Cinao v. Reers
| Decision Date | 14 January 2010 |
| Citation | 27 Misc.3d 195,2010 N.Y. Slip Op. 20006,893 N.Y.S.2d 851 |
| Parties | Frederick CINAO, Plaintiff,v.Richard REERS, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Michael A. Freeman, Esq. of Greenberg Freeman, LLP, for Plaintiff.A. Michael Furman, Esq. of Furman Kornfiled & Brennan LLP, for Defendant.JACK M. BATTAGLIA, J.
With a Verified Complaint dated June 9, 2004, plaintiff Frederick Cinao commenced this action for legal malpractice against defendant Richard Reers. Plaintiff allegedly retained Defendant in April 2000 to assist him in connection with a trust created by Plaintiff's mother, who died the previous August, including proceedings in the Circuit Court of the First Circuit of the State of Hawaii. According to Plaintiff, Defendant failed to arrange for an appearance by Plaintiff in the Hawaii proceedings on three occasions, with the result that Plaintiff was removed as trustee and ordered to pay the attorney fees of his brother, also a party to the Hawaii proceedings.
Defendant also allegedly failed to make a final distribution to Plaintiff's brother, as required by the trust and court order, and failed to sell trust securities as required by the trust. In addition to the attorney fees, the Hawaii court ordered Plaintiff to pay interest on the amount of the unpaid distribution from the trust, and held him liable for losses sustained with respect to the securities.
The Verified Complaint clearly sounds only in negligence, and seeks damages in the approximate amount of $250,000.
Plaintiff now seeks leave, pursuant to CPLR 3025(b), to amend his Verified Complaint. The proposed Amended Verified Complaint purports to allege, in addition to a cause of action for legal malpractice, a cause of action pursuant to Judiciary Law § 487, which permits recovery of treble damages for certain attorney misconduct. The proposed Amended Verified Complaint alleges “negligent acts and/or omissions” (Proposed Amended Complaint, ¶ 18), comprised of failures to act or act properly, and withholding information from Plaintiff, with respect to the trust and the court proceedings in Hawaii; and alleges “specific acts of intentional misconduct and deception” ( id., ¶ 20), comprised of false representations and statements, including two letters to the presiding judge, and withholding of material information from Plaintiff, concerning the trust and Hawaii proceedings.
The damages alleged in the proposed Amended Verified Complaint follow those in the pending complaint, with the addition of unnecessary and excessive fees and expenses paid to Defendant; and, based upon allegations that Defendant “intentionally deceived the court, opposing counsel as well as his own client in the Hawaii proceeding in a manner that demonstrated a chronic and extreme pattern of legal delinquency” ( id., ¶ 19), “treble damages as well as punitive damages” pursuant to Judiciary Law § 487 ( id., ¶ 35.)
Judiciary Law § 487 “descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275.” ( See Amalfitano v. Rosenberg, 12 N.Y.3d 8, 12, 874 N.Y.S.2d 868, 903 N.E.2d 265 [2009].) The statute reads in its entirety:
§ 487. Misconduct by Attorneys
An attorney or counselor who:
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.
“A violation of Judiciary Law § 487(1) may be established either by the defendant's alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant'.” ( Boglia v. Greenberg, 63 A.D.3d 973, 975, 882 N.Y.S.2d 215 [2d Dept. 2009]
[ quoting Knecht v. Tusa, 15 A.D.3d 626, 627, 789 N.Y.S.2d 904 (2d Dept. 2005) ]
.)
“Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit.” ( Tyson v. Tower Ins. Co., NY, 68 A.D.3d 977, 979, 891 N.Y.S.2d 143 [2d Dept. 2009]; see also CPLR 3025[b].) “Mere lateness, unless coupled with prejudice, does not bar an amendment.” ( Matter of Rouson, 32 A.D.3d 956, 958, 821 N.Y.S.2d 258 [2d Dept. 2006].) “Where no prejudice is shown, an amendment may be allowed during or even after trial'.” ( Dinizio & Cook, Inc. v. Duck Creek Marina at Three Mile Harbor, Ltd., 32 A.D.3d 989, 990, 821 N.Y.S.2d 649 [2d Dept. 2006]
[ quoting Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 501, 285 N.Y.S.2d 55, 231 N.E.2d 756 (1967) ]
.)
