Opinion
INDEX NO. 510351/2018
05-24-2019
HUDSON 418 RIVER ROAD, LLC, Plaintiff, v. SAFIYA CONSULTANTS INC., ABIED CONSTRUCTION INC., BROOKLYN BROADWAY MASJID & ISLAMIC CENTER, S.M. G HOSSAIN, MOHAMMAD ULLAH, BIJOY CONSTRUCTION CORP., MD A ALI, ASHRAF ALI PE PC., MICAH KWASNIK, ALI H. DAFALLA, IMAM ABDEL HAFID DIEMIL, MOHAMMAD AHMED, GULZAR HOSSEIN, HARBOR VIEW ABSTRACT INC., Defendants
NYSCEF DOC. NO. 97 Decision and order MS # 5 & 6 PRESENT: HON. LEON RUCHELSMAN
The plaintiff has once again moved seeking discovery concerning books and records and financials pursuant to discovery demands that have been served. The defendants oppose the motion arguing notices concerning any outstanding discovery were not served upon them. In addition, Micah Kwasnik Esq. moves seeking to dismiss the complaint on the grounds the allegations fail to state any cause of action. The motions have been opposed respectively, papers were submitted by the parties and arguments held. After reviewing all the arguments, this court now makes the following determination.
As recorded in prior orders, property located at 986 Gates Avenue in Kings County was owned by Kobas and Solih Realty LLC. On March 13, 2014 the owner entered into a contract to sell half the ownership interest to defendant Brooklyn Broadway Masjid and Islamic Center [hereinafter 'the Masjid']. It is alleged the Masjid did not pay the agreed upon price and that due to the naivete of Mr. Amin Kobas, the principal of the owner, the sale was effectuated in any event. Further, it is alleged the Masjid assumed management of the entire building.
Conclusions of Law
The basis for any claims against defendant Kwasnik are based on the fact that as counsel to Kobas failed to stop the closing from taking place, essentially committing legal malpractice. Indeed, the sixth count of the complaint is a claim for professional malpractice against Kwasnik. It is well settled that a legal malpractice claim must be filed within three years of the alleged malpractice (CPLR §214(6)). Thus, since there is no dispute the closing took place in 2014 and the lawsuit was not commenced until 2018 the claim against Kwasnik cannot be maintained. The plaintiff argues that any defense regarding the statute of limitations has been waived. However, for a defendant to waive the statute of limitations they must fail to raise it in the answer or by appropriate motion (Matter of Augenblick, 66 NY2d 775, 497 NYS2d 363 [1985]). It is true the defendant has waited a few months until this motion has been filed, however, this is the first responsive motion they have filed and other motions, unrelated to Kwasnik, have contributed to a hearing on this issue. Moreover, any fraud claim that has been alleged as to Kwasnik is really a malpractice claim and is thus duplicative of the malpractice claim. Therefore, since the lawsuit has been filed more than three years after the events giving rise to the claim the motion of Kwasnik seeking to dismiss the complaint as to him is granted.
Concerning plaintiff's motion seeking discovery, the defendant opposes the motion essentially on the grounds a further notice alleged to have been sent by the plaintiff was never received by the defendant questioning its authenticity. The court does not take a position whether such notice was in fact ever sent, however, there can be little dispute the defendants have not complied with all discovery as required by prior orders and demands. Therefore, the defendants shall have thirty days from receipt of this order to comply with all of plaintiff's outstanding discovery demands. To facilitate a smooth discovery process all notices or correspondences sent from either party to either party shall also be sent to the court. Of course discovery items themselves need not be sent to the court, rather cover letters indicating correspondence was had between the parties shall be forwarded to the court to verify production. Further, the parties shall reach out to the court after thirty days so a conference can be conducted monitoring the progression of discovery.
So ordered. DATED: May 24, 2019
Brooklyn N.Y.
ENTER:
/s/_________
Hon. Leon Ruchelsman
JSC