Opinion
Index No. 159106/2022 Motion Seq. No. 001
07-05-2023
STEPHANIE TREANOR, Plaintiff, v. CONSTANTINE GUS DIMOPOULOS, DIMOPOULOS BRUGGEMANN PC Defendant.
Unpublished Opinion
MOTION DATE 01/19/2023
PRESENT: HON. MARY V. ROSADO JUSTICE
DECISION + ORDER ON MOTION
Mary V. Rosado, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 were read on this motion to/for _DISMISSAL.
Upon the foregoing documents, and after oral argument, which took place on April 18, 2023, where Jonathan Davidoff, Esq. appeared on behalf of Plaintiff Stephanie Treanor ("Plaintiff'), and Lisa Shrewsberry, Esq. appeared on behalf of Defendants Constatine Gus Dimopoulos and Dimopooulos Bruggemann PC (collectively "Defendants"), Defendants motion to dismiss pursuant to CPLR § 3211 (a)(7) is granted in part and denied in part.
I. Background
This action arises from Defendants' representation of Plaintiff during her divorce. Plaintiff commenced this action by filing a summons with notice on October 19, 2022 (NYSCEF Doc. 1). After Defendants served a demand for a complaint (NYSCEF Doc. 3), Plaintiff filed her Complaint on December 12, 2022 (NYSCEF Doc. 4).
The matrimonial action giving rise to this legal malpractice case was commenced by Plaintiff on February 2, 2018 against her now ex-husband, Adam Treanor ("Adam") in Westchester County Supreme Court (id. at ¶ 7). At the time the matrimonial action was commenced, Plaintiff and Adam had three children under the age of ten (id. at ¶ 9). The family lived together in Scarsdale (id. at ¶ 10). On June 6, 2018, Plaintiff retained an attorney, non-party Faith Miller ("Miller") (id. at ¶ 11). Shortly thereafter, on June 12, 2018, the Court appointed non-party Carol Most ("Ms. Most") in the matrimonial action to be the attorney for the children (id. at ¶ 12). On June 22, 2018, Adam filed a motion in the matrimonial action seeking (1) exclusive use and occupancy of the marital residence; (2) temporary custody of the children, and (3) appointment of a forensic examiner (id. at ¶ 13). Sometime thereafter, the matrimonial court ordered Plaintiff and Adam to undergo an evaluation with Dr. Ray Griffin (id. at ¶ 14). On June 26, 2018, the court appointed Dr. Marc Abrams ("Dr. Abrams") to be the independent forensic examiner (id. at ¶ 16).
Adam alleged that Plaintiff was an alcoholic; however, on August 6, 2018, Dr. Griffin issued a report finding that Plaintiff was not an alcoholic (id. at ¶ 19).
Plaintiff alleges that on or about June 1, 20 1 8, prior to Adam's motion being heard, Plaintiff agreed to move out of the marital residence (id. at ¶ 15). On July 9, 2018, Plaintiff alleges she cross moved seeking an order denying Adam's motion and granting Plaintiff sole temporary legal and physical custody of the children, or in the alternative granting Plaintiff exclusive use and occupancy with an access schedule for Adam and requiring Adam to pay child support (id. at ¶ 18). On August 30, 2018, after meeting with the matrimonial court's attorney Irene Ratner, an order was entered which provided that the children reside in the marital residence during the school week, with Plaintiff having access to the children from Wednesday to Friday, and alternating weekends with Plaintiff outside the marital residence (id. at ¶ 20).
This date is as written in Plaintiffs Complaint. It seems to contradict the preceding allegation that the motion was not filed until June 11, 2018. Plaintiff has not clarified this discrepancy since filing the Complaint.
Plaintiff alleges that on September 21, 2018, Adam filed a motion seeking an order directing Plaintiff to pay (1) half of the mortgage on the marital residence; (2) half of the carrying costs of the au pair; (3) the cost of her own health insurance; (4) half of the marital credit card debt; (5) a pro rata share of the children's medical expenses, and (6) repay $11,000 that she had previously withdrawn from a marital bank account (the "Pendente Lite Motion") (id. at ¶ 22). On the same date, Plaintiff allegedly retained Defendants to represent her and replace Miller as her counsel in the matrimonial action (id. at ¶ 23).
