Anghel v. Ruskin Moscou Faltischek, P.C.

• Decision Date: 27 January 2021
• Docket Number: 2017–06185,Index No. 7265/14
• Citation: 190 A.D.3d 903,141 N.Y.S.3d 95
• Parties: Maria–Lucia ANGHEL, etc., appellant, v. RUSKIN MOSCOU FALTISCHEK, P.C., et al., respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 903

141 N.Y.S.3d 95

Maria–Lucia ANGHEL, etc., appellant,

v.RUSKIN MOSCOU FALTISCHEK, P.C., et al., respondents.

2017–06185

Index No. 7265/14

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

Argued—November 9, 2020

January 27, 2021

Maria-Lucia Anghel, Oceanside, NY, appellant pro se.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Matthew J. Bizzaro of counsel), for respondents.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated May 8, 2017. The order, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate so much of a prior order of the same court dated October 30, 2015, as granted those branches of the defendants' motion which were to change the venue of the action from New York County to Nassau County and pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for legal malpractice.

ORDERED that the order dated May 8, 2017, is affirmed insofar as appealed from, with costs.

In 2008, the New York State Department of Health Bureau of Professional Medical Conduct (hereinafter the BPMC) charged the plaintiff, a physician board certified in anesthesiology and pain management, with 25 specifications of professional misconduct as set forth in Education Law § 6530. The plaintiff retained the defendant law firm Ruskin Moscou Faltischek, P.C. (hereinafter RMF), to defend her against such charges. The defendant Alexander G. Bateman, Jr., sued herein as Alexander G. Bateman, a member of RMF, appeared on the plaintiff's behalf at the hearing before the BPMC.

After the hearing, in its determination and order dated July 13, 2009, the BPMC found, inter alia, that the plaintiff practiced the profession of medicine fraudulently in violation of Education Law § 6530, and it sustained 24 of the 25 specifications against her. As a penalty, among other things, BPMC revoked the plaintiff's license to practice medicine in New York and imposed a fine in the amount of $240,000.

In January 2014, alleging that her defense before the BPMC was mishandled, the plaintiff commenced this action against RMF, Bateman, and the defendant Douglas J. Good in the Supreme Court, New York County, seeking to recover damages for legal malpractice, breach of contract, violation of Judiciary Law § 487, and breach of fiduciary duty. The defendants moved, inter alia, pursuant to CPLR 503, 510, and 51l to change the venue of this action from New York County to Nassau County, and pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated October 30, 2015, the Supreme Court, Nassau County, among other things, granted those branches of the defendants' motion which were to change the venue of this action to Nassau County, and to dismiss the cause of action alleging legal malpractice (hereinafter the October 2015 order). The plaintiff did not appeal from the October 2015 order.

In March 2017, the plaintiff moved pursuant to CPLR 5015(a)(2) and (3) to vacate so much of the October 2015 order as granted those branches of the defendants' motion which were to change the venue of the action to Nassau County and to dismiss the legal malpractice cause of action. In an order dated May 8, 2017, the Supreme Court, inter alia, denied the plaintiff's motion. The plaintiff appeals.

CPLR 5015(a)(2) permits a court to relieve a party from an order or judgment on the ground of newly discovered evidence. "Newly discovered evidence is evidence which was in existence but undiscoverable with due diligence at the time of the original order or judgment" ( Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753 ). "In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence ... and that the newly discovered evidence would probably have produced a different result" ( Wall St. Mtge. Bankers, Ltd. v....