Tulino v. Hiller, P.C.

• Decision Date: 23 February 2022
• Docket Number: 2018–11872,Index No. 502725/16
• Citation: 202 A.D.3d 1132,164 N.Y.S.3d 157
• Parties: Eva TULINO, et al., appellants, v. HILLER, P.C., etc., respondents.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1132
164 N.Y.S.3d 157

Eva TULINO, et al., appellants,
v.
HILLER, P.C., etc., respondents.

2018–11872
Index No. 502725/16

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

Submitted—December 3, 2021
February 23, 2022

164 N.Y.S.3d 159

Andrew Lavoot Bluestone, New York, NY, for appellants.

Hiller, P.C., New York, NY (Michael Hiller of counsel), respondent pro se, and Furman, Kornfeld & Brennan, LLP, New York, NY (A. Michael Furman and Rachel Aghassi of counsel), for respondents Weiss & Hiller, P.C., Arnold Weiss, and Michael Hiller (one brief filed).

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

202 A.D.3d 1132

In an action, inter alia, to recover damages for legal malpractice,

202 A.D.3d 1133

breach of contract, and violation of Judiciary Law § 487, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated September 12, 2018. The order, insofar as appealed from, granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and violation of Judiciary Law § 487, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendants Arnold Weiss and Michael Hiller.

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging legal malpractice, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487, and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendants Arnold Weiss and Michael Hiller, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

Antonio Tulino (hereinafter Antonio) and Michele Tulino (hereinafter Michele) were brothers who each owned 50% of the stock of Tulino Realty, Inc. (hereinafter Tulino Realty). In 2008, Antonio entered into an agreement to sell his interest in Tulino Realty, but Michele, the president of Tulino Realty, refused to consent to the sale. In 2009, Antonio, individually and on behalf of Tulino Realty, commenced an action against Michele, inter alia, to recover damages for breach of fiduciary duty (hereinafter the underlying action). In 2010, Michele retained the law firm of

164 N.Y.S.3d 160

Weiss and Hiller, P.C. (hereinafter W & H), to represent him in the underlying action. Michele asserted counterclaims against Antonio, among other things, to recover damages for breach of fiduciary duty. Pursuant to a stipulation of discontinuance dated February 2, 2012, Antonio's causes of action asserted against Michele in an amended complaint were withdrawn, but Michele's counterclaims remained. By certification order dated November 16, 2012,

202 A.D.3d 1134

Michele was directed to file a note of issue within 90 days or the action would be deemed dismissed.

By order to show cause dated December 27, 2012, W & H moved for leave to withdraw as Michele's counsel in the underlying action on the basis of Michele's alleged failure to pay legal fees. Michele opposed W & H's motion for leave to withdraw as counsel. In an order dated March 18, 2013, the Supreme Court denied W & H's motion. Thereafter, W & H moved, inter alia, for leave to reargue its motion for leave to withdraw as counsel. In an order dated June 24, 2013, the court, among other things, granted that branch of W & H's motion which was for leave to reargue and, upon reargument, in effect, vacated the order dated March 18, 2013, and thereupon granted W & H's motion for leave to withdraw as counsel.

In November 2013, Antonio moved, inter alia, to dismiss Michele's counterclaims due to Michele's failure to timely file a note of issue. In an order dated January 16, 2014, the Supreme Court, among other things, granted that branch of Antonio's motion which was to dismiss the counterclaims.

On February 26, 2016, following Michele's death, his widow, Eva Tulino, the executor of Michele's estate, Nicoletta Tulino, and Tulino Realty commenced the instant action against, among others, W & H, and attorneys Arnold Weiss and Michael Hiller, to recover damages for legal malpractice, breach of contract, fraud, and violation of Judiciary Law § 487. The plaintiffs alleged, inter alia, that Michele's meritorious counterclaims against Antonio in the underlying action...