Siskin v. Cassar

• Decision Date: 12 November 2014
• Docket Number: 2012-07684
• Citation: 997 N.Y.S.2d 86,122 A.D.3d 714,2014 N.Y. Slip Op. 07646
• Parties: Barry SISKIN, appellant, v. Christopher J. CASSAR, et al., respondents.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 714
997 N.Y.S.2d 86
2014 N.Y. Slip Op. 07646

Barry SISKIN, appellant
v.
Christopher J. CASSAR, et al., respondents.

2012-07684

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

Nov. 12, 2014.

997 N.Y.S.2d 87

Barry Siskin, New York, N.Y., appellant pro se.

Christopher J. Cassar, P.C., Huntington, N.Y. (Christopher J. Cassar, pro se of counsel), respondent pro se and for respondents Christopher J. Cassar, Esq., Christopher J. Cassar, Attorney–at–Law, Christopher J. Cassar, Inc., Christopher J. Cassar, Co., Christopher J. Cassar, LLC, Eliza Pogue, and William Pogue.

Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y. (Samantha B. Lansky of counsel), for respondents Harleysville and Harleysville Insurance Company.

Schnader Harrison Segal & Lewis LLP, New York, N.Y. (Theodore L. Hecht of counsel), for respondents American Arbitration Association and Sheila Paticoff.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.

Opinion

122 A.D.3d 714

In an action, inter alia, to recover damages for negligence and breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Cohalan, J.), dated June 15, 2012, which, upon, among other things, an order of the same court dated December 21,

997 N.Y.S.2d 88

2011, inter alia, granting the separate

122 A.D.3d 715

motions of the defendants Christopher J. Cassar, Christopher J. Cassar, Esq., Christopher J. Cassar, Attorney–at–Law, Christopher J. Cassar, Inc., Christopher J. Cassar, Co., Christopher J. Cassar, LLC, Eliza Pogue, and William Pogue, the defendants Harleysville and Harleysville Insurance Company, and the defendants American Arbitration Association and Sheila Paticoff pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, in effect, is in favor of the defendants and against him, dismissing the complaint.

ORDERED that the judgment is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

The plaintiff commenced this action against Christopher J. Cassar, Christopher J. Cassar, P.C., Christopher J. Cassar, Esq., Christopher J. Cassar, Attorney–at–Law, Christopher J. Cassar, Inc., Christopher J. Cassar, Co., and Christopher J. Cassar, LLC (hereinafter collectively the Cassar defendants), Eliza Pogue and William Pogue (hereinafter together the Pogue defendants), Harleysville and Harleysville Insurance Company (hereinafter together the Harleysville defendants), and the American Arbitration Association and Sheila Paticoff (hereinafter together the AAA defendants). The plaintiff sought to recover, inter alia, a contingency fee related to the settlement of an arbitration of the Pogue defendants' underinsured motorist claim against the Harleysville defendants. The plaintiff alleged that the Pogue defendants engaged his services to prosecute a claim for personal injuries sustained by Eliza Pogue in an automobile accident, that he filed a demand for arbitration against the Harleysville defendants, that the arbitration was settled with the defendant Christopher J. Cassar, who was listed as the Pogue defendants' attorney, and that the Harleysville defendants issued a settlement check to the Cassar defendants and the Pogue defendants. At the time of the settlement, the plaintiff was suspended from the practice of law. Subsequently, he was disbarred from the practice of law.

Contrary to the plaintiff's contention, the Supreme Court did not err in considering the motion made by the Cassar defendants and the Pogue defendants to dismiss the complaint insofar as asserted against them (see CPLR 2001 ; see also Matos v. Schwartz, 104 A.D.3d 650, 960 N.Y.S.2d 209 ).

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any

122 A.D.3d 716

cognizable legal theory (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Nerey v. Greenpoint Mtge. Funding, Inc., 116 A.D.3d 1015, 985 N.Y.S.2d 252 ; Goldberg v. Rosenberg, 116 A.D.3d 919, 983 N.Y.S.2d 833 ). Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a) (7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ... dismissal should not eventuate” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ;

997 N.Y.S.2d 89

see Xia–Ping Wang v. Diamond Hill Realty, LLC, 116 A.D.3d 767, 984 N.Y.S.2d 76 ). Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Korsinsky v. Rose, 120 A.D.3d 1307, 993 N.Y.S.2d 92 ; Deutsche Bank Natl. Trust Co. v. Sinclair, 68 A.D.3d 914, 891 N.Y.S.2d 445 ).

Here, the complaint alleged that the Pogue defendants were liable to the plaintiff for libel and slander and for attorney's fees. The Supreme Court properly found that...