Amendola v. Kendzia

• Decision Date: 29 April 2005
• Docket Number: CA 04-01511.
• Citation: 2005 NY Slip Op 03472,793 N.Y.S.2d 811,17 A.D.3d 1105
• Parties: FRANK A. AMENDOLA et al., Plaintiffs, v. BARBARA A. KENDZIA, Individually and on Behalf of CCB ASSOCIATES, a New York General Partnership, Defendant and Counterclaim Plaintiff-Appellant. FRANK A. AMENDOLA et al., Counterclaim Defendants-Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 1105

793 N.Y.S.2d 811

2005 NY Slip Op 03472

FRANK A. AMENDOLA et al., Plaintiffs, v. BARBARA A. KENDZIA, Individually and on Behalf of CCB ASSOCIATES, a New York General Partnership, Defendant and Counterclaim Plaintiff-Appellant.

FRANK A. AMENDOLA et al., Counterclaim Defendants-Respondents. (Appeal No. 1.)

CA 04-01511.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 29, 2005.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 16, 2004. The order granted the motion and cross motion of counterclaim defendants and dismissed counterclaims one through four as time-barred and granted the motion of counterclaim defendant Anthony D. Parone for a protective order.

It is hereby ordered that said appeal from the order insofar as it dismissed counterclaims one through four be and the same hereby is unanimously dismissed and the order is modified on the law by denying the motion of counterclaim defendant Anthony D. Parone and as modified the order is affirmed without costs.

Memorandum:

This action was commenced by three general partners and the partnership against a fourth general partner, who counterclaimed individually and on behalf of the partnership against the individual plaintiffs. Four of the six counterclaims are asserted against the three general partners: the first counterclaim is for fraudulent inducement, the third counterclaim is for breach of fiduciary duty, the fourth counterclaim is for an accounting, and the sixth counterclaim is for breach of contract. Those counterclaims arise from the alleged breach by the individual plaintiffs of various obligations relating to their alleged oral agreement to reconvey to the partnership certain real property formerly owned by the partnership but now owned by Frank A. Amendola, a plaintiff and counterclaim defendant. The second counterclaim is asserted against Amendola only and seeks to impose a constructive trust on the real property, and the fifth counterclaim alleges legal malpractice by plaintiff and counterclaim defendant Anthony D. Parone, who is an attorney as well as a general partner, in connection with the foregoing alleged transaction.

In appeal No. 1, Barbara A. Kendzia, the defendant and counterclaim plaintiff, appeals from an order that granted the motion of Amendola and Joseph P. Bruno, the third individual plaintiff and counterclaim defendant, to dismiss the first through fourth counterclaims against them as time-barred; granted the cross motion of Parone seeking dismissal of the first through fourth counterclaims against him as time-barred (despite the fact that the second counterclaim is asserted against Amendola only); and granted the separate motion of Parone for a protective order with respect to "all confidential attorney-client communications requested by [Kendzia]."

Insofar as it dismissed the first four counterclaims as time-barred, the order in appeal No. 1 was superseded by the subsequent order in appeal No. 2. Consequently, we dismiss the appeal from the order in appeal No. 1 insofar as Supreme Court dismissed the first four counterclaims (see Baker v Baker [appeal No. 2], 199 AD2d 967, 967-968 [1993]; Cooper v Cooper & Clement, 198 AD2d 812, 813 [1993]; see generally Loafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]).

We otherwise modify the order in appeal No. 1 by denying Parone's motion for a protective order. Parone failed to sustain his burden of establishing that the information and documents sought by Kendzia are protected by the attorney-client privilege (see Matter of Civil Serv. Empls. Assn. v Ontario County Health Facility, 103 AD2d 1000, 1000-1001 [1984], lv dismissed 64 NY2d 816 [1985]; see also Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd's, 263 AD2d 367, 368 [1999], lv dismissed 94 NY2d 875 [2000]; see generally Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378 [1991]).

In appeal No. 2, Kendzia appeals from a subsequent order implicitly granting that part of her motion seeking leave to reargue with respect to, inter alia, the prior order dismissing the first through fourth counterclaims and, upon reargument, adhering to the prior decision dismissing those counterclaims as time-barred. In addition, the order granted the motion of Amendola and Bruno seeking dismissal of the sixth counterclaim against them as time-barred and removal of the lis pendens filed by Kendzia. The order further dismissed the fifth and sixth counterclaims against Parone as time-barred, thereby implicitly granting his amended cross motion for that relief. Alternatively, the court dismissed counterclaims two and six as barred by the statute of frauds. In addition, the order denied that part of the cross motion of Kendzia seeking leave to amend her answer with counterclaims and seeking to stay "any cancellation" of her lis pendens.

Addressing first the court's alternative basis for dismissing the second and sixth counterclaims based on the statute of frauds, we conclude that the court erred in dismissing the second counterclaim on that ground. The statute of frauds does not furnish a defense to a cause of action seeking to impress a constructive trust on real property (see Dombek v Reiman, 298 AD2d 876, 877 [2002]; Zongrone v Zongrone, 278 AD2d 915 [2000]; see also Cilibrasi v Gagliardotto, 297 AD2d 778, 779 [2002]). We further conclude, however, that the court properly dismissed the sixth counterclaim, for breach of contract, based on the statute of frauds....