Preview
FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. W. FRANC PERRY PART IAS MOTION 23EFM
Justice
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INDEX NO. 157344/2019
JORGE MELENDEZ,
MOTION DATE 03/05/2020
Plaintiff,
MOTION SEQ. NO. 001
-v-
RENFROE, DRISCOLL & FOSTER, LLP, LAW OFFICES
DECISION + ORDER ON
OF PAUL R. KING, P.C., PATRICK FOSTER, PAUL KING
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 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
were read on this motion to/for DISMISS .
This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an
action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets
of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the
Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against
Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively,
“Foster”) move to dismiss the complaint as against them. Defendants the Law Offices of Paul R.
King, P.C. and Paul R. King, Esq., do not oppose the motion. The motion has been fully submitted.
BACKGROUND
Luis Melendez (“Luis”) died testate on October 20, 2013. Letters testamentary were issued
to his wife, Adelaida, by Surrogate’s Court, Suffolk County, on June 5, 2014. Plaintiff claimed
ownership of 100% of two family-run businesses, M. Brothers, Inc., which owns a twenty-unit
apartment building and which houses the other business, Adel Wine & Liquors (the “assets”), and
refused to turn them over to Adelaida.
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Motion No. 001
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Adelaida commenced the underlying turnover action on August 6, 2014. Plaintiff retained
Defendant Paul King in October 2014, who filed an answer but did not demand a trial by jury.
Plaintiff also retained Defendant Foster as trial counsel on February 24, 2016 (seven days before
the trial date). A few days after the parties entered into a so-ordered statement of issues for trial,
Foster made an application to amend the statement of issues for trial, which Plaintiff alleges shifted
“the burden of proof” of ownership of the assets to Plaintiff.
At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat
equity and controlled M. Brothers since its inception, that his father had signed a stock power
transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008,
and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.)
Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia,
cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred
ownership of Adel to Plaintiff.
After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that
Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent
part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension
of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature,
and that Plaintiff had fabricated a document arranging a lease between the two asset companies.
Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or
call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies,
to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4.
in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”).
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Motion No. 001
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Foster moves to dismiss based on documentary evidence, pursuant to CPLR 3211 [a] [1],
and for failure to state a claim, pursuant to CPLR 3211 [a] [7]. Foster argues that Plaintiff’s
allegations are impermissibly speculative because there is no way to prove that “but for” the
alleged malpractice, Plaintiff would have succeeded in the prior action.
DISCUSSION
It is well established that “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading
is to be afforded a liberal construction.” (Leon v Martinez, 84 NY2d 83, 87 [1994].)
Where dismissal of an action is sought, pursuant to CPLR 3211 [a] [1], on the ground that
it is barred by documentary evidence, such relief may be warranted only where the documentary
evidence “‘utterly refutes plaintiffs factual allegations'” and “‘conclusively establishes a defense
to the asserted claims as a matter of law.’” (Amsterdam Hospitality Group, LLC v Marshall-Alan
Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal citations omitted].) The court is “not
required to accept at face value every conclusory, patently unsupportable assertion of fact found
in the complaint” and can “consider documentary evidence proved or conceded to be authentic.”
(West 64th Street, LLC v Axis U.S. Ins., 63 AD3d 471, 471 [1st Dept 2009], quoting Four Seasons
Hotels v Vinnik, 127 AD2d 310, 318 [1st Dept 1987] [internal quotation marks omitted].) “A
[submission] will qualify as documentary evidence only if it satisfies the following criteria: (1) it
is unambiguous; (2) it is of undisputed authenticity; and (3) its contents are essentially undeniable.”
(VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019].)
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 AD2d 118,
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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 AD3d 497 [1st Dept 2006]; Igarashi v
Higashi, 289 AD2d 128 [1st 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 AD3d 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 NY3d 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].)
Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot
show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For
one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question
her about her deposition testimony regarding her and her husband’s intention to give Adel to the
Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.)
Plaintiff indicates that this is a party admission that should have been brought up at trial. However,
the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only
indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband
had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that
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any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on
the testamentary intent of Adelaida and her husband.
Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported
ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing
a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on
his father’s behalf, which fell far short of meeting the clear and convincing standard required to
establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the
gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days
before the decedent died, at a time when, by any measure, his physical and mental condition was
deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating
that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was
legitimate, especially considering that the Judge specifically considered the gift tax return and
knew the extent of Gellerman’s alleged involvement in its preparation.
In light of the documentary evidence and after accepting as true all facts alleged in the
complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. The complaint fails to state a cause of action for malpractice
because itdoes not sufficiently allege that Defendants’ negligence was the proximate cause of
Plaintiff's damages. Because Plaintiff has failed to establish proximate cause, dismissal is required.
(Leder v Spiegel, 31 AD3d at 268.)
Accordingly, it is hereby
ORDERED that the motion of Defendants Patrick Foster and Renfroe, Driscoll & Foster
to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against
said Defendants, with costs and disbursements to said Defendants as taxed by the Clerk of the
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Motion No. 001
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Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is
further
ORDERED that the action is severed and continued against the remaining Defendants The
Law Offices of Paul R. King, P.C. and Paul R. King, Esq., and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice
of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General
Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect
the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-
Filing” page on the court’s website at the address www.nycourts.gov/supctmanh)].
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.
