Betz v. Arnold W. Blatt, Anthony J. Pieragostini, George A. Sirignano, Jr. & Enea, Scanlan & Sirignano, LLP

• Decision Date: 01 August 2012
• Docket Number: NYSCEF DOC. NO. 100,INDEX NO.: 58938/11
• Citation: 2012 NY Slip Op 33581
• Court: New York Supreme Court
• Parties: DEBRA BETZ, as Administratix of the Estate of Carmelo Carbone aka Mel Carbone, Plaintiff, v. ARNOLD W. BLATT, ANTHONY J. PIERAGOSTINI, GEORGE A. SIRIGNANO, JR. and ENEA, SCANLAN & SIRIGNANO, LLP, Defendants.

2012 NY Slip Op 33581

DEBRA BETZ, as Administratix of the Estate
of Carmelo Carbone aka Mel Carbone, Plaintiff,
v.
ARNOLD W. BLATT, ANTHONY J. PIERAGOSTINI,
GEORGE A. SIRIGNANO, JR. and ENEA,
SCANLAN & SIRIGNANO, LLP, Defendants.

NYSCEF DOC. NO. 100
INDEX NO.: 58938/11

SUPREME COURT OF THE STATE OF NEW YORK IAS PART, WESTCHESTER COUNTY

MOTION DATE: June 29, 2012
Filed: August 1, 2012

DECISION AND ORDER

To commence the statutory period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this Order, with notice of entry, upon all parties.

Present: HON. MARY H. SMITH
Supreme Court Justice

The following papers numbered 1 to 24 were read on this motion by defendants Sirignano and Enea, Scanlan & Sirignano, LLP (collectively defendants "Sirignano") for an Order pursuant to CPLR 3211 dismissing this action, etc., and on this separate motion by defendant Pieragostini for an Order pursuant to CPLR 3211 dismissing this action, etc., and on this separate cross-motion (sic)¹ by defendant Blatt for summary judgment dismissing the complaint.

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Papers Numbered
Notice of Motion - Affirmation (Anesh) - Exhs. (A-D) - Memorandum of Law	1 - 4
Answering Affirmation (Frisenda) - Exhs. (A-H) - Memorandum Of Law	5 - 7
Replying Affirmation (Anesh) - Exh. - Memorandum of Law	8 - 10
Notice of Motion - Affirmation (Rosen) - Exhs. (A-C) - Memorandum of Law	11 - 14
Answering Affirmation (Frisenda) - Exhs. (A-E) - Memorandum of Law	15 - 17
Replying Affirmation (Rosen) - Memorandum of Law	18 - 19
Notice of Motion - Affirmation (Isaacson) - Exhs.2	20 - 22
Answering Affirmation (Farber) - Exhs. (A-O)	23 - 24

Upon the foregoing papers, it is Ordered and adjudged that these motions by defendants are disposed of as follows:

This unfortunate action arises from a Will of decedent Carmelo Carbone who had died, on May 13, 2004. Mr. Carbone's will had named his brother, Mike Carbone ("Carbone"), as Executor of his Estate, and decedent's two daughters, Debra Betz and Kristin Carbone-Lopez, were the primary beneficiaries thereunder, with the Estate's estimated gross value at the time of Mr. Carbone's death to have been approximately $2 million, comprised of real estate holdings, liquid assets and a 1962 Vintage Corvette. From the inception of his qualifying and serving as Executor, Carbone had begun looting the assets of the Estate, and the only individuals who apparently had benefitted by the Will were Carbone, and his two

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children. By the time the Westchester County Surrogate, in a contested proceeding challenged by Betz, had suspended Carbone's letters, on April 13, 2011,³ the value of the Estate had been reduced to approximately $110,000.00.⁴

Defendants named herein are all attorneys who had represented the Estate and/or Carbone sequentially throughout the probate; defendant Blatt, who had represented the decedent for several decades, had filed the petition for probate on behalf of Carbone, on August 15, 2004, and he had continued to represent Carbone and the Estate until the summer of 2006, at which time he essentially had been fired. Thereafter, defendant Pieragostini had been retained to represent the Estate, from about February 18, 2009 to July 24, 2009, and it had been he who ultimately had filed both the original Estate Accounting, which subsequently had been found inadequate and insufficient by the Surrogate, as well as the Amended Estate Accounting that had been Ordered by the Surrogate to be filed. Defendants Sirignano and his law firm defendant Enea,

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Scanlan & Sirignano, LLP (collectively defendants "Sirignano") thereafter had been retained by Carbone, "individually and as Executor of the Estate of Carbone," in November, 2009.

