Opinion
99 Civ. 2375 (RWS).
November 29, 2000.
ROBERT J. TOLCHIN, ESQ., Of Counsel, JAROSLAWICZ JAROS, New York, NY, for Plaintiff.
JACK BABCHIK, ESQ., Of Counsel, BABCHIK YOUNG, New York, NY, for Defendants.
ANTHONY P. COLAVITZ, ESQ. and SCOTT E. KOSSOVE, ESQ., Of Counsel, L'ABBATE, BALKAN, COLAVITA CONTINI, Garden City, NY, for Defendants.
O P I N I O N
Defendants Milton Schwartz ("Schwartz"), and Grant, Hermann, Schwartz Klinger (the "Schwartz Firm"), and defendant Paul E. Kerson ("Kerson") and Leavitt, Kerson Leffler (the "Kerson Firm"), have moved for summary judgment under Rule 56, Fed.R.Civ.P. dismissing the malpractice complaint of plaintiff Angelo Nobile ("Nobile") on statute of limitations grounds. Nobile has cross-moved for summary judgment seeking a declaration that certain of defendants' actions constitute malpractice as a matter of law and dismissing certain affirmative defenses. For the reasons set forth below, the defendants' motion is granted and the plaintiff's cross-motion is denied.
The Parties
Nobile is a resident of Argentina who made certain real estate investments in New York City.
Schwartz is a bilingual lawyer, a partner of the Schwartz Firm, who advised Nobile in 1988 and undertook to supervise litigation to be commenced on Nobile's behalf by Kerson, a partner in the Kerson Firm.
Prior Proceedings
The complaint in this diversity action alleging legal malpractice, breach of contract, breach of fiduciary duties, and violation of New York Judiciary Law § 487, and seeking a refund of legal fees and an accounting, was filed on April 2, 1998. Various scheduling orders were entered and adjourned.
The instant motions were marked fully submitted on August 16, 2000.
The Facts
The facts set forth below are taken from the parties Rule 56.1 statements, affidavits, and exhibits. What follows is gleaned from these submissions, with any factual inferences drawn in the non-movant's favor.
Nobile was born in Italy and immigrated to Argentina over 40 years ago, has little formal education, but became a successful real estate developer and businessman.
In 1984, Nobile became interested in investing money in real estate located in the United States, and came into contact with Elba LoBuono Mangiaregna ("Mangiaregna") who was a real estate developer and investor in New York. Nobile invested in a real estate joint venture, NOL Realty Corporation ("NOL") for which he received fifty-five percent of the shares in NOL. NOL operated profitably and successfully developed certain properties until 1988.
In 1988, Nobile came to the conclusion that all was not well with NOL and sought to recoup his investment. Unknown to Nobile at the time, it is alleged that Mangiaregna had caused certain parcels of real property that belonged to NOL to be transferred to an individual named Joseph Testani ("Testani") without proper or fair compensation being paid to NOL. Testani was a construction contractor with whom Mangiaregna had significant business and social dealings and with whom Mangiaregna was alleged to have an arrangement to share the proceeds of any property looted from NOL. He died on February 23, 1987.
When Nobile determined that he would not be able to resolve the dispute with Mangiaregna amicably, he sought out counsel to advise him and to commence the appropriate legal proceedings.
Nobile retained the Schwartz Firm to advise him and to take the appropriate steps with respect to NOL and Mangiaregna. Schwartz arranged for Kerson and his firm, the Kerson Firm, to be retained. A retainer agreement of June 20, 1988 provided for a fee of fifteen percent for any recovery pretrial and twenty-five percent for any recovery following commencement of trial preparation, the payment of $15,000 and further provided that Schwartz would supervise the case which would be conducted by Kerson.
Thereafter, Kerson commenced a proceeding on Nobile's behalf,Matter of NOL Realty Corporation, Supreme Court of the State of New York, Queens County, Index No. 11025/88, which sought the judicial dissolution of NOL (the "Dissolution Proceeding"), and which was granted upon the default of Mangiaregna.
In August 1989, Kerson commenced Nobile v. Estate of Joseph Testani, Elba LoBuono Mangiaregna, Diego Mangiaregna and Victor A. Buglione, Supreme Court State of New York, County of Queens, Index No. 16267/89 (the "Supreme Court Action").
