Opinion
No. 158045/2020 MOTION SEQ. No. 001
05-03-2022
TERESA ROEDELBRONN, Plaintiff, v. BORSTEIN & SHEINBAUM LLC, BORSTEIN TURKEL PC, LEON BORSTEIN, AVRAM TURKEL, JAMES SHEINBAUM, BORSTEIN & SHEINBAUM Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 were read on this motion to/for DISMISS.
Plaintiff Teresa Roedelbronn brings this action against Defendants Borstein & Sheinbaum LLC, Borstein Turkel PC, Leon Borstein, Avram Turkel, James Sheinbaum, and Borstein & Sheinbaum for alleged legal malpractice in their representation of Plaintiff in a prior divorce proceeding. In motion sequence 001, Defendants move to dismiss the amended complaint, arguing that it is barred by the statute of limitations, it fails to state a claim, and it is utterly refuted by documentary evidence. The motion is fully submitted.
Background Timothy Cotton, Plaintiffs ex-husband, commenced a divorce proceeding against her in February 2013. Plaintiff retained the services of Defendant Borstein & Sheinbaum ("B&S") in July 2014 after being dissatisfied with two prior law firms. (NYSCEF Doc No. 14, B&S Retainer.) Via consent to change attorney dated January 1, 2016, Plaintiff retained the services of Defendant Borstein Turkel, PC ("BT"). (NYSCEF Doc No, 17; NYSCEF Doc No. 18, BT Retainer.)
A trial was held before Special Referee Joseph Burke from June 23 to July 16, 2015. On October 13, 2016, Referee Burke issued a report recommending that Cotton pay Plaintiff $20,000.00 in maintenance per month and that Plaintiff be allocated "10% of the marital property portion of the Agrifos business assets". (NYSCEF Doc No. 16, Burke Report, at 3-4, 7.) The Hon. Deborah Kaplan adopted the recommendations and issued a judgment of divorce on October 20, 2017. (NYSCEF Doc No. 21, Judgment of Divorce, affd 170 A.D.3d 595 [1st Dept 2019].)
Plaintiff commenced this action on September 30, 2020, and filed the amended complaint on December 10, 2020, alleging that she was awarded a smaller share of the marital assets and alimony than she was entitled to receive. (NYSCEF Doc No. 8, Am. Cmplt, at ¶ 15.) Specifically, Plaintiff alleges that Defendants were negligent in that they:
a. failed to properly prepare for the trial;
b. obtain the services of and use a forensic accountant to testify at the trial even though funds were provided to obtain one;
c. failed to provide or obtain any witnesses during the trial before the Special Referee;
d. failed to provide Exhibits at the Hearing before the Special Referee to respond to Cotton's 240 Exhibits and five witnesses other than Plaintiff;
e. failed to properly advise plaintiff as to what was needed for the hearing, properly prepare her for trial or advise her when she was unable to attend on a daily bases because of severe illness;
f. failed to take all actions necessary to obtain an adjournment in light of PLAINTIFF'S documented severe illness;
g. failed to properly advise plaintiff;
h. failed to properly confirm the calculations of the Special Referee which appears to have omitted over $417,991.30 in favor of Plaintiff;
i. failed to properly advise PLAINTIFF with regard to Domestic relations Law 236 and in in general, and
g. failed to properly represent Plaintiff after the hearing and prior to the filing of a Notice of Appeal.(Id. at ¶18.)
Defendants move to dismiss the complaint for multiple reasons. First, they argue that the action is barred by the statute of limitations, as the alleged malpractice occurred more than three years prior to the commencement of this action. (NYSCEF Doc No. 23, Defs.' Memo, at 15-18.) Second, they argue that Plaintiffs conclusory allegations fail to state a cause of action for malpractice. (Id. at 18-19.)
Discussion
"A defendant moving for summary judgment in a legal malpractice action on the ground that it is untimely must make a prima facie showing that the malpractice action was commenced more than three years after the date on which the cause of action accrued." (Farage v Ehrenberg, 124 A.D.3d 159, 164 [2d Dept 2014].)
"However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney's continuing representation of the client with regard to the particular matter terminates." (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789 [2d Dept 2017].) The doctrine is "generally limited to the course of representation concerning a specific legal matter," and thus is "not applicable to a client's ... continuing general relationship with a lawyer ... involving only routine contact for miscellaneous legal representation ... unrelated to the matter upon which the allegations of malpractice are predicated." (West Vill. Assocs. Ltd. P'ship v Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, 49 A.D.3d 270, 270 [1st Dept 2008].)
Here, Plaintiffs allegations of malpractice pertain almost entirely to the Defendants' actions or inactions taken during the trial which was held from June 23 to July 16, 2015. (Am. Cmplt. at ¶18.) The statute of limitations for legal malpractice arising from the trial expired on July 16, 2018. (CPLR 214[6].) Plaintiffs attempted reliance on the continuous representation doctrine is unavailing (NYSCEF Doc No. 32, Opposition, at 4-5; NYSCEF Doc No. 27, Pl.'s Affidavit), as Plaintiff fails to demonstrate the existence of "clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice." (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789 [2d Dept 2017].) To the contrary, Plaintiffs affidavit reaffirms that the alleged malpractice took place solely during the 2015 trial, as Plaintiff fails to note any further relationship between her and Defendants after the trial's conclusion. (NYSCEF Doc No. 27, Pl.'s Affidavit, at ¶¶ 21-23.) As such, Defendants' motion to dismiss pursuant to CPLR 3211[a][5] is granted, and all allegations of Defendants' legal malpractice committed during the 2015 trial are barred by the statute of limitations.
Plaintiffs only allegation of malpractice taking place outside of the 2015 trial is that Defendants "failed to properly represent Plaintiff after the hearing and prior to the filing of a Notice of Appeal." (Am. Cmplt. at ¶ 18[g].)
On a pre-answer motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211 [a] [7], "the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory." (Frank v DaimlerChrysler Corp., 292 A.D.2d 118, 121 [1st Dept 2002].) However, the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts. (See Bishop v Maurer, 33 A.D.3d 497 [1st Dept 2006]; Igarashi v Higashi, 289 A.D.2d 128 [ 1 st Dept 2001 ].)
"In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages." (Leder v Spiegel, 31 A.D.3d 266, 267 [1st Dept 2006].) To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence. (See Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 441 [2007].) "A failure to establish proximate cause requires dismissal regardless of whether negligence is established." (Mallow, Konstam, Mazu, Bocketti and Nisonoff, P.C. v Zeidman, 2015 WL 4078529, *1 [Sup Ct, NY County 2015].)
Plaintiffs remaining allegation, that Defendants "failed to properly represent Plaintiff after the hearing and prior to the filing of a Notice of Appeal" (Am. Cmplt at ¶ 18[g]) is dismissed for failure to state a claim. Plaintiff fails to specifically allege how Defendants were negligent in their post-trial representation or that such alleged negligence proximately caused any damages. Defendants' unsubstantiated request for sanctions is denied in this court's discretion. It is hereby
ORDERED that Defendants' motion sequence 001 to dismiss the amended complaint is granted, Plaintiffs amended complaint is dismissed, and the Clerk is directed to enter judgment accordingly, together with costs and disbursements.
Any requested relief not expressly addressed by the court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the court.