Opinion
Index No. 161147/14
03-30-2016
LESLIE H. KATZ, Plaintiff, v. PAUL LANDSMAN, PAUL LANDSMAN, ATTORNEY AT LAW P.C., and LANDSMAN & FUNK, P.C., Defendants.
Motion Seq. Nos. 001 and 002 DECISION AND ORDER CAROL R. EDMEAD, J .S .C. :
In a legal malpractice action, defendants Paul Landsman (Landsman) and Paul Landsman, Attorney at Law P.C. (Landsman P.C.) move, pursuant to CPLR 3211, to dismiss the complaint as against them; defendant Landsman & Funk (Landsman & Funk) seeks to join this motion (motion seq. No. 001). Plaintiff Leslie Katz (Katz) moves for a default judgment against Landsman & Funk (motion seq. No. 002). The motions are consolidated for disposition.
BACKGROUND
This case arises from Landsman's representation of Katz in a proceeding in Surrogate's Court in a matter involving a trust created by Katz's grandmother. While the complaint is short on dates, it is clear that the representation ended when Katz fired Landsman in November 2008. On November 19, 2008, Landsman sent Katz an email notifying him that he would not spend any more time on the matter until Katz paid an outstanding bill, and Katz responded, on the same day, stating that "[w]e concur that you are not to proceed any further on this case until the matter of your presented bill is resolved" (emphasis in original). Landsman, in an affidavit submitted with the motion to dismiss, stated that "[t]he fee issue was not resolved and I did nothing further on Plaintiff's behalf" (Katz aff, ¶ 3).
There is no dispute as to whether Katz's email constituted termination. Landsman subsequently, in September 2014, brought an action in this court, entitled Landsman v Katz, index No. 652770/14, to recover his fees. That action was before Judge Reed, who granted dismissal without prejudice because Landsman failed to satisfy 22 NYCRR 137. Specifically, Judge Reed held that while Landsman initiated an arbitration in December 2008, he failed "to submit documentary evidence or other proof that a hearing was held before an arbitrator as mandated by 22 NYCRR 137" (Judge Reed's September 30, 2015 decision and order).
Shortly after, Landsman initiated the fees action and nearly six years after terminating him, Katz initiated this action by filing a summons with notice in November 2014. While Landsman brought his action for fees solely as an individual, Katz, in this action, has sued two legal entities associated with Landsman: Landsman & Funk and Landsman P.C. The first, Landsman & Funk, was initially hired by Katz in 2005, but was succeeded by Landsman P.C. when Landsman's partner left the practice of law in June 2007.
Katz's complaint alleges four causes of action, all arising from Landsman's representation: breach of contract, negligence, breach of fiduciary duty and negligent infliction of emotional distress.
DISCUSSION
I. Landsman and Landsman P.C.'s Motion to Dismiss
"When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005] [internal quotations marks and citations omitted]). Here, Landsman and Landsman P.C.'s (together, Landsman) argue that Katz fails to state a claim for breach of contract, breach of fiduciary duty or intentional infliction of emotional distress. Moreover, Landsman argues that Katz's claim for legal malpractice is barred by the statute of limitations.
As to the three non-malpractice claims, Landsman cites to InKine Pharm. Co. v Coleman (305 AD2d 151, 152 [1st Dept 2003]), which upheld the dismissal of breach of contract and breach of fiduciary duty claims, finding them "duplicative, since they arose from the same facts as the legal malpractice claim and allege similar damages." Similarly, Landsman argues that the breach of contract, breach of fiduciary duty, and intentional infliction of emotional distress claims arise out of the same operative facts - namely the allegations that he was ineffective and too acquiescent to the trust's attorneys, and that he eventually tried unsuccessfully to persuade both Katz and the trust's attorneys to pay him from the trust.
As to the legal malpractice claim, Landsman notes that the statute of limitations for this claim, under CPLR 214 (6), is three years. As plaintiff's claim accrued, at latest, in November 2008, when Katz terminated Landsman, this claim is clearly barred, since Katz did not file his summons with notice until November 2014.
Even if the other claims are not dismissed as duplicative, Landsman argues that they are time barred, as they are also subject to the three-year limitation in CPLR 214 (6), since they arise from the same set of facts as the malpractice claim. In supporting this argument, Landsman cites, among others, to Brick v Cohn-Hall-Marx Co. (276 NY 259, 264 [1937] [holding that "in applying the Statute of Limitations we look for the reality, and the essence of the action and not its mere name"]).
Katz does not oppose Landsman's motion and in fact has voluntarily discontinued against Landsman and Landsman P.C. (see interim order dated September 29, 2015) (the Interim Order). As Katz has failed to oppose the joint motion of Landsman and Landsman P.C. he has abandoned his claims against them, and the complaint is dismissed as against these parties (see Perez v Folio House, Inc., 123 AD3d 519, 520 [1st Dept 2014] [failure to address claims indicates an intention to abandon them as bases of liability]).