The complaint in the Supreme Court Action asserted three causes of action. The first cause of action sought damages for the looting of NOL. The second cause of action sought damages against Buglione, who was an attorney representing NOL. The third cause of action sought damages against the defendant Diego Mangiaregna, Mangiaregna's brother, for assault in which he threatened Nobile with a gun in an effort to induce Nobile to settle his claims against Mangiaregna.
In 1989, Kerson on behalf of Nobile filed a claim in the Surrogate's Court of the State of New York, County of Queens, against The Estate of Joseph Testani (the "Surrogate Court Action").
In November 1989, Buglione, the defendant in the Supreme Court Action, moved to dismiss the first and second causes of action and on February 21, 1990, the Honorable Angelo Grassi granted Buglione's motion dismissing the plaintiff's first and second causes of action.
In June 1990, Kerson entered into a stipulation in the Surrogate Court Action which allowed a supplemental intermediate accounting to be approved, without prejudice to Nobile continuing to assert his claims against the estate. The stipulation incorporated and made part of Surrogate Judge Louis D. Laurino's order of intermediate accounting, dated October 22, 1990, which stated:
Upon the annexed decision dated October 11, 1990 and the annexed Stipulation of all interested parties, and it appearing that N. MICHAEL LO RUSSO, Executor of the Estate of JOSEPH TESTANI had filed his intermediate accounting dated June 15, 1989 and then had filed an amended supplemental petition and account dated September 5, 1999, . . . and said accounting having shown normal rejections by Executor of a pending claim by one ANGELO NOBILE against decedent which is the subject of a Supreme Court action . . .
ORDERED and decreed that CESIRA TESTANI is hereby appointed Administratrix C.T.A. of the Estate of JOSEPH TESTANI and that letters issue to her upon her filing an Oath and Designation . . .
Kerson submitted an affirmation to the Court in the Supreme Court Action and the Surrogate Court Action affirming that Nobile's claims were meritorious.
The defendants in the Supreme Court Action moved to dismiss Nobile's claims and the Honorable Angelo Graci by order dated February 21, 1990, dismissed Nobile's claims against the defendants for having looted the NOL corporation without prejudice to the commencement of a shareholder's derivative action, and the malpractice claims against Buglione were dismissed as shareholder's derivative claims and time-barred by the three-year statute of limitations for negligence actions.
The motion to dismiss claims for assault against Diego Mangiaregna was denied. No shareholder's derivative suit was commenced and no appeal was taken from Justice Graci's order. No action was taken to prosecute the claims against Diego Mangiaregna.
Schwartz and Kerson requested Nobile to provide documentation to evidence his alleged investment and losses in NOL but no documentation was provided. Kerson took the deposition of N. Michael LoRusso ("LoRusso"), the executor and attorney for the Estate of Testani on March 2, 1990. During LoRusso's deposition he testified that the records were in the hands of accountants and had been requested by the Federal Bureau of Investigation ("FBI").
On December 18, 1990, Schwartz wrote to Nobile and advised him that the Court had indicated that the Supreme Court Action would have to be recommenced as a shareholder's derivative action; that in order to make out a shareholder's derivative claim it would be necessary for Nobile to prove how much he invested in NOL; that he and Kerson had concluded that Nobile could not offer clear proof of his investment in NOL, that no shareholder's derivative action would be commenced without such proof, and that with respect to the Surrogate Court Action, essentially the same claims were being advanced and that without better proof of Nobile's investment, those claims would ultimately have to be discontinued as well.
On April 29, 1991, Schwartz again wrote to Nobile and advised that in order to bring a shareholder's derivative suit it would be necessary to prove Nobile's original investment; that any effort to pursue his claims without proof of his original investment could lead to a variety of detrimental consequences, including the imposition of a fine by the court; and that although his claims were for the moment continuing in the Surrogate Court Action, once the Surrogate Court sought proof of Nobile's original investment in NOL, those claims would have to be discontinued as well.
Prior to April 3, 1992, Kerson and Schwartz prepared a letter for Nobile's signature providing as follows:
Re: Angelo Nobile v. Estate of Joseph Testani, Elba LoBuono Mangiaregna, Diego Mangiaregna, and Victor Buglione, Esq. Index No. 16267/89
Dear sirs:
I am aware of your detailed explanation regarding the difficulties that exist with respect to the proceedings of the above referenced case.
