Opinion
Index No. 161166/2022 Motion Seq. No. 001
01-12-2024
PHILIP J SERVIDER, Plaintiff, v. THE LAW OFFICES OF CERVINI. RONEMUS & VILENSKY, Defendant.
Unpublished Opinion
Motion Date 02/06/2023
PRESENT: HON. MARY V. ROSADO, Justice
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21. 22. 23, 2425, 26, 27, 28, 29, 30, 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, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72 were read on this motion to/for DISMISS.
Upon the foregoing documents, and after oral argument which took place on August 22, 2023 with Plaintiff Philip J. Servindcr ("Plaintiff') appearing pro se, Jamie R. Wozman, Esq. appearing for Defendant Ronemus & Vilensky, LI.P ("R&V") and Defendant The Law Offices of Michael A. Cervini ("Cervini") (Defendants R&V and Ccrvini referred to collectively as "Defendants") failing to appear. Defendant R&V's motion for an Order dismissing Plaintiffs claims against it is granted.
I. Background and Procedural History
Beginning in October 2014, Plaintiff retained Cervini to represent him in an action captioned Philip Servinder el al. v The City of New York, Index No.: 160683/2014(the "Undcrlying Matter") to recover damages for alleged personal injuries he suffered while working for the New-York City Sanitation Department (NYSCEF Doc. 15 at ¶ 5). Cervini represented Plaintiff in the Underlying Matter from October 2014 to October 2015 (NYSCEF Doc. 21), R&V wrere briefly retained to represent Plaintiffin the Underlying matter beginning in October 2015, pursuant to a signed Consent to Change of Attorney form dated October 25, 2015 (NYSCEF Doc. 18). Cervini resumed representation of Plaintiff pursuant to a subsequent Consent to Change Attorney form dated February 3, 2016 (NYSCEF Doc. 19).
The Underlying Matter was resolved pursuant to a signed Stipulation of Settlement dated April 23, 2019 (the "Settlement Agreement") (NYSCEF Doc. 17). Subsequently, Plaintiff fired Cervini in December 2022 and proceeded pro se in an attempt to invalidate the Settlement Agreement (NYSCEF Doc. 14 at ¶ 7). Plaintiffs motion to vacate the Stipulation of Settlement was denied by the Decision and Order of Hon. Alexander M. Tisch, J.S.C. dated May 24, 2021, and unanimously affirmed by the First Department (Servinder v City of New York, 212 A.D.3d 475 [1st Dept 20231).
Plaintiff commenced the instant case against Defendants on December 29, 2022 (NYSCEF Doc. 15) asserting claims for legal malpractice, fraud and misrepresentation, fraudulent inducement, and unjust enrichment (NYSCEF Doc. 1 p. 1).
Defendant R&V' filed the instant motion for an Order, pursuant to CPLR 3211(a)(1), (5), and (7), dismissing Plaintiffs Complaint with prejudice (NYSCEF Doc. 13). Plaintiff filed an Affirmation in Opposition to R&V's motion to dismiss on February 15, 2023 (NYSCEF Doc. 23).
II. Discussion
A. Defendant R&V's Motion to Dismiss Plaintiff s Complaint for Failure to State a Claim
Under C PLR 3211 (a)(7), "[a | party may move for judgment dismissing one or more causes of action asserted against him on the ground that ...the pleading fails to state a cause of action...." In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, ''the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co. 21 N.Y.3d 324, 334 [2013]). "[T]he sole criterion is whether the pleading states a cause of action, and therefore if from its four corners factual allegations are discerned which if taken together can manifest any cause of action, a motion for dismissal must fail" (Kusher v King 126 A.D.2d 446, 467 ).
i. Defendant R&V's Motion to Dismiss Plaintiff's Malpractice Claim for Failure to State a Claim is Granted
It is well established that "[i]n 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]).