II. Katz's Motion For a Default Judgment
Analysis of this issue must begin with reiteration of the "general policy favoring dispositions on the merits" (Salles v Manhattan & Bronx Surface Tr. Operating Auth., 224 AD2d 334, 334 [1st Dept 1996]). A reflection of this policy is the standard for vacating a default judgment under CPLR 5015 (a) (1), which allows parties up to a year to move to rescind excusable defaults.
Here, Katz filed the complaint on April 4, 2015. He also agreed to extend, until May 26, 2015, the time for defendants, including Landsman & Funk, to respond to the complaint. Landsman, on May 28, 2015 filed an affirmation requesting that Landsman & Funk be allowed to join the motion to dismiss filed timely by Landsman and Landsman P.C. The following day, May 29, 2016, Landsman filed a notice of cross motion, and it amended that notice of cross motion on June 12, 2016.
The Interim Order directed that "plaintiff shall submit a response to Landsman and Funk's application and arguments adopted by Landsman and Funk within 30 days." Here, there is no basis for a default judgment. Landsman & Funk contends that the delay related to the insurer's decision to cover the defense of Landsman and Landsman P.C., but not Landsman & Funk's defense. Landsman & Funk's delay was short and excusable. There is no question of prejudice since the arguments in the timely motion to dismiss are identical to Landsman & Funk's arguments. In these circumstances, plaintiff is not entitled to a default judgment and the matter should be resolved on the merits.
III. Landsman & Funk's Application To Join The Motion To Dismiss
Here, Landsman & Funk's application to join Landsman and Landsman P.C.'s motion to dismiss is granted. To deny this application, and force Landsman & Funk to make an independent motion, invoking identical arguments to the ones made by Landsman and Landsman P.C., would "exalt[] form over substance" (Orlando v Arcade Cleaning Corp., 253 AD2d 362, 363 [1st Dept 1998]). Any inconvenience to Katz by the application coming two days late was remedied by the Interim Order, which gave Katz additional time to respond to "arguments adopted by Landsman and Funk."
As the application to join is granted, Landsman & Funk's "cross motion" is moot.
Turning to the substance of the arguments, it could not be clearer that Katz's legal malpractice claim is barred by the three-year statute of limitations period under CPLR 214 (6), as this case was filed nearly six years after Landsman was terminated, the last possible date of accrual. Even more stale is Katz's claim for intentional infliction of emotional distress, which is governed by a one-year statute of limitations for intentional torts under CPLR 215 (3) (see Gallagher v Directors Guild of Am., 144 AD2d 261, 262 [1st Dept 1988] [noting that "every appellate court which has considered the New York statutes at issue here has concluded that a claim for damages for an intentional tort is subject to the one-year limitations period").
A review of the complaint makes it equally as clear that Katz's claims for breach of contract and breach of fiduciary duty are duplicative of his claim for legal malpractice, as they rely on the same set of facts and seek the same damages (see Katz's complaint, ¶ 62 [seeking $685,000 plus $1,000,000 in punitive damages for each of the four causes of action]). As these claims are duplicative of the malpractice claim, they must be dismissed (Raghavendra v Brill, 128 AD3d 414, 414-415 [1st Dept 2015]). Thus, Katz's complaint must be dismissed as the legal malpractice and intentional infliction of emotional distress causes of action are barred by the statute of limitations and the breach of contract and breach of fiduciary duty claims are duplicative of the legal malpractice claim.
In an effort to avoid this result, Katz turns to a line of cases that holds that violation of the Judiciary Law § 487, and other intentional torts, are not subsumed by legal malpractice claims when they arise from the same set of facts (see e.g. Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011] [holding that dismissal of a claim under Judiciary Law § 487 was "not duplicative of causes of action alleging legal malpractice, since the statutory claim requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct"]). Katz argues this despite the fact that the complaint does not contain a claim for violation of Judiciary Law § 487. Instead, Katz claims that he could have brought such a claim.
Without moving for relief, Katz suggests that the court could grant him leave to amend the complaint to add claims that have a six-year statute of limitations and an intentional component, such as violation Judiciary Law § 487 and fraud. While this issue is not properly raised, the court briefly points out that, while leave to amend is freely given under CPLR 3025 (b), "in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted," and "[w]here a court concludes that an application to amend a pleading clearly lacks merit, leave is properly denied" (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009] [internal citation omitted]).
While Katz argues that the allegations in the complaint could sustain claims for fraud and a violation of Judiciary Law § 487, that he has simply not labeled them as such, the allegations are far too conclusory to sustain a claim for either of these causes of action (see Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297 [1st Dept 2004] [holding that claims for fraud and violation of Judiciary Law § 487 "were not pleaded with sufficient particularity"]). Even if this were not the case, invoices show that Landsman & Funk stopped working on the case over seven years before Katz filed his summons. Thus, even under a six-year statute of limitations, Katz's speculative claims are also barred by the statute of limitations.
CONCLUSION
Accordingly, it is
ORDERED that defendants' joint motion to dismiss the complaint is granted and plaintiff's complaint is dismissed and the Clerk of the Court shall enter Judgment accordingly; and it is further
ORDERED that plaintiff's motion for a default judgment (motion seq. No. 002) is denied. Dated: March 30, 2016
ENTER:
/s/_________
Hon. CAROL R. EDMEAD, J.S.C.