I understand the difficulties that exist with respect to the proceedings and instruct that you are not to proceed as my legal representatives in this case.
I understand that the action for the sum of U.S. $1,200,000.00 against the Testani Estate is continuing apace.
Thank you for your efforts.
Sincerely, /s/ Angelo Nobile Angelo Nobile
A meeting was held on October 20, 1992 at the offices of the Schwartz Firm with Nobile, his wife and son, Kerson, and a Schwartz associate, Sally Erickson. At the conclusion of the two-hour meeting, Nobile signed the previously prepared April 3, 1992 letter. On November 9, 1992, Kerson wrote a memo to the file stating:
We patiently explained to Mr. Nobile the extreme danger to his penal interest in proceeding with this case.
Specifically, my deposition of the executor of the Estate of Joseph Testani, M. Michael LoRusso, Esq., revealed that Mr. Testani's business records were seized by the FBI.
Mr. Nobile had told us on many occasions that he brought cash in excess of $10,000 into the US from South America in complete violation of 31 U.S.C. § 5316, thereby subjecting himself to possible fines of $250,000 or imprisonment for five years for each and every time he did that in violation of 31 U.S.C. § 5322.
As this testimony would be required in order to prove his case against the estate of Testani, Elba LoBuono and Diego Mangiaregna, it would be very completely inadvisable to proceed under such circumstances. His sworn testimony would subject him to a federal arrest.
Further, the corporation in which Mr. Nobile, Mr. Testani and Ms. LoBuono were involved, namely NOL Realty Corporation, was full of false information in violation of 18 U.S.C. § 1001. Any pursuit of this civil case would involve Mr. Nobile's exposure to a possible accusation of being a party to the keeping of false business records. This would subject Mr. Nobile to a fine of $10,000 or five years imprisonment for each false entry.
Further, as the late Mr. Testani was a known racketeer, and his business records were seized by the FBI, it is entirely possible that pursuit of this civil case could expose Mr. Nobile to the penalties of the Racketeer Influenced and Corrupt Organization Act (RICO), which statute provides for penalties of up to 20 years under 18 U.S.C. § 1963.
At the meeting on October 20, 1992, I photocopied the above-named applicable statutes and showed them to Mr. Nobile. Ms. Erickson translated these statutes into Spanish and explained them to Mr. Nobile, his wife, and adult son, in the Spanish language.
We met with the Nobile family for more than two hours. At the conclusion of the meeting, they agreed with us that pursuit of Nobile v. The Estate of Testani, LoBuono and Mangiaregna, in the Queens County Supreme Court under Index No. 16267/89 and/or pursuit of The Estate of Testani in the Queens County Surrogate's Court under File No. 1139/87 was foolish, dangerous, and could adversely effect Mr. Nobile's penal interest.
The Supreme Court Action was marked "Disposed" and "Discontinued" by the clerk on June 19, 1995. A Freedom of Information request to the FBI has not revealed any investigation of Testani.
From October 22, 1992 to September 18, 1995, eighteen telephone calls were made by Nobile or on his behalf to the Schwartz Firm. No conversations were had, and no calls were returned. Nuri Dora ("Dora"), a friend of Nobile, has affirmed that between 1990 and 1997 she traveled to New York and "called numerous times, speaking with Mr. Schwartz and other members of his firm . . . Invariably Mr. Schwartz and/or other members of Mr. Schwartz's firm had told me that Mr. Nobile's case was pending, that he has to be patient and that such matters take time."
In October 1997, Nobile's son visited the Schwartz Firm and took the Nobile files which included a mortgage note of Essnee Realty Corp. dated May 3, 1987 in the amount of $90,000 payable in annual installments of $10,000, executed by Salvatore LoBuono, a resident of Buenos Aires, Argentina, as president of the NOL Realty Corp. The note provided for acceleration upon default.
I. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N Y 1995). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than "metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
II. The Statute of Limitations Bars The Claim of Legal Malpractice Relating To The Supreme Court Action
The gravamen of the Nobile complaint sounds in legal malpractice. In New York, the statute of limitations for all legal malpractice actions is three years, whether framed as breach of contract or negligence. See N.Y. C.P.L.R. § 214(6) (McKinney 1999); Panigeon v. Alliance Navigation Line, Inc., No. 96 Civ. 8350, 1997 WL 473385, at *3 (S.D.N.Y. Aug. 19, 1997);FDIC v. Pelletreau Pelletreau, 965 F. Supp. 381 (E.D.N.Y. 1997);Mason Tenders Dist. Counsel Pension Fund v. Messera, 958 F. Supp. 869 (S.D.N.Y. 1997). Similarly, claims for breach of fiduciary duty and violations of § 487 of the Judiciary Law are also governed by a three-year statute of limitations. See Lefkowitz v. Appelbaum, 258 A.D.2d 563, 685 N.Y.S.2d 460 (N.Y. A.D. 1999) (Section 487 of Judiciary Law); Cooper v. Parsky, 140 F.3d 433 (2d Cir. 1998) (breach of fiduciary duty).
A claim for attorney malpractice accrues when the malpractice occurs, except that the statute of limitations is tolled until the attorney ceases to represent the client on the mater in which the alleged malpractice occurred. See Brooks v. Bates, No. 89 Civ. 4478, 1994 WL 121851, at *6 (S.D.N.Y. April 7, 1994) (citations omitted).
As set forth above, at the meeting of October 20, 1992, Nobile agreed to discontinue the Supreme Court Action. That meeting is the latest point at which Nobile's claim could have accrued with respect to that action. Thus, the three-year statute of limitations expired well before this litigation was commenced on April 2, 1998.
The amendment of CPLR § 214 providing for the three-year limitations period took place in 1996. Previously, courts had applied a six-year statute of limitations to legal malpractice actions. See Panigeon, 1997 WL 473385, at *3. This longer period does not apply here, however, although the cause of action is presumed to have accrued prior to the amendment, i.e., on October 20, 1992.
In Panigeon, the court dismissed a legal malpractice claim as untimely where the claim had accrued in 1993 and the action was commenced in 1997. See Panigeon, 1997 WL 473385, at *3. The court held that the three year statute of limitations applied even though the claim had accrued prior to the amendment of the CPLR where the malpractice action was not filed within "a reasonable time after [the] passage" of the amendment. Id. The court determined that a claim filed more than six months after the passage of the amendment was not asserted in a reasonable time frame and dismissed the case. Id.
The New York State courts have applied the same rule. See Davis v. Isaacson, Robustelli, Fox, Fine, Greco Fogelgaren, P.C., 258 A.D.2d 321, 685 N.Y.S.2d 216 (N.Y. A.D. 1999) (action brought five months after CPLR amendment was not within reasonable time and would be dismissed as untimely); Lefkowitz v. Preminger, 261 A.D.2d 447, 690 N.Y.S.2d 105 (N.Y. A.D. 1999) (dismissing a legal malpractice claim as time barred since it was filed more than six months after the amendment's effective date, which was considered unreasonable). This reasoning applies here, where the action was filed almost two years after the amendment of the CPLR. Thus, Nobile's claims with respect to the Supreme Court Action is barred by the statute of limitations.
III. The Statute of Limitations Bars The Claim of Legal Malpractice Relating To The Surrogate Court Action
The October 20, 1992 letter reflecting Nobile's agreement to discontinue the Supreme Court Action did not include the Surrogate Court Action which the parties acknowledged was "continuing ahead," notwithstanding Kerson's memo to the contrary. Nothing, however, was undertaken by the defendants in connection with that action.
According to the defendants, the Surrogate Court Action is alive and well and can be prosecuted by Nobile today, no final accounting having been made. According to Nobile, the action is barred by the rejection of Nobile by operation of law on March 7, 1989 as reflected in the November 19, 1990 order of Surrogate Judge Laurino, described above. According to Nobile, the six-year statute of limitations contained in CPLR § 213(c) applies to the Surrogate Court Action and therefore his claim in that action was extinguished on March 7, 1995. According to Nobile, that expiration is grounds for legal malpractice.
According to the defendants, the Surrogate Court Action has not been extinguished, pursuant to the Surrogate's Court Procedure Act ("SCPA") § 2205:
The Court may at any time, upon it appearing that it is for the best interests of the estate, either on its own initiative or on the petition of (a) a creditor, or (b) a person interested . . . by an order require a fiduciary to file an intermediate or final account within such time and in such manner directed by it.
Surr. Ct. Proc. Act § 2205 (McKinney 2000).
