Betz v. Blatt

• Decision Date: 16 April 2014
• Citation: 2014 N.Y. Slip Op. 02554,116 A.D.3d 813,984 N.Y.S.2d 378
• Parties: Debra BETZ, etc., appellant-respondent, v. Arnold W. BLATT, et al., respondents, George A. Sirignano, Jr., et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 813
984 N.Y.S.2d 378
2014 N.Y. Slip Op. 02554

Debra BETZ, etc., appellant-respondent,
v.
Arnold W. BLATT, et al., respondents,
George A. Sirignano, Jr., et al., respondents-appellants.

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

April 16, 2014.

[984 N.Y.S.2d 380]

Bashian & Farber, LLP, White Plains, N.Y. (Irving O. Farber of counsel), for appellant-respondent.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Mark K. Anesh of counsel), for respondents-appellants.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless of counsel), for respondent Anthony J. Pieragostini.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and HECTOR D. LASALLE, JJ.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated August 1, 2012, as granted those branches of the motion of the defendant Arnold W. Blatt which were, in effect, pursuant to CPLR 3211(a) to dismiss the second through fifth causes of action, granted those branches of the motion of the defendant Anthony J. Pieragostini which were pursuant to CPLR 3211(a) to dismiss the seventh through tenth causes of action, and granted those branches of the motion of the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, which were pursuant to CPLR 3211(a) to dismiss the twelfth through fifteenth causes of action, and the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, cross-appeal from so much of the same order as denied that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the eleventh cause of action.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, which was pursuant to CPLR 3211(a) to dismiss the eleventh cause of action, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, which was pursuant to CPLR 3211(a) to dismiss the fourteenth cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant Anthony J. Pieragostini, payable by the plaintiff.

This action, inter alia, to recover damages for legal malpractice, challenges the work performed by attorneys and law firms who represented an executor of a decedent's estate, who was removed for cause. In his will, the decedent left the bulk of his estate to his daughters, the plaintiff and Christina Carbone–Lopez. The decedent also named his brother, Michaelangelo Carbone (hereinafter Carbone), as executor. After contested probate proceedings, including a contested accounting, Carbone's letters testamentary were suspended and he was surcharged in excess of $1,025,000 for his looting and mismanagement of the estate. On prior appeals from orders of the Surrogate's Court, this Court upheld those sanctions ( see Matter of Carbone, 101 A.D.3d 866, 955 N.Y.S.2d 209). The plaintiff was substituted as executor.

In her capacity as executor, the plaintiff commenced this action alleging, inter alia, legal malpractice by the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano, LLP (hereinafter together the

[984 N.Y.S.2d 381]

Sirignano defendants), Arnold W. Blatt, and Anthony J. Pieragostini. Each of the defendants represented Carbone in the contested probate proceedings.

Pieragostini and the Sirignano defendants separately moved, pursuant to CPLR 3211(a), to dismiss the causes of action asserted against them. Blatt moved for summary judgment dismissing the causes of action asserted against him, but the Supreme Court deemed his motion a motion pursuant to CPLR 3211(a). In the order appealed from, the court denied those branches of the respective motions which were to dismiss the first, sixth, and eleventh causes of action, which alleged legal malpractice. However, the court granted those branches of the respective motions which were to dismiss the second, seventh, and twelfth causes of action, which alleged breach of fiduciary duty; the third, eighth, and thirteenth causes of action, which alleged fraud and breach of trust; the fourth, ninth, and fourteenth causes of action, which sought disgorgement and restitution of attorneys' fees and...