Altman v. DiPreta

Decision Date27 April 2022
Docket Number2015-03521,Index 52574/14
Citation2022 NY Slip Op 02774
PartiesJeanne Altman, Plaintiff, v. Richard S. DiPreta, et al., Respondents, et al., Defendant. Charles Altman, Appellant,
CourtNew York Supreme Court

Altman Law Group LLC, Rye, NY (Charles Altman pro se of counsel) for appellant.

Housman & Associates, P.C., Tarrytown, NY (Mark E Housman of counsel), for respondents Richard S. DiPreta and DiPreta Law firm, L.L.P.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless of counsel), for respondent Richard J Slagle.

BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, tortious interference with contractual relations, and violation of Judiciary Law § 487, the plaintiff Charles Altman appeals from an order of the Supreme Court, Westchester County (Francesca E. Connolly, J.), entered March 24, 2015. The order, insofar as appealed from, granted the separate motions of the defendant Richard J. Slagle and the defendants Richard S. DiPreta and DiPreta Law Firm, LLP, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order as granted those branches of the separate motions of the defendant Richard J. Slagle and the defendants Richard S. DiPreta and DiPreta Law Firm, LLP, which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them by the plaintiff Jeanne Altman is dismissed, as the plaintiff Charles Altman is not aggrieved thereby (see CPLR 5511); and it is further, ORDERED that the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

In 2010, Jeanne Altman (hereinafter Jeanne) executed a durable power of attorney in favor of her two sons, Charles Altman (hereinafter Charles) and Edwin Altman (hereinafter Edwin). Following the deterioration of Jeanne's mental faculties, Charles and Edwin had disagreements about her care. Charles retained the defendant Richard Slagle, a Connecticut attorney, to represent Jeanne. Charles then commenced a conservatorship proceeding in Connecticut, where Jeanne was then residing. By decree dated December 4, 2012, the Probate Court of Greenwich, Connecticut (hereinafter the Probate Court), appointed the defendant Richard S. DiPreta, a Connecticut attorney, as conservator of Jeanne's estate, and appointed Charles as conservator of her person.

DiPreta subsequently petitioned the Probate Court for the removal of Charles as conservator of Jeanne's person. By decree dated August 2, 2013, the Probate Court removed Charles as conservator, finding, inter alia, that Charles had improperly brought Jeanne from Connecticut to New York without court approval, and that Charles failed to act in Jeanne's best interests.

In February 2014, Charles and Jeanne (hereinafter together the plaintiffs) commenced this action in New York against, among others, DiPreta and DiPreta Law Firm LLC (hereinafter together the DiPreta defendants), and Slagle, inter alia, to recover damages for legal malpractice, tortious interference with contractual relations, and violation of Judiciary Law § 487. In an amended complaint, the plaintiffs alleged, among other things, that the DiPreta defendants and Slagle engaged in "deceit and collusion" as part of a plan to retain control over Jeanne's assets and withhold payments to Charles. The DiPreta defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging tortious interference with contractual relations and violation of Judiciary Law § 487 insofar as asserted against them. Slagle separately moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against him for lack of personal jurisdiction, and pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 insofar as asserted against him. In an order dated March 24, 2015, the Supreme Court, among other things, granted those branches of the separate motions. Charles appeals.

"When a defendant objects to the court's exercise of personal jurisdiction, the ultimate burden of proof rests upon the plaintiff" (Lowy v Chalkable, LLC, 186 A.D.3d 590, 591). "However, '[i]n opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists'" (id. at 591, quoting Skutnik v Messina, 178 A.D.3d 744, 744-745).

CPLR 302(a) provides, in relevant part, that a New York court may exercise personal jurisdiction over any non-domiciliary who "transacts any business within the state" (id. § 302[a][1]) or "commits a tortious act within the state" (id. § 302[a][2]). Here, in opposition to Slagle's motion, the plaintiffs failed to make a prima facie showing that personal jurisdiction over Slagle existed under CPLR 302(a)(1) or (2). The conduct alleged by the plaintiffs pertaining to Slagle either occurred in Connecticut in connection with the conservatorship proceeding or did not constitute a "tortious act" (id. § 302[a][2]). The record is also insufficient to establish that Slagle conducted sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail himself of the benefits and protections of New York's laws (see id. § 302[a][1]; Abad v Lorenzo, 163 A.D.3d 903, 905; Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 A.D.3d 977, 979-980). Further, contrary to Charles' contention, the plaintiffs failed to make a sufficient showing to warrant holding Slagle's motion in abeyance while discovery is conducted on the issue of jurisdiction (see Abad v Lorenzo, 163 A.D.3d at 905; Mejia-Haffner v Killington, Ltd., 119 A.D.3d 912, 915). Accordingly, the Supreme Court properly granted that branch of Slagle's motion which was pursuant to CPLR 3211(8) to dismiss the complaint insofar as asserted against him by Charles for lack of personal jurisdiction.

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction and the court must 'accept the facts as alleged in the complaint as true accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Berkovits v Berkovits, 190 A.D.3d 911, 914-915, quoting Leon v Martinez, 84 N.Y.2d 83, 87-88; see ...

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