188-90 Eighth Ave. Hous. Dev. Fund Corp. v. Filemyr

Decision Date11 April 2016
Docket NumberIndex No. 150436/15
Citation2016 NY Slip Op 30612 (U)
Parties188-90 EIGHTH AVENUE HOUSING DEVELOPMENT FUND CORP., Plaintiff, v. EDWARD JOSEPH FILEMYR IV, ESQ., Defendant.
CourtNew York Supreme Court

2016 NY Slip Op 30612(U)

188-90 EIGHTH AVENUE HOUSING DEVELOPMENT FUND CORP., Plaintiff,
v.
EDWARD JOSEPH FILEMYR IV, ESQ., Defendant.

Index No. 150436/15

SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK: Part 55

April 11, 2016


DECISION/ORDER

HON. CYNTHIA KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for :__________

Papers
Numbered
Notice of Motion and Affidavits Annexed
1
Affidavits in Opposition
2
Replying Affidavits
3
Exhibits
4

Plaintiff 188-90 Eighth Avenue Housing Development Fund Corp. commenced the instant action seeking to recover damages arising out of defendant Edward Joseph Filemyr IV, Esq.'s alleged legal malpractice. Defendant now moves for an Order pursuant to CPLR §§ 3211(a)(1), (5) and (7) dismissing the complaint and for sanctions pursuant to 22 NYCRR § 130-1.1 (a). Defendant's motion is resolved as set forth below.

The relevant facts according to the complaint and procedural history of this case are as follows. In or around 2008, plaintiff, a low-income housing corporation, hired defendant to represent it in a holdover and non-payment proceeding against plaintiff's tenant, Havana Chelsea, Inc. ("Havana"), a restaurant corporation, and Havana's principal, Thomas Vicari, in order to collect unpaid rent, taxes and certain other charges. The proceeding culminated in a

Page 2

trial in or around February 2011 during which plaintiff was represented by defendant. However, before the trial concluded, the parties entered into a settlement agreement, after prolonged settlement discussions, pursuant to which the tenant agreed to pay the sum of $130,000, to cure any Department of Building or other code violations and the terms of the lease were modified. Plaintiff alleges that at the trial, prior to settlement, defendant failed to have certain necessary and required documents ready for submission and that as a result, inter alia, "[p]laintiff was effectively compelled to settle the landlord-tenant action by stipulation of settlement" and "was prejudiced and entered into a stipulation which was economically disadvantageous to [p]laintiff" because "it permitted the tenant to avoid paying correct and owed rents, escalations and other required payments to landlord, it permitted a long-term payback of the rent arrearage that tenant did have to pay, allowed for a smaller than reasonable payback amount per month, and lowered the monthly rent from its previous lawful amount."

In or around 2013, plaintiff commenced an action against defendant asserting claims for legal malpractice, breach of fiduciary duty and breach of contract based on the above allegations (the "2013 Complaint"). Thereafter, defendant moved to dismiss the 2013 Complaint pursuant to CPLR §§ 3211(a)(1) and (7). In a decision dated May 13, 2014, Justice Donna Mills of the Supreme Court, New York County, granted defendant's motion and dismissed the 2013 Complaint in its entirety. Specifically, Justice Mills dismissed plaintiff's legal malpractice claim explaining as follows:

[Defendant's] documentary evidence, which comprised the transcript of the court proceedings setting forth the admission of the subject lease document at trial. The defendant submitted the deed and lease into evidence
...

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