Burbacki v. Abrams, Fensterman, Fensterman, Eisman, Formatto, Ferrara & Wolf, LLP

• Decision Date: 15 April 2016
• Docket Number: Index No. 509725-2015
• Citation: 2016 NY Slip Op 30749 (U)
• Parties: ELLA BURBACKI, Plaintiff, v. ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATTO, FERRARA & WOLF, LLP, et al Defendants.
• Court: New York Supreme Court

2016 NY Slip Op 30749(U)

ELLA BURBACKI, Plaintiff,
v.
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATTO,
FERRARA & WOLF, LLP, et al Defendants.

Index No. 509725-2015

New York Supreme Court

RECEIVED: April 26, 2016
April 8, 2016
April 15, 2016

NYSCEF DOC. NO. 31

At an IAS Term, Part 4 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 8^st day of APRIL, 2016

PRESENT: HON. DAVID B. VAUGHAN Justice.

The following papers were read on this motion:

	Papers Numbered
Notice of Motion/Order to Show Cause/; Petition/Cross Motion and; Affidavits (Affirmations) Annexed	1
Opposing Affidavits (Affirmations)	2
Reply Affidavits (Affirmations)	3, 4
__________ Affidavit (Affirmation)	___
Other Papers	5, 6

Defendants move to dismiss pursuant to CPLR §§ 3016 and 3211 (a)(1), (3), (5) and (7). Plaintiff Ella Burbacki ("Burbacki" or "plaintiff") opposes the motion.

The main thrust of the plaintiff's complaint is that she would have been successful in her claims and legal actions against Gorelik, the plaintiff in Gorelik et al v Burbacki, et al, Index No 18128-2008, Stuart Wachs, Esq ("Wachs" or "first attorney")--her prior counsel, and Richard Kaplan ("Kaplan")--her accountant, had it not been for the

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defendants' actions and/or omissions in advising her about the bankruptcy process prior to her filing for bankruptcy and in the preparation and filing of her bankruptcy petition.

The following facts are stated in the plaintiff's complaint. Ella Burbacki was a named defendant in Gorelik et al v Burbacki, et al, Index No 18128-2008 in 2008 ("Gorelik matter"). She was initially represented in that action by Stuart Wachs, Esq, ("Wachs" or "first attorney"), who was recommended to her by her accountant Richard Kaplan ("Kaplan" or "accountant"). In 2011 Plaintiff sought to obtain new counsel and retained the defendant on December 14, 2011. Upon Burbacki's failure to compensate her first attorney $80,000 and the accountant $20,000, they refused to turn over her files to her new counsel, the defendants in the instant matter.

After the defendants made several appearances for plaintiff in court, Burbacki's matter was set for trial for March 22, 2012. Unable to compensate either Wachs and Kaplan for their past litigation work or to pay her newly retained attorneys for litigation work going forward, Burbacki filed for bankruptcy. Prior to filing for bankruptcy, Burbacki's greatest concern was that her house be protected. On or about March 20, 2012, Burbacki filed a voluntary petition under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of New York.

On April 25, 2012 Burbacki learned that the bankruptcy trustee's position was that Burbacki was a 100% owner of the house and that he was going to argue his position to the bankruptcy court. The bankruptcy court agreed with the trustee, Burbacki's home became part of the bankruptcy estate and Burbacki moved to dismiss her own bankruptcy petition. Burbacki's motion was opposed by the bankruptcy trustee, Gorelik, Wachs and Kaplan-creditors in the bankruptcy action. The trustee further argued to the bankruptcy

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court that there was another potential creditor, the First National Bank of Jeffersonville, which had a large deficiency judgement against Burbacki.

On August 6, 2012 Burbacki signed a consent to change attorneys, and retained Robert Musso, Esq of Rosenberg, Musso and Weiner LLP ("Musso", "3d counsel" or "bankruptcy attorney"). On August 23, 2012, the bankruptcy court adjoined Burbacki's bankruptcy matter and lifted the stay based upon other existing creditors that may chose to enter the action in the interim. Burbacki settled with Wachs and Kaplan for $55,000 out of $100,000, in exchange for her signing a general release. On March 4, 2013 the jury found Burbacki liable to Gorelik and on November 22, 2013 the jury unanimously found that Burbacki owed Gorelik the total sum of $331,423.04. By Order dated April 4^th,...