Linden v. Moskowitz
| Decision Date | 02 May 2002 |
| Citation | 294 A.D.2d 114,743 N.Y.S.2d 65 |
| Parties | BONNEE LINDEN, Appellant,<BR>v.<BR>BRIAN MOSKOWITZ, ESQ., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
The motion court properly determined that the claim for fraud against the moving attorney defendants and law firms, based on allegations that an action involving appellant had been improperly settled, is barred by the six-year Statute of Limitations. Appellant's attempt to rely on the two-year discovery rule (CPLR 203 [g]; 213 [8]) was properly rejected inasmuch as the record establishes that she was aware, in 1991, of the circumstances surrounding the settlement of the action (see, Lentini v Lentini, 280 AD2d 330).
The remaining claims against the attorney defendants— breach of fiduciary duty, breach of contract, attorney malpractice and civil conspiracy—are also time-barred since they arose from the same set of alleged facts as the fraud claim, and are well beyond the six-year statutory period for breach of contract or the three-year statute of limitations for malpractice.
In any event, the fraud claim against the attorney defendants and law firms was properly dismissed for failure to state the circumstances of the alleged fraud in detail, in accordance with the requirement of CPLR 3016 (b) (see, e.g., Longo v Butler Equities II, 278 AD2d 97, 97-98). There is no allegation that the defendants knowingly misrepresented a material fact much less that plaintiff relied upon such a misrepresentation to her detriment. The fraud claim asserted in the first cause of action against Brian Moskowitz, Esq. is similarly deficient.
Since the underlying fraud claim is not viable, the civil conspiracy claim was properly dismissed (see, Small v Lorillard Tobacco Co., 94 NY2d 43, 57).
The breach of fiduciary duty claim fails against defendants Skadden, Arps, Slate, Meagher and Flom, Henry P. Baer, Cullen and Dykman, and Irwin Silbowitz since none of these defendants represented appellant in the prior litigation (see, Polovy v Duncan, 269 AD2d 111, 112). Similarly, the attorney malpractice, breach of fiduciary duty and breach of contract claims against these defendants were properly dismissed since the complaint fails to allege the existence of an attorney-client relationship, or indeed, any other contractual relationship with defendants (see, D'Amico v First Union Natl. Bank, 285 AD2d 166, 172). For the same reason, the eighth cause of action against Brian Moskowitz for attorney malpractice was properly dismissed. The claims against Albert Lewis were properly dismissed inasmuch as the complaint makes no allegations giving rise to either a breach of fiduciary duty or attorney malpractice claim.
The attorney malpractice and breach of fiduciary duty claims against Henry Portnoy, who represented appellant at one point in the prior litigation, were properly dismissed since the resolution of their fee dispute barred the subsequent claim for malpractice (see, Koppelman v Liddle, O'Connor, Finkelstein & Robinson, 246 AD2d 365) and resolved all issues between the parties.
The claim for quantum meruit, asserted against all the moving defendants, was properly dismissed since there was no allegation...
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...duty necessarily fails (see Kagan v. HMC–New York, Inc., 94 A.D.3d 67, 939 N.Y.S.2d 384 [1st Dept.2012] ; Linden v. Moskowitz, 294 A.D.2d 114, 743 N.Y.S.2d 65 [1st Dept.2002] ; Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999] ). Accordingly, the thir......
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