Plaintiff Estate alleges in its amended complaint that these defendant attorneys all had been professionally negligent in the handling of their Estate duties, that they had committed malpractice, that they had aided and abetted Carbone in his wrongful depletion of the Estate assets, that they had in engaged in fraud, that they had breached their fiduciary duties and duties of trust, that they had conflicts of interest in their representation of Carbone as against the Estate, and that they had violated Judiciary Law section 487.

By Decision and Order, dated March 6, 2012, this Court had granted the separate motions of defendants Sirignano and Pieragostini for an Order pursuant to CPLR 3024(a), 3013, 3014 and 3016(b), to the extent of its requiring plaintiff to re-plead its 43-page complaint, this Court having directed plaintiff to serve an amended complaint setting forth allegations:

against defendants in clear, plain and concise statements which sufficiently give defendants notice of the transactions and occurrences and elements of each asserted cause of action asserted against each defendant, in accordance with CPLR 3013, and which shall include single allegations in the numbered paragraphs, in accordance with CPLR 3014, with particularization of the allegations and claims as against each defendant, in accordance with CPLR

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3016, subdivision (b), and which otherwise omit what this Court agrees with defendants are vague allegations which presently preclude a properly framed response and further improperly contain scandalous and prejudicial matter which is extraneous to the alleged theories of liability, contrary to CPLR 3024. Plaintiff throughout her complaint improperly has lumped all of the defendants together under the variously identified overlapping theories of liability, notwithstanding that plaintiff herself sets forth a chronology of events which establishes that the various named defendants had represented the Estate at different times, none of which had overlapped. The Court finds that, while certain allegations may be directed against an individually named defendant, that it presently is impossible for defendants to frame an answer to the complaint in its present form.

Plaintiff thereafter had served its amended complaint. Presently, defendants Sirignano are moving pre-answer to dismiss same, arguing that plaintiff has failed to state a cause of action, that the documentary evidence warrants dismissal, that the complaint fails to allege fraud with the particularity required by CPLR 3016, subdivision (b) , and that the amended complaint, "in complete defiance" of this Court's prior Order, continues to include a "rambling recitation" and "continues to assert, indiscriminately and without any specificity, various allegations as against all of the defendants, with regard to various transactions and events that have occurred over a span of more than seven years." He also seeks an award of costs pursuant to 22 N.Y.C.R.R. 130-1.1.

Defendant Pieragostini similarly is moving pre-answer for

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dismissal based upon an alleged failure to state a cause of action, and similarly arguing that the amended complaint fails to comply with this Court's Order directing re-pleading, and that the fraud claim is not pleaded with the required particularity.

Defendant Blatt is moving for summary judgment dismissing the complaint, arguing that the five asserted claims against him all sound in malpractice but that no such claim exists because plaintiff cannot establish that it has sustained actual damages and, in any event, no claim of damage is directly attributable to Blatt, who had been fired, and that the record establishes that Blatt had refused to file the accounting performed by Carmela Carbone, Carbone's daughter, and that plaintiff merely has made serious allegations without having supported same with necessary facts.

Initially, the Court finds that, although the amended complaint now is 78 pages in length, compared to the original 43-pages, and that it clearly contains some allegations which improperly "lump" together allegations against all defendants (for example, paragraphs 28, 32, 40 and 44), and that it also continues to contain unnecessary allegations, including verbatim recitation of four letters and approximately five pages from the Order of Surrogate Scarpino, nevertheless, it sufficiently complies with this Court's prior Order and CPLR requirements to the extent that

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plaintiff now sufficiently has separately segregated out the various claims and allegations as against defendants, defendant Pieragostini's claim to the contrary notwithstanding, and the Court finds no basis for finding that defendants cannot interpose their responses and/or answers to the amended complaint, particularly since the...