gifford v Harley, 62 A.D.2d 5 [3d Dept 1978], an attorney may be held liable to third parties if he or she has been "guilty of fraud or collusion or of a malicious or tortious act."
Plaintiff also agrees and argues, "[w]hile privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances," citing Ginsburg Dev. Cos. v Carbone, 85 A.D.3d 1110, 1111 [2d Dept 2011], Further, plaintiff asserts the subject firm and attorneys were aware of the terms of the money deposit and loan and intentionally evaded their obligations, causing plaintiff to suffer damages. Therefore, the court finds neither the malpractice nor prima facie tort claims palpably improper or devoid of merit at this juncture. Moreover, the additional edits in the proposed amended complaint do not appear to be improper. Accordingly, the motion is granted in its entirety. The amended complaint is served nunc pro tunc as to the previously appearing defendants after service of a copy upon them by efiling within eight days. A summons and amended complaint shall be served upon the new parties pursuant to the CPLR. The caption is amended to read as indicated below.