Plaintiff alleges that Defendants did not disclose to Plaintiff their "intimate relationship" with Dr. Abrams or purported allegiance to him (id. at ¶ 26). Plaintiff alleges that she met with Dr. Abrams four times and that he asked inappropriate questions about sexual acts (id. at ¶¶ 27-29). "On or about October 2018 (sic)" Dr. Abrams issued a report where he concluded that both parents had loving relationship with their children, and that access should be equal, and that the current schedule should remain in place (id. at ¶ 33). Despite this outcome, Plaintiff alleges Dr. Abrams "punished" her in the report due to Plaintiffs objection to Dr. Abrams' "sexual inquiries" by stating that Plaintiff "was not as intelligent as Adam, and that Adam provided a little more for the children's needs than Plaintiff' (id. at ¶ 34).
Plaintiff fails to allege the dates she met with Dr. Abrams, or if the meetings occurred at the time of Defendants' representation.
Plaintiff alleges that on December 20, 2018, the matrimonial court issued an order deeming her the monied spouse based on imputed income and its failure to impute income to Adam, resulting in Plaintiffs obligations to pay child support and amounts to maintain the marital residence (id. at ¶ 35).
Plaintiff concedes that there were numerous issues which Defendants needed to address when they were retained, but complains that Defendants retained experts to prepare reports to address these issues which caused Plaintiff to incur costs and fees (id. at ¶¶ 36-39). Indeed, some experts were retained to address Adam's finances, and others were retained to rebut Abrams' report (id. at ¶¶ 38-39).
On January 7, 2019, Defendants filed a notice of appeal of the December 20, 2018 order (id. at ¶ 41). Defendants allegedly told Plaintiff that order was wrongly decided and stated they would perfect the appeal (id. at ¶ 43). However, the day before the appeal was required to be perfected Defendants stated they would not perfect the appeal and that Plaintiff should pay the amounts required in the order subject to reallocation (id. at ¶ 44). The Defendants filed an order to show cause for Plaintiff in the Appellate Division (id. at ¶ 45). Plaintiff alleges that because of Defendants, she could not retain an appellate attorney to appeal the order, and as a result she was found in contempt of the court on multiple occasions (id. at ¶ 46). Plaintiff alleges that it is "but for" his refusal to perfect the appeal that Plaintiff was found in contempt (id. at ¶ 47). She also alleges that she had to pay significant fees to oppose numerous contempt motions (id. at ¶ 48).
Again, Plaintiff does not provide an exact date.
Plaintiff does not say what relief the order to show cause sought.
Plaintiff also alleges that she requested Defendants have Ms. Most removed as attorney for the children, and although Defendants allegedly acknowledged that Plaintiff's concerns were legitimate, Defendants refused to file a motion to remove Ms. Most (id. at ¶¶ 50-53). Plaintiff alleges this is because Defendants did not want to "jeopardize their relationship with Ms. Most in other actions" (id. at ¶ 54). Plaintiff alleges that but for Defendants' refusal to make a motion to remove Ms. Most, Plaintiff "would not have suffered the significant damages that resulted therefrom, including but not limited to reduced access to the children and unnecessary legal fees." (id. at ¶ 58).
Plaintiff alleges that "in or about the summer 2019 (sic)" the matrimonial court ordered Dr. Abrams to conduct an updated investigation regarding custody and access of the children (id. at ¶ 59). Plaintiff alleges she demanded that Defendants file a motion to have Dr. Abrams replaced as the forensic examiner on multiple occasions (id. at ¶¶ 60-61). Plaintiff alleges that this is because the Defendants had a "cozy relationship" with Judge Lubell, who was presiding over the divorce action, and they were concerned "about the ramifications such filings would have with respect to their standings in the eyes of Judge Lubell" (id. at ¶¶ 62-87). Plaintiff alleges this is also because Judge Lubell allegedly "had a longstanding relationship" with Dr. Abrams and Ms. Most (id. at ¶ 69). Plaintiff includes brazen allegations, including "Judge Lubell would have ex parte communications with the Defendants which was believed to be an opportunity for the Defendants to advise Judge Lubell how to rule in certain instances" (id. at ¶ 68).