“The defendants cannot legitimately claim surprise or prejudice, where the proposed amendments [are] premised upon the same facts, transactions or occurrences alleged in the original complaint.” ( Janssen v. Incorporated Vil. of Rockville Ctr., 59 A.D.3d 15, 27, 869 N.Y.S.2d 572 [2d Dept. 2008].) “Exposure to additional liability does not, in itself, constitute prejudice.” ( RCLA, LLC v. 50-09 Realty, LLC, 48 A.D.3d 538, 539, 852 N.Y.S.2d 211 [2d Dept. 2008].) “Prejudice requires that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position'.” ( Id.
[ quoting Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 (1981) ]
.)
In the absence of prejudice or surprise, the complaint in an action for legal malpractice may be amended unless the amendment is “patently devoid of merit.” ( See McCluskey v. Gabor & Gabor, 61 A.D.3d 646, 648, 876 N.Y.S.2d 162 [2d Dept. 2009].) “This means that ... the motion for leave to amend will be denied, in the absence of prejudice or surprise, only if the new cause of action would not withstand a motion to dismiss under CPLR 3211(a)(7).” ( Lucido v. Mancuso, 49 A.D.3d 220, 225, 851 N.Y.S.2d 238 [2d Dept. 2008].)
Although Defendant asserts prejudice and surprise, the only specific offered is that the proposed Judiciary Law § 487 claim is “a transparent attempt to gain leverage for the purpose of settlement” (Affirmation in Opposition to Motion to Amend the Complaint [“Affirmation in Opposition”],¶ ¶ 3, 11.) But that is not the type of prejudice or “surprise” that would warrant denial of leave to amend.
According to Plaintiff, and undisputed by Defendant, “due to various motions and procedural delays, including an unsuccessful motion for summary judgment, a failed effort at settlement that led to additional motion practice and an appeal to the Second Department, and Plaintiff having switched attorneys, discovery is still ongoing”; Defendant has not yet served any written discovery responses or produced any documents,” and “[n]either party has taken any depositions.” (Affirmation of Michael A. Freeman, Esq. in Support of Plaintiff's Motion to Amend the Complaint [“Affirmation in Support”] ¶ ¶ 17, 19, 20.) Except for conclusory allegations as to Defendant's fault, the only additional factual allegations in the proposed Amended Verified Complaint relate to two letters Defendant wrote to the presiding judge in Hawaii, matters clearly within Defendant's knowledge. The possibility of treble damage liability alone is not sufficient to warrant denial of leave to amend.
Defendant also contends, however, that the proposed cause of action pursuant to Judiciary Law § 487 is time-barred, and, assuming it is not, “such claim is patently devoid of merit as Judiciary Law § 487 applies only to actions by an attorney in matters pending in the courts of New York.” (Affirmation in Opposition, ¶ 17 [emphasis in original].) Whether considered an aspect of prejudice or surprise, or of lack of merit of the new claim, where the new claim clearly would be barred by the statute of limitations, leave to amend to assert it should be denied. ( See Shefa Unlimited, Inc. v. Amsterdam & Lewinter, 49 A.D.3d 521, 522, 856 N.Y.S.2d 118 [2d Dept. 2008].)
In the Second Department, a claim for treble damages pursuant to Judiciary Law § 487 is governed by the “three-year malpractice Statute of Limitations” found in CPLR 214(6). ( See Jorgensen v. Silverman, 224 A.D.2d 665, 665, 638 N.Y.S.2d 482 [2d Dept. 1996].) “Once a defendant has demonstrated that the statute of limitations has expired, [t]he burden is on the plaintiff to establish the applicability of the [relation back] doctrine' ” of CPLR 203(f). ( See Cardamone v. Ricotta, 47 A.D.3d 659, 660, 850 N.Y.S.2d 511 [2d Dept. 2008]
[ quoting Nani v. Gould, 39 A.D.3d 508, 509, 833 N.Y.S.2d 198 (2d Dept. 2007) ]
.) “A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” (CPLR 203[f].)
Defendant makes no particular showing that Plaintiff's proposed cause of action pursuant to Judiciary Law § 487 is barred by the statute of limitations, other than to state that the “claim is time-barred because said claim does not relate back to the date of the original complaint.” (Affirmation in Opposition, ¶ 12.) The only ground asserted for the contention that the claim “does not relate back” is that “the proposed amended complaint is not a mere extension' of the allegations of the original complaint.” ( id., ¶ 16
[ quoting krioutchkova v. gaad realty corp., 28 A.D.3d 427, 428, 814 N.Y.S.2d 171 (2d Dept. 2006) ]
; see also Shefa Unlimited, Inc. v. Amsterdam & Lewinter, 49 A.D.3d at 522, 856 N.Y.S.2d 118.)
The most recent date alleged in the proposed Amended...
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