08/11/20 $SIG$
DATE W. FRANC PERRY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 6 of 6
Motion No. 001
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FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. W. FRANC PERRY PART IAS MOTION 23EFM Justice ---------------------------------------------------------------------------------X INDEX NO. 157344/2019 JORGE MELENDEZ, MOTION DATE 03/05/2020 Plaintiff, MOTION SEQ. NO. 001 -v- RENFROE, DRISCOLL & FOSTER, LLP, LAW OFFICES DECISION + ORDER ON OF PAUL R. KING, P.C., PATRICK FOSTER, PAUL KING MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 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 were read on this motion to/for DISMISS . This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively, “Foster”) move to dismiss the complaint as against them. Defendants the Law Offices of Paul R. King, P.C. and Paul R. King, Esq., do not oppose the motion. The motion has been fully submitted. BACKGROUND Luis Melendez (“Luis”) died testate on October 20, 2013. Letters testamentary were issued to his wife, Adelaida, by Surrogate’s Court, Suffolk County, on June 5, 2014. Plaintiff claimed ownership of 100% of two family-run businesses, M. Brothers, Inc., which owns a twenty-unit apartment building and which houses the other business, Adel Wine & Liquors (the “assets”), and refused to turn them over to Adelaida. 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 1 of 6 Motion No. 001 1 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 Adelaida commenced the underlying turnover action on August 6, 2014. Plaintiff retained Defendant Paul King in October 2014, who filed an answer but did not demand a trial by jury. Plaintiff also retained Defendant Foster as trial counsel on February 24, 2016 (seven days before the trial date). A few days after the parties entered into a so-ordered statement of issues for trial, Foster made an application to amend the statement of issues for trial, which Plaintiff alleges shifted “the burden of proof” of ownership of the assets to Plaintiff. At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat equity and controlled M. Brothers since its inception, that his father had signed a stock power transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008, and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.) Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia, cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred ownership of Adel to Plaintiff. After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature, and that Plaintiff had fabricated a document arranging a lease between the two asset companies. Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies, to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4. in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”). 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 2 of 6 Motion No. 001 2 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 Foster moves to dismiss based on documentary evidence, pursuant to CPLR 3211 [a] [1], and for failure to state a claim, pursuant to CPLR 3211 [a] [7]. Foster argues that Plaintiff’s allegations are impermissibly speculative because there is no way to prove that “but for” the alleged malpractice, Plaintiff would have succeeded in the prior action. DISCUSSION It is well established that “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction.” (Leon v Martinez, 84 NY2d 83, 87 [1994].) Where dismissal of an action is sought, pursuant to CPLR 3211 [a] [1], on the ground that it is barred by documentary evidence, such relief may be warranted only where the documentary evidence “‘utterly refutes plaintiffs factual allegations'” and “‘conclusively establishes a defense to the asserted claims as a matter of law.’” (Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal citations omitted].) The court is “not required to accept at face value every conclusory, patently unsupportable assertion of fact found in the complaint” and can “consider documentary evidence proved or conceded to be authentic.” (West 64th Street, LLC v Axis U.S. Ins., 63 AD3d 471, 471 [1st Dept 2009], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 318 [1st Dept 1987] [internal quotation marks omitted].) “A [submission] will qualify as documentary evidence only if it satisfies the following criteria: (1) it is unambiguous; (2) it is of undisputed authenticity; and (3) its contents are essentially undeniable.” (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019].) 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 AD2d 118, 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 3 of 6 Motion No. 001 3 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 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 AD3d 497 [1st Dept 2006]; Igarashi v Higashi, 289 AD2d 128 [1st 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 AD3d 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 NY3d 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].) Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question her about her deposition testimony regarding her and her husband’s intention to give Adel to the Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.) Plaintiff indicates that this is a party admission that should have been brought up at trial. However, the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 4 of 6 Motion No. 001 4 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on the testamentary intent of Adelaida and her husband. Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on his father’s behalf, which fell far short of meeting the clear and convincing standard required to establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days before the decedent died, at a time when, by any measure, his physical and mental condition was deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was legitimate, especially considering that the Judge specifically considered the gift tax return and knew the extent of Gellerman’s alleged involvement in its preparation. In light of the documentary evidence and after accepting as true all facts alleged in the complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have prevailed in the underlying action. The complaint fails to state a cause of action for malpractice because itdoes not sufficiently allege that Defendants’ negligence was the proximate cause of Plaintiff's damages. Because Plaintiff has failed to establish proximate cause, dismissal is required. (Leder v Spiegel, 31 AD3d at 268.) Accordingly, it is hereby ORDERED that the motion of Defendants Patrick Foster and Renfroe, Driscoll & Foster to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said Defendants, with costs and disbursements to said Defendants as taxed by the Clerk of the 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 5 of 6 Motion No. 001 5 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2020 04:41 PM INDEX NO. 157344/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/11/2020 Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining Defendants The Law Offices of Paul R. King, P.C. and Paul R. King, Esq., and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E- Filing” page on the court’s website at the address www.nycourts.gov/supctmanh)]. 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. 08/11/20 $SIG$ DATE W. FRANC PERRY, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 157344/2019 MELENDEZ, JORGE vs. RENFROE, DRISCOLL & FOSTER, Page 6 of 6 Motion No. 001 6 of 6