On November 19, 1990, the defendants filed objections concerning the intermediate accounting submitted by N. Michael LoRusso. As reflected in the November 19, 1990 order and accounting of the Surrogate Court, the August 10, 1990 stipulation and consent continuing Nobile's claims was incorporated into that order. The defendants contend that Nobile's claims were thereby preserved, no order disposing of or affecting Nobile's claims having been entered.
Pursuant to SCPA § 1806, after the claim was filed, the estate's fiduciary was required to either accept it or reject it. SCPA § 1806 provides that if the fiduciary does nothing for 90 days, the claim is deemed rejected. Thus, Nobile maintains the claim was deemed rejected by operation of SCPA § 1806 as of March 7, 1989. The order of Surrogate Judge Laurino dated November 19, 1990, referred to by the defendants, appointed a new executor but recited that the executor had rejected the claim.
Here, according to Nobile, although an action was commenced in the Supreme Court by the defendants on behalf of Nobile, that action was dismissed by the Court as to the estate of Testani with a directive to commence it again in the proper form as a shareholder's derivative action. Since defendant attorneys never followed up by commencing an action in the proper form, and never appealed the erroneous failure of the Court to simply convert the action into a shareholder's derivative action, see First Nat'l City Bank v. City of New York Fin. Admin., 36 N.Y.2d 87, 365 N.Y.S.2d 493 (N.Y. 1975); Maki v. Ziehm, 55 A.D.2d 454, 391 N.Y.S.2d 705 (N.Y. A.D. 1977), the statute of limitations has expired and Nobile's claim can no longer be pursued in the Surrogate Court Action.
Once a claim is presented in Surrogate's Court and rejected or deemed rejected by the fiduciary pursuant to SCPA § 1806, the next step in the procedure for the claimant who wishes to pursue the claim is to move to compel a final accounting pursuant to SCPA § 2205(1) so that the disputed claim can be resolved by the Court. Because the SCPA does not set forth a statute of limitations for claimants to move to enforce their claim or to compel a final accounting, the courts have applied the residual six-year limitations period contained in CPLR § 213(1). See Matter of Seaman, 146 Misc.2d 563, 551 N.Y.S.2d 454 (N.Y. Surr. Ct. 1990) Matter of Barabash, 31 N.Y.2d 76, 334 N.Y.S.2d 890 (N.Y. 1972); see also Matter of McDonough, 279 A.D.2d 362, 110 N.Y.S.2d 166 (N.Y. A.D. 1952) (pre-CPLR case applying former ten-year residual limitations period of former Civil Practice Act).
It is not necessary to resolve this dispute, however, even though Nobile appears to have the better of the argument. Accepting Nobile's view, the rejection of his claim in the Surrogate Court took place as noted at the latest on March 7, 1989, and the six-year statute of limitations governing any application to enforce that claim appears to have expired on March 7, 1995. This is therefore the latest possible date at which Nobile's claim for attorney malpractice for failure to pursue the Surrogate Court Action could have accrued. Based on that accrual date, the three-year statute of limitations for this malpractice action ended on March 7, 1998, i.e., three years after the expiration of the Surrogate Court Action claim on March 7, 1995, which was prior to the filing of this action.
IV. The Statute of Limitations Was Not Tolled
Nobile has suggested that the statute of limitations has been tolled pursuant to the doctrine of continuous representation. In order to satisfy the rule of continuous representation, Nobile must demonstrate: (1) ongoing representation in connection with the specific matter for which the malpractice arose; and (2) a clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney. See Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506, 560 N.Y.S.2d 787, 788 (N.Y. A.D. 1990); Mason Tenders, 958 F. Supp. 869; Panigeon, 1997 WL 473385; FDIC v. Pelletreau Pelletreau, 965 F. Supp. 381 (E.D.N.Y. 1997).
In Mason Tenders, this Court refused to toll the statute of limitations based on the doctrine of continuous representation. The Court found the doctrine "not applicable where plaintiff's 'failed to describe any specific acts performed, representations made and/or omissions by defendants concerning the particular transactions which are challenged herein.'" 958 F. Supp. at 889 (citing Zaref v. Burke Michaels, 192 A.D.2d 346, 595 N.Y.S.2d 772 (N.Y. A.D. 1993)).
