Verdelis v. Landsman
| Decision Date | 09 August 2011 |
| Docket Number | Seq. No.: 001,lndex# 651767/10 |
| Court | New York Supreme Court |
| Parties | KOSTAS VERDELIS, Plaintiff, v. MICHAEL L. LANDSMAN and HOLM & O'HARA LLP, Defendants. |
Decision/Order
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this (these) motion(s):
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¦PAPERS ¦NUMBERED¦
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¦Def's N/M, MKA affirm., exhs ¦1 ¦
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¦Def's Memo in Supp. (sep. back) ¦2 ¦
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¦Pltf's Oppw/ KV affid., exhs ¦3 ¦
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¦Pltf's Opp Memo w/LC affirm, (sep. back) ¦4 ¦
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¦Def's Reply Further Supp w/ ER affirm., exhs¦5 ¦
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¦Def's Memo in Further Supp (sep. back) ¦6 ¦
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Upon the aforementioned papers the decision and order of the court is as follows: This is an action for legal malpractice, breach of contract and fraud arising from allegations brought by plaintiff, Kostas Verdelis ("Verdelis" or "Plaintiff"), against defendants, Michael L. Landsman ("Landsman") and Holm & Holm LLP ("H&H") (collectively known as "Defendants"), who are attorneys. Plaintiff claims that Defendants were retained to represent him in an uncontested divorce proceeding, Daphne Simeon v. Konstantinos Verdelis, 309811/07, (the "Underlying Action") involving his ex-wife, Daphne Simeon ("Simeon"). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (1) a defense founded on documentary evidence(CPLR § 3211 [a][1]), (2) the expiration of the statute of limitations (CPLR § 3211 [a][5]), and (3) failure to state a cause of action (CPLR § 3211 [a][7]). Plaintiff opposes the motion.
In 2004 the Plaintiff and Simeon purchased a cooperative apartment in Manhattan using the Defendants as their attorneys. When they subsequently sold the apartment, in 2006, they again used the Defendants as their attorneys. At such time, Defendant Landsman acted pursuant to a power of attorney issued by Verdelis . In 2007, Plaintiff and Simeon decided to divorce and once again approached Defendants about handling the divorce for them.
Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant's fees were $5,476 and that he was to pay ½ of the fees by paying Simeon $2,738.
Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise him to seek outside counsel before he waived his right to approximately $1,000,000 in distributable assets.
Plaintiff now claims that the decision to withhold relevant information fell squarely on the shoulders of the Defendants and that these omissions constitute the following causes of action, sounding in (1) legal malpractice, (2) breach of contract and (3) fraud. Asa result, plaintiff claims damages of $1 million in each cause of action. He also seeks $1 million in punitive damages.
In his first cause of action, for legal malpractice, plaintiff claims that the Defendants did not properly represent his interests because he was not encouraged to retain separate counsel and by failing to advise him of the financial ramifications of his Settlement Agreement with Simeon. Plaintiff's second cause of action, for breach of contract, restates the identical allegations set forth under the legal malpractice cause of action. Finally, plaintiff's third cause of action asserts a claim for fraud, in which he contends that the Defendants "failed to faithfully and properly perform their legal services on behalf of the plaintiff' and "misrepresented by virtue of their actions the implied representations of truth, fidelity and honesty required of them...."
Defendants assert that a dismissal of plaintiff's entire action is warranted for the following reasons: (a) that the documentary evidence shows that no attorney-client relationship existed between the parties; (b) plaintiff's claims are all time-barred by the applicable statute of limitations; (c) plaintiff does not set forth facts that tend to show that "but for" the Defendants acts or omissions he would have obtained a better result, or actual ascertainable damages; (d) plaintiff's breach of contract and fraud claims are duplicative of his legal malpractice claim; and (e) plaintiff's fraud cause of action is not pled with the required particularity.
Although the Plaintiff has stated the applicable legal standard for a motion for Summary Judgment under CPLR § 3212, this is a pre-answer motion to Dismiss.Summary Judgment is never available until issue have been joined (CPLR § 3211 [c]; Gifts of the Orient v. Linden Country Club, 89 A.D.2d 508 [1st Dept. 1982]).
In the context of a motion to dismiss pursuant to CPLR § 3211, the court must afford the challenged pleadings a liberal construction, take the allegations as true, and provide the pleader with the benefit of every possible inference (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; Leon v. Martinez, 84 N.Y.2d 83 [1994]; Morone v. Morone, 50 N.Y.2d 481 [1980]; Beattie v. Brown & Wood, 243 A.D.2d 395 [1st Dept. 1997]). In deciding Defendant's motion to dismiss, the court must consider whether, accepting all Verdelis' facts, that they support the claims asserted (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634 [1976]) and whether they fit within any cognizable legal theory (Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561 [2005]).
In deciding whether any claims must be dismissed, the court does not have to consider whether plaintiff has pled claims that it will eventually succeed on. Rather, the court has to broadly examine the complaint to see whether, from its four corners, "factual allegations are discerned which taken together manifest any cause of action cognizable at law." Guqqenheimer v. Ginzburq, 43 N.Y.2d 268 (1st Dept. 1977).
Applying these legal principals to the facts of this case, the court's decision is as follows:
Documentary Evidence (CPLR § 3211[a][1])
A motion brought pursuant to CPLR § 3211(a)(1) "may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.'" Held v. Kaufman, 91 N.Y.2d 425, 430-431 (1998), quoting Leon v. Martinez, 84 N.Y.2d at 88; Foster v. Kovner, 44 AD3d 23, 28 (1st Dept. 2007) ().
Where the party whose pleadings are being challenged submits affidavits and/or other evidentiary materials in opposition to the motion, they may be considered to remedy any defects in the pleading (Leon v Martinez, 84 N.Y.2d 83, 88 [1994]). To prevail on a CPLR §3211 motion to dismiss, however, the documentary evidence submitted "must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff's claim." . . Here, Defendants submitted the following documentary evidence: (A) Retainer Agreement with Simeon, dated July 25, 2007; (B) Summons and Complaint of the Underlying Action, dated August 10, 2007; (C) Certificate of Dissolution of Marriage; (D) Settlement Agreement, dated August 30, 2007; (E) Judgment of Divorce, September 26, 2007; (F) Copies of the legal invoices; (G) Copies of payments; (H) Summons with Notice of the Present Action, dated October 18, 2010; (I) Notice of Appearance and Demand for a Complaint, dated February 11, 2011; (J) Verified Complaint, dated March 4, 2011; (K) Correspondence between Landsman and Plaintiff, dated August 10, 2007; (L) Power of Attorney, dated November 20, 2006. Defendants claim, however, that the lack of a written Retainer Agreement between the parties is indicative of a lack of privity, thus there was no fiduciary duty owed to Verdelis at the time of the divorce negotiations.
The formation of an attorney-client relationship hinges upon the client's manifested intention to seek professional legal advice. Kinqge v. Corvese, 2001 WL 830669, 8/2/01NYLJ 23 (col. 1) (S.D.N.Y. Cote J.) [citations omitted]. However, a party's unilateral or unreasonable belief that there is an attorney-client relationship does not make it so. Rather, an attorney-client relationship is established where there is an explicit undertaking to perform a specific task. Wei Cheng Chang v. Pi, 288 A.D.2d 378, app den 99 N.Y.2d 501 (2002).
Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talansky v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanley v Welch, 31 A.D.3d 1127 (2006); ...
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