Gorbatov v. Tsirelman
| Decision Date | 15 November 2017 |
| Citation | 65 N.Y.S.3d 71,155 A.D.3d 836 |
| Parties | Yevgeny GORBATOV, et al., respondents, v. Gary TSIRELMAN, etc., et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
155 A.D.3d 836
65 N.Y.S.3d 71
Yevgeny GORBATOV, et al., respondents,
v.
Gary TSIRELMAN, etc., et al., appellants.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 15, 2017.
Traub, Lieberman, Straus & Shrewsberry, LLP, Hawthorne, NY (Lisa L. Shrewsberry and Christopher Russo of counsel), for appellants Gary Tsirelman and Law Office of Gary Tsirelman, P.C.
Van Leer & Greenberg, New York, NY (Howard B. Greenberg and Evan Van Leer–Greenberg of counsel), for appellants Leon Kucherovsky and Law Office of Leon Kucherovsky, P.C.
William Pager, Brooklyn, NY, for respondents.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and ANGELA G. IANNACCI, JJ.
Appeals from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated June 22, 2015. The order denied, without prejudice and with leave to renew upon the completion of discovery, the motion of the defendants Gary Tsirelman and the Law Office of Gary Tsirelman, P.C., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and the separate motion of the defendants Leon Kucherovsky and the Law Office of Leon Kucherovsky, P.C., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them or, in the alternative, pursuant to CPLR 603 to sever the action insofar as asserted against them from the remainder of the action.
ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying, without prejudice, those branches of the defendants' separate motions which were pursuant to CPLR 3211(a) to dismiss the unjust enrichment cause of action insofar as asserted against each of them, and substituting therefor provisions granting those branches of the motions, and (2) by deleting the provisions thereof denying, without prejudice, those branches of the motion of the defendants Leon Kucherovsky and the Law Office of Leon Kucherovsky,
P.C., which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant the Law Office of Leon Kucherovsky, P.C., and to dismiss the complaint insofar as asserted against the defendant Leon Kucherovsky by the plaintiff Yevgeny Gorbatov, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff Yevgeny Gorbatov is a licensed acupuncturist and the principal of the six corporate plaintiffs. The defendants Gary Tsirelman and the Law Office of Gary Tsirelman, P.C. (hereinafter together the Tsirelman defendants), and Leon Kucherovsky and the Law Office of Leon Kucherovsky, P.C. (hereinafter together the Kucherovsky defendants), are attorneys who represented some or all of the plaintiffs in hundreds of matters involving the collection of unpaid medical bills from insurers. The plaintiffs commenced this action against the defendants asserting causes of action to recover damages for legal malpractice, violation of Judiciary Law § 487, and unjust enrichment, and seeking accountings. The Tsirelman defendants and the Kucherovsky defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In the alternative, the Kucherovsky defendants sought severance of the action insofar as asserted against them pursuant to CPLR 603. The Supreme Court denied the motions without prejudice and with leave to renew upon the completion of discovery, pursuant to CPLR 3211(d). The Tsirelman defendants and the Kucherovsky defendants separately appeal.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be
afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026 ; Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 993 N.Y.S.2d 353 ). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ; see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ).
A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the complaint's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual
Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Cavaliere v. 1515 Broadway Fee Owner, LLC, 150 A.D.3d 1190, 1191, 57 N.Y.S.3d 171 ).
Contrary to the defendants' contentions, the Supreme Court properly denied, without prejudice to renew upon the conclusion of discovery, those branches of their motions which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the legal malpractice and Judiciary Law § 487 causes of action. To plead a claim for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 ). "An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if ‘but for’ the attorney's negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages" ( id. at 50, 19 N.Y.S.3d 488, 41 N.E.3d 353 [internal quotation marks and citation omitted]; see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338 ; AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 ). Under Judiciary Law § 487, an attorney who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or ... [w]ilfully delays his client's suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, [i]s guilty of a misdemeanor, and [is liable for] treble damages, to be...
To continue reading
Request your trial
-
Joseph v. Fensterman
...and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" ( Gorbatov v. Tsirelman, 155 A.D.3d 836, 837, 65 N.Y.S.3d 71 ). " ‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dism......
-
Webster v. Sherman
...quotation marks omitted]; see CPLR 3026 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Gorbatov v. Tsirelman, 155 A.D.3d 836, 837, 65 N.Y.S.3d 71 ; Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 673, 993 N.Y.S.2d 353 ). Although the facts pleaded are pr......
-
Strujan v. Kaufman & Kahn, LLP
...(see Betz v. Blatt, 160 A.D.3d 696, 698, 74 N.Y.S.3d 75 ; Betz v. Blatt, 116 A.D.3d 813, 815, 984 N.Y.S.2d 378 ; Gorbatov v. Tsirelman, 155 A.D.3d 836, 840, 65 N.Y.S.3d 71 ; DeMartino v. Golden, 150 A.D.3d 1200, 1201, 52 N.Y.S.3d 892 ; Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.......
-
Basile v. Riley
...entity does not legally exist, and plaintiff failed to raise a triable issue of fact in opposition (see Gorbatov v. Tsirelman , 155 A.D.3d 836, 839-840, 65 N.Y.S.3d 71 [2d Dept. 2017] ). We further agree with defendants that the court erred in denying that part of their motion seeking to co......