Opinion
INDEX NO. 160837/2016
01-06-2020
RAYMOND RAMOS, Plaintiff, v. GOLDBERG, SCUDIERI & LINDENBERG, P.C., ALAN GOLDGBERG, DAVID SCUDIERI, IVY ALEXANDER, ROBERT GOLDBERG Defendant.
NYSCEF DOC. NO. 61 PRESENT: HON. ANTHONY CANNATARO Justice MOTION DATE 09/11/2019 MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for DISMISS.
Plaintiff, Raymond Ramos commenced this malpractice action against defendants, his former attorneys and their law firm, who represented him in two separate cases pertaining to the cooperative apartment he formerly resided in. Defendants now move to dismiss the complaint pursuant to CPLR 3211, for failure to state a cause of action.
The underlying cases dealt with possessory rights to Apartment 4A of the cooperative building located at 4-6 West 105th Street in Manhattan. According to the cooperative's records, Patrick Millet was the shareholder of that apartment, but abandoned the apartment in the 1990s, and had since been subletting the premises to various individuals. In 2009 the cooperative commenced a holdover proceeding against the then occupants of the premises, which included plaintiff, to recover possession of the apartment. Plaintiff who had resided in the apartment since sometime in the 1990s, defended that the shares to the apartment were transferred to him in 1995. In 2011, while the holdover proceeding was ongoing, plaintiff commenced a Supreme Court action against the cooperative, seeking a declaration that he was the rightful shareholder of the apartment.
Defendants represented plaintiff in both of those cases. While represented by defendants, plaintiff agreed by a so-ordered stipulation dated September 14, 2011, to have the holdover proceeding marked off the calendar and stayed pending the outcome of the Supreme Court action. By decision and order dated December 16, 2016, the Supreme Court found that plaintiff "had no rights to the Apartment."
Plaintiff commenced this action alleging that two errors made by defendants during their representation of him in the two underlying cases caused him to lose the cooperative apartment. First, he alleges that defendants committed malpractice by stipulating to have the outcome of the holdover proceeding be dependent upon the outcome of the Supreme Court action, which defendants should have known would be dismissed as time-barred. Second, plaintiff alleges that defendants committed malpractice in failing to call Anna Stern, the cooperative's attorney at the time of the alleged transfer of shares, to testify at the Supreme Court trial, as she would have verified the alleged transfer.
In considering a motion to dismiss pursuant to CPLR 3211 (a), "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" (Faison v Lewis, 25 NY3d 220, 224 [2015], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Sokol v Leader, 74 AD3d 1180, 1181 [2d Dept 2010]). On a motion to dismiss for failure to state a claim, the facts pleaded in the complaint are presumed to be true, except those facts which are inherently incredible or flatly contradicted by the documentary evidence, which are not entitled to such consideration (CIBC Bank & Trust Co. [Cayman] Ltd. v Credit Lyonnais, 270 AD2d 138 [2000].
To state a legal malpractice claim, the plaintiff must plead that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, which results in actual damages to the plaintiff and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's alleged negligence (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). But-for causation is a necessary element of the legal malpractice claim (Wageoner v Caruso, 14 NY3d 874, 875 [2010]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007); Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]).
Plaintiff has failed to plead a plausible cause of action for malpractice, as the allegations in the complaint are inherently incredible and/or flatly contradicted by documentary evidence. Contrary to plaintiff's allegation, it was not obvious that the Court would determine that the action was time-barred. More importantly though, in its decision and order dated December 30, 2013, the Court specifically noted that even if plaintiff's claims had not been time-barred, there were numerous deficiencies in plaintiff's evidence, and sufficient uncontested evidence, for the court to determine that there could not possibly have been a valid sale or transfer of cooperative shares to plaintiff.
Given the weight of the evidence considered by the Court, its decision also would not have changed had plaintiff called Anna Stern an additional witness. The Court found that there was overwhelming evidence such that even crediting plaintiff's testimony at trial, he was never interviewed by the board, and could not possibly have acquired the shares. Ultimately, Supreme Court found that not only was plaintiff not a shareholder in the cooperative, his attempt to establish rights to the shares was the perpetration of a fraud:
The credible evidence adduced at this trial established that the plaintiff, with the apparent assistance of his mother, not
only disregarded that stated purpose [of the HDFC] but, in fact, sought to, and did, personally profit from the HDFC by improperly and deceitfully acquiring access to apartment 4A and thereafter resided in the unit without paying maintenance on any regular basis and, when he chose to reside elsewhere, unlawfully sublet the apartment. He now seeks to establish legal rights to the apartment with the aid of the court in order to avoid eviction in the pending housing court proceeding. The course of conduct exhibited by the plaintiff will not be countenanced and, most certainly, the court will not participate with the plaintiff to achieve that end.
Lastly, as to plaintiff's contention that his attorneys improperly linked the holdover proceeding to the Supreme Court action, even if a stipulation linking the two cases had not existed, the question of whether plaintiff was subject to eviction in the holdover proceeding necessarily depended upon whether plaintiff was found to be a shareholder of the cooperative in the Supreme Court action.
As to plaintiff's breach of fiduciary duty cause of action, that cause of action is duplicative of his legal malpractice cause of action. Therefore his complaint is dismissed in its entirety.
Accordingly, it is
ORDERED that the motion by defendants to dismiss the complaint herein is granted and the complaint is dismissed in its entirety with costs and disbursements to defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of defendants. 1/6/2020
DATE
/s/ _________
ANTHONY CANNATARO, J.S.C.