Plaintiff claims on September 26,2019, she requested a meeting with Defendants to discuss the inappropriate conduct of Dr. Abrams, but on that same day Defendants informed Plaintiff that they would file a motion to withdraw as her counsel (id. at ¶¶ 80-81). Defendants filed the motion to withdraw due to Plaintiffs instance "upon taking action.. .with which [they have] a fundamental disagreement (id. at ¶ 83). Plaintiff alleges that Defendants did not inform the matrimonial court as to what the fundamental disagreement was, although the transcript reflects the reasons were disclosed in camera with Plaintiff present (id. at ¶ 84). The parties appeared before the matrimonial Court on October 16, 2019, on a motion to hold Plaintiff in contempt because this was the third time she had disobeyed Court orders (id. at ¶¶ 96-98; see also NYSCEF Doc. 16). The motion to withdraw was granted at the October 16, 2019 hearing after Defendants disclosed the disagreements in camera (id.).
Plaintiff alleges that after Defendants withdrew, she filed a motion to have Dr. Abrams removed, which was denied (id. at ¶ 108). Plaintiff filed a complaint against Dr. Abrams with the mental health professionals certification committee, and the committee, upon an investigation into Plaintiffs and others' complaints, removed Dr. Abrams as a member of the mental health professionals panel for the First and Second Departments (id. at ¶¶ 115-116).
Plaintiff also alleges that Defendants hired several experts which were duplicative and unnecessary, including Mr. Hutson, who never completed his review of Adam's finances (id. at ¶ 122).
Plaintiff alleges as a first cause of action breach of contract because Defendants did not file motions that Plaintiff requested her to file (id. at ¶¶ 129-151). She alleges as a second cause of action breach of fiduciary duty, also arising out of their refusal to file motions Plaintiff requested (id. at ¶¶ 152-161). As a third cause of action, Plaintiff alleges legal malpractice arising out of the Defendants' failure to perfect the appeal, failing to disclose to the matrimonial court Dr. Abrams' misconduct, and refusing to file motions (id. at ¶¶ 162-174).
On December 29, 2022, Defendants filed this pre-answer motion to dismiss (NYSCEF Doc. 5). Defendants first argue that the allegations sound solely in malpractice because the allegations all pertain to breaches by an attorney in connection with legal services provided to Plaintiff (NYSCEF Doc. 8). Therefore, the breach of contract and breach of fiduciary duties should be dismissed. Defendants then argue that the legal malpractice claim is time-barred because the statute of limitations accrues, based on the continuous representation doctrine, on the date the attorney-client relationship was terminated. According to Defendants, because the motion to withdraw was granted on October 16, 2019, and the statute of limitations is three years for a legal malpractice claim, this action would have had to be initiated on October 16, 2022. However, this action was not commenced until October 25, 2022, so Defendants assert it should be dismissed pursuant to the statute of limitations.
Alternatively, Defendants argue the complaint fails to state a cause of action for legal malpractice. Defendants argue that Plaintiffs Complaint is rife with conjecture and speculation, which is fatal to her ability to adequately allege the causation element of a legal malpractice claim. Defendants argue that here, Plaintiff is basically alleging she is upset with her attorneys' strategy decisions, which do not amount to negligence. Finally, Defendants argue that Plaintiff has failed to allege actual and ascertainable damages, since it was her own decision not to comply with certain orders that caused her to be held in contempt.