There is no record of any communication by Nobile with Kerson and his firm after the October 20, 1992 meeting. As to Schwartz, there were eighteen unanswered calls placed to his office after October 20, 1992. DOra's affidavit fails to establish the date of her alleged conversations nor does it identify the persons to whom she spoke. Those conversations, even accepted as proffered, do not serve to toll the statute of limitations. Thus, the continuous representation doctrine does not apply so as to toll the statute of limitations with respect to malpractice claims based on either the Supreme Court Action or the Surrogate Court Action.
The argument for tolling is particularly untenable with respect to a malpractice claim based on the Supreme Court Action, as there is no genuine dispute about the decision to discontinue that action on October 20, 1992.
Nobile also contends that the doctrine of equitable estoppel bars the defendants from asserting the statute of limitations as a defense, citing the New York State Court of Appeals in Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259 (N.Y. 1978):
It is the rule that a defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.
A defendant who has committed a wrongdoing should not be permitted to utilize that wrongdoing to set up a statute of limitations defense. See General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125, 272 N.Y.S.2d 337 (N.Y. 1966); see also Glus v. Brooklyn Eastern Term., 359 U.S. 231, 232-33 (1959). However, Nobile has failed to set forth any evidence of affirmative action by the defendants to defraud him.
V. The Claim of Legal Malpractice Relating To The Mortgage Is Dismissed
Nobile has also asserted a claim for attorney malpractice based on the defendants' alleged failure to recover on a mortgage note given to Nobile in 1987. This note was contained in the Schwartz files. However, there is no allegation or evidence that Nobile instructed Schwartz to enforce the note and no evidence that Kerson was even aware of it. In addition, the note did not expire until May 1997. The statute of limitations to recover on a mortgage note is six years. See In re Drzewucki v. N.Y.S. Dep't of Social Servs., 225 A.D.2d 621, 639 N.Y.S.2d 103 (N.Y.App. Dic. 1996). Nobile's current counsel became representing him by at least April 1998, when this action was filed, and therefore a timely action could have been commenced by Nobile and his current counsel to enforce the note. Therefore, Nobile cannot establish a malpractice claim in relation to the mortgage note and this claim is dismissed.
VI. The Claim Under § 487 of The Judiciary Law Is Dismissed
Nobile's claim under § 487 is insufficient as a matter of law as failing to allege that the defendants' misconduct amounted to a "chronic and extreme pattern of legal delinquency." Gaddy v. Sherri Eisenpress Shatzkin Reiss, No. 99 Civ. 3781, 1999 WL 1256242, at *5 (S.D.N.Y. December 27, 1999) (quoting Brignoli v. Balch, Hardy Scheinman, Inc., 126 F.R.D. 462, 467 (S.D.N Y 1989)) (internal quotation marks omitted). Furthermore, conclusory allegations do not rise to a level necessary to state a claim under § 487. See id. Nobile has failed to establish the essential element of damages caused by the attorney's deceit as required to maintain a claim under § 487. See Cresswell v. Sullivan Cromwell, 771 F. Supp. 580 (S.D.N.Y. 1991). Moreover, the three-year statute of limitations also applies to the Judiciary law claim. See Lefkowitz, 258 A.D.2d 563. Therefore, this claim is dismissed.
VII. The Claim For Breach of Fiduciary Duty Is Dismissed
A cause of action for breach of fiduciary duty that is duplicative of a breach of contract claim must be dismissed.William Kaufman Org., Ltd. v. Graham James, L.L.P., 209 A.D.2d 171, 703 N.Y.S.2d 439 (N.Y. A.D. 2000); Perl v. Smith Barney Inc., 230 A.D.2d 664, 666, 646 N.Y.S.2d 678 (N.Y. A.D. 199 6). Here, the factual basis for Nobile's breach of fiduciary duty and breach of contract claims are duplicative and the complaint has identical paragraphs listing the alleged breaches by the defendants for each cause of action.
VIII. The Cross Motion For Partial Summary Judgment Is Denied
The cross motion seeks partial summary judgment declaring legal malpractice on the part of the defendants for failing to commence a shareholder derivative action and to appeal the dismissal of the Supreme Court Action against Buglione, and in addition to strike any defense based upon an FBI investigation and Nobile's inability to prove his investment. Given the conclusions already reached, the cross-motion is moot.
Conclusion
Therefore, for the reasons set forth above, the defendants' motion for summary judgment is granted, and Nobile's cross-motion is denied.
Settle order on notice.
It is so ordered.