360 West 11th LLC v. ACG Credit Co. II

Decision Date20 December 2011
Parties360 WEST 11TH LLC, et al., Plaintiffs–Appellants, v. ACG CREDIT COMPANY II, LLC, Defendant–Respondent.[And Other Actions].
CourtNew York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09191
90 A.D.3d 552
935 N.Y.S.2d 289

360 WEST 11TH LLC, et al., Plaintiffs–Appellants,
v.
ACG CREDIT COMPANY II, LLC, Defendant–Respondent.
[And Other Actions].

Supreme Court, Appellate Division, First Department, New York.

Dec. 20, 2011.


[935 N.Y.S.2d 290]

Davidoff Malito & Hutcher LLP, New York (Martin H. Samson of counsel), for appellants.

Wollmuth Maher & Deutsch LLP, New York (William F. Dahill of counsel), for respondent.

RENWICK, J.P., DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ.

[90 A.D.3d 553] Order, Supreme Court, New York County (Eileen Bransten, J.), entered August 4, 2010, which denied plaintiffs' motion for leave to amend the complaint, unanimously affirmed, with costs.

This action arises out of a mortgage-secured loan from defendant, ACG Credit Company II, LLC, and third-party plaintiff, ACG Finance Company, LLC (collectively ACG), to plaintiffs. Plaintiffs' dispute with ACG stems from the latter's declaration of events of default under the underlying loan agreement. By the instant motion, plaintiffs sought leave to amend the complaint so as to add causes of action against ACG's former attorney and current attorneys under Judiciary Law § 487 and two other causes of action based

[935 N.Y.S.2d 291]

upon Uniform Rules for Trial Courts (22 NYCRR) § 130–1.1. The targets of the proposed Judiciary Law claims are Daniel Bildner, Esq., Martin West, Esq., William Dahill, Esq. and the firm of Wollmuth, Maher & Deutsch, LLP (WMD).

Leave to amend pleadings is freely given absent prejudice or surprise ( see CPLR 3025[b]; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [2007] ). Nevertheless, a court must examine the merit of the proposed amendment in order to conserve judicial resources ( see Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354–355, 797 N.Y.S.2d 434 [2005] ). Judiciary Law § 487 provides for the recovery of treble damages from a lawyer who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” Bildner was a shareholder of the law firm that previously represented ACG. The proposed amended complaint contains an allegation that Bildner gave false testimony with respect to services rendered by his firm in support of ACG's still pending counterclaim for attorneys' fees related to the administration and enforcement of the loan agreement. The proposed seventh cause of action sets forth an assertion that plaintiffs “now...

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24 cases
  • Aykac v. City of New York
    • United States
    • New York Supreme Court
    • October 20, 2022
    ... ... & Hospitals Corp., 59 N.Y.2d 755 [1983]; 360 ... West 11th LLC v ACG Credit Co. II, LLC, 90 A.D.3d 552 ... [1st Dept ... ...
  • Melcher v. Greenberg Traurig LLP
    • United States
    • New York Supreme Court — Appellate Division
    • January 19, 2016
    ...counsel and prejudice [the defendant's] right to be represented by attorneys of its choice” (360 W. 11th LLC v. ACG Credit Co. II, LLC, 90 A.D.3d 552, 554, 935 N.Y.S.2d 289 1st Dept.2011 ). Those very concerns would, in fact, have been present in this case.Our decision in Zimmerman v. Kohn,......
  • Bd. of Managers of 255 Hudson Condo. v. Hudson St. Assocs., LLC
    • United States
    • New York Supreme Court
    • October 22, 2012
    ...is no independent cause of action for frivolous sanctions as defined under 22 NYCRR 130-1.1 (360 W. 11th LLC v. ACG Credit Co. II, LLC, 90 A.D. 3d 552, 935 N.Y.S. 2d 289 [ N.Y.A.D. 1st Dept., 2011]). Gotham opposes plaintiff's cross-motion contending that it is is premature because there ha......
  • Bd. of Managers of 255 Hudson Condo. v. Hudson St. Assocs., LLC
    • United States
    • New York Supreme Court
    • October 22, 2012
    ...cause of action for frivolous sanctions as defined under 22 NYCRR 130–1.1 ( 360 W. 11th LLC v. ACG Credit Co. II, LLC, 90 AD3d 552, 935 N.Y.S.2d 289 [ N.Y.A.D. 1st Dept., 2011] ). Gotham opposes plaintiff's cross-motion contending that it is is premature because there has been no discovery ......
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