Weinberg v. Sultan
| Decision Date | 01 September 2016 |
| Parties | Sarah WEINBERG, Plaintiff–Appellant, v. Leslie SULTAN, et al., Defendants–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Amed Marzano & Sediva, PLLC, New York (Naved Amed of counsel), for appellant.
Braverman Greenspun, P.C., New York (Dennis P. Kisyk, Jr. of counsel), for Leslie Sultan, respondent.
Paduano & Weintraub, LLP, New York (Meredith Cavallaro of counsel), for Jeffrey Asher and Robinson Brog Leinwand Greene Genovese & Gluck, P.C., respondents.
Gordon Rees Scully Mansukhani, LLP, New York (Ryan J. Sestack of counsel), for David A. Kaminsky & Associates, P.C. and David A. Kaminsky, respondents.
Locke Lord LLP, New York (Michael E. Camporeale of counsel), for Linda Salamon and 22 West 30th St. Properties, LLC, respondents.
MAZZARELLI, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, KAHN, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about February 23, 2015, which, to the extent appealed from as limited by the briefs, upon defendants' motions to dismiss, dismissed plaintiff's third, fourth, fifth, and sixth causes of action in the amended complaint; converted the motions to dismiss the first and second causes of action in the amended complaint to motions for summary judgment, with leave to further brief the motions; and granted defendant purchaser's counsel leave to disburse $66,152 held in escrow for the purchaser, unanimously affirmed, without costs. Order, same court and Justice, entered on or about June 3, 2015, which, upon the remaining defendants' motions for summary judgment, dismissed the first and second causes of action in the amended complaint, unanimously affirmed, without costs.
The motion court correctly dismissed the third and fourth causes of action. We have some concerns over the manner in which the sale of the building owned by the elderly plaintiff was orchestrated by defendant Kaminsky, her former son-in-law. Kaminsky, an attorney, procured the purchaser and referred plaintiff to the attorneys who represented her in the transaction and assisted her at the closing. It is unclear from the record whether these attorneys ever met with plaintiff before the closing or what role defendant Asher, the self-described “estate attorney,” played; that is, what advice, if any, he provided regarding her estate. It is also unclear how the purchase price for the building was arrived at and whether the representations made to plaintiff regarding the sale proceeds were accurate. Also, Kaminsky collected a $200,000 consulting fee for his work on the transaction, paid by the buyer.
Nonetheless, the amended complaint is barebones. It fails to allege any “material misrepresentation,” which is a required element of a fraud claim (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ; Nicosia v. Board of Mgrs. of the Weber House Condominium, 77 A.D.3d 455, 456, 909 N.Y.S.2d 412 [1st Dept.2010] ). Further, plaintiff does not allege how defendant purchaser Linda Salamon and her company, defendant 22 West 30th St. Properties, LLC (together Salamon), exerted any undue influence over plaintiff (see Franklin v. Winard, 199 A.D.2d 220, 220, 606 N.Y.S.2d 162 [1st Dept.1993] ) or coerced her into a transaction that she alleges made no economic sense. The amended complaint also failed to plead the fraud and undue influence claims with sufficient particularity, as required by CPLR 3016(b) (see id. ). In addition, there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules (Kantor v. Bernstein, 225 A.D.2d 500, 501, 640 N.Y.S.2d 40 [1st Dept.1996] ; see Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 199, 753 N.Y.S.2d 482 [1st Dept.2003] ). Plaintiff failed to address her breach of contract claim in her opening appellate brief, so it can be deemed abandoned (see Bridgers v. West 82nd St. Owners Corp., 114 A.D.3d 606, 607, 981 N.Y.S.2d 78 [2014] ). In any event, plaintiff provides no indication of how the contract was breached.
Given the absence of an underlying fraud claim, the motion court correctly dismissed the fifth cause...
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...837, 839–840, 964 N.Y.S.2d 160 [2013] ). As such, the fraud cause of action should have been dismissed (see Weinberg v. Sultan, 142 A.D.3d 767, 768–769, 37 N.Y.S.3d 13 [2016] ; Maxam v. Kucharczyk, 138 A.D.3d 1268, 1269, 29 N.Y.S.3d 683 [2016] ). In light of our determination, defendants' a......
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