Here, Plaintiff fails to plead that R&V's negligence was the proximate cause of Plaintiffs alleged loss. The First Department has held that to establish proximate cause on a claim for legal malpractice, the "plaintiff must demonstrate that but for the attorney's negligence, [they] would have prevailed in the underlying matter or would not have sustained any ascertainable damages" (Brooks v Lewin, 21 A.D.3d 731, 734 [1st Dept 2005]). Further, "speculation on future events are insufficient to establish that [a] defendant lawyer's malpractice, if any, was the proximate cause of any such loss" (Id. at 735). Even given the benefit of every possible favorable inference, Plaintiffs Complaint fails to adequately allege that but for R&V's alleged malpractice. Plaintiff would have prevailed in his underlying actions or would not have sustained any damages. As such, R&V's motion to dismiss Plaintiffs malpractice claims against it is granted.
ii. Defendant R&V's Motion to Dismiss Plaintiff s Claims for Fraud or Misrepresentation for Failure to State a Claim is Granted
The Court of appeals has held that to plead a cause of action for fraud, a plaintiff must plead "a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance. justifiable reliance by the plaintiff and damages" (Eurycleia Partners, LP v Kissel, LLP, 12 N.Y.3d 553 [2009]). Pursuant to CPLR 3016(b). where a cause of action or defense is based upon misrepresentation or fraud, "the circumstances constituting the wrong shall be stated in detail."
While Plaintiffs Complaint alleges that R&V engaged in a wide-ranging conspiracy with Ccrvini to defraud Plaintiff and hinder his ability to present oral arguments on his motion to vacate the Stipulation of Settlement (NYSCEF Doc. 1 at ¶¶ 41, 62), these eonclusory contentions arc not sufficient to meet the heightened pleading requirement of CPLR 3016(b). Indeed, the First Department has held that a claim for fraud or misrepresentation should be dismissed where the complaint "only contains general allegations as to the alleged misrepresentations and virtually no information as to when and by whom these representations were made" (Ferro Fabricators, Inc, v 1807-1811 Park Ave. Dev. Corp., 127 A.D.3d 479. 480 [1st Dept 2105]). Accordingly, R&V's motion to dismiss Plaintiff s fraud and misrepresentation claims against it for failure to state a claim, is granted.
iii. Defendant R&V's Motion to Dismiss Plaintiffs Claim for Unjust Enrichment for Failure to State a Claim is Granted
It is well established that to succeed on a claim for unjust enrichment a plaintiff must show 'That (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party' to retain what is sought to be recovered" (Mandarin Trading Lid. v Wildenstein, 16 N.Y.3d 173,182 |2011]). Further, the Court of Appeals has held that 'jwjithout sufficient tacts, eonclusory' allegations that fail to establish that a defendant was unjustly enriched al the expense of a plaintiff warrant dismissal" (Id. at 183).
With regard to Plaintiffs unjust enrichment claim against R&V, Plaintiffs Complaint contains only eonclusory allegations, insufficient to state a claim for unjust enrichment (NYSCEF Doc. 15). As such, R&V's motion to dismiss Plaintiffs unjust enrichment claim against it is for failure to state a claim, is granted.
iv Defendant R&V's Motion to Dismiss Plaintiff's Claim for Fraudulent Inducement for Failure to State a Claim is Granted
It is well established that "[t]o state a claim for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury'" (GoSmile, Inc. v Levine, 81 A.D.3d 77, 81 [1st Dept 2010]).
Here, Plaintiffs Complaint makes no allegation that R&V made any knowing misrepresentation intended to deceive Plaintiff and induce Plaintiff to act. As such, R&V's motion to dismiss Plaintiffs fraudulent inducement claim against it for failure to state a claim, is granted.
Accordingly, it is hereby, ORDERED that Defendant Ronemus & Vilensky, LLP's motion for an Order dismissing Plaintiffs claims against it is granted; and it is further
ORDERED that on or before March 5, 2024. the remaining parties are directed to submit a proposed Preliminary' Conference Order to the Court via e-mail to SFC-Part33-Clerk@nycourts .gov. If the parties are unable to agree to a proposed Preliminary Conference Order, the parties arc directed to appear for an in-person preliminary conference with the Court in Room 442, 60 Centre Street, on March 6, 2024 at 9:30 a.m.: and it is further
ORDERED that within ten (10) days of entry, counsel for Defendant Ronemus & Vilensky, LLP shall serve a copy of this Decision and Order, with notice of entry, on al! parties to this case; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This constitutes the Decision and Order of the Court.