On January 18, 2023, Plaintiff filed opposition (NYSCEF Doc. 10). Plaintiff argues that her action is timely because it was not until November 25,2019 that Judge Lubell entered a written order granting the Defendants' motion to withdraw, and in any event, the Covid-19 pandemic related tolls of the statute of limitation apply to make this action timely. Plaintiff also argues that the breach of fiduciary duty claims are not duplicative of the malpractice claims. Plaintiff also claims that the breach of contract claim should survive because there were express and specific promises in the retainer agreement which Defendants allegedly breached. Plaintiff argues the legal malpractice cause of action was sufficiently alleged by failing to perfect an appeal, failing to file a motion to remove Dr. Abrams, and failing to provide correct advice to Plaintiff to pay child support arrears with retirement savings rather than taking a loan.
It is not lost on this Court that Plaintiff submitted in opposition an affidavit from an individual named Catherine Kassenoff whose ex-husband was represented by Defendants in this action in her own divorce action (NYSCEF Doc. 16). She claims that Defendants "sought to take custody of my children... away from me." (id. at¶ 15). She also states that Defendants discussed a report with Dr. Abrams in a family court case where Plaintiffs counsel, Jonathan Davidoff, was himself a Defendant (id. at ¶ 17). As such, the Court is mindful that given the highly sensitive and emotional nature of family court cases, which both Plaintiff and Mr. Davidoff were involved in, they may be unhappy with outcomes in their respective cases. Nonetheless, the Court does not take lightly the allegations drafted by Plaintiff and Mr. Davidoff essentially alleging a conspiracy in Westchester Family Court and casting doubt on the propriety of Justice Lubell's character and fitness to sit on the bench.
Defendants filed their reply on January 24, 2023 (NYSCEF Doc. 24). Defendants withdrew their statute of limitations argument. Defendants reiterate that Plaintiff s allegations are rife with suspicion and conjecture, and an attorney is not required to simply follow client directives which they believe are unsupportable and detrimental to the client's position. Defendants argue that the refusal to file a motion to remove Dr. Abrams cannot be a basis for malpractice when Plaintiff ultimately filed her own motion based on evidence she provided to Defendants and that motion was ultimately denied. Defendants reiterate that a disagreement based on strategy cannot serve as a basis for a legal malpractice claim, and that her vague damages are only connected to Defendants through suspicion and conjecture.
II. Discussion A. Standard
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determine only whether the alleged facts fit within any cognizable legal theory (Sassi v Mobile Life Support Services, Inc., 37 N.Y.3d 236, 239 [2021]). All factual allegations must be accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 A.D.3d 172, 174 [1st Dept 2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]; Barnes v Hodge, 118 A.D.3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim will be granted if the factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 [2017]).
B. Breach of Contract and Breach of Fiduciary Duty Claims
The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 A.D.3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report, and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim (id. at 873). Moreover, there are no allegations related to breaching a promise to acehive a specific result, but only allegations about breaches of vague and non-specific (and somewhat boilerplate) provisions of the retainer agreement (see Mamoon v Dot Net Inc., 135 A.D.3d 656 [1st Dept 2016] citing Sage Realty Corp, v Proskauer Rose, 251 A.D.2d 35, 39 [1st Dept 1998] [dismissing breach of contract claim as duplicative of legal malpractice claim where there were no allegations about a breach of a promise to achieve a specific result]; see also Alphas v Smith, 147 A.D.3d 557 [1st Dept 2017]). Thus, the breach of contract cause of action is dismissed.
Likewise, where a breach of fiduciary duty claim arises from the same set of facts and transactions, and seeks the same damages as a legal malpractice claim, the breach of fiduciary duty claim will be dismissed as duplicative (Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 [2d Dept 2019]; Boye v Rubin & Bailin, LLP, 152 A.D.3d 1, 10 [1st Dept 2017]; Ulmann-Schneider v Lacher &Lovell-Taylor, P.C., 121 A.D.3d 415 [1st Dept 2014]). Indeed, the allegations of malpractice are premised on Defendants' alleged failure to carry out certain acts due to their "loyalty" to other actors, which is the same exact set of allegations which give rise to the breach of fiduciary duty claims. Therefore, the breach of fiduciary duty claim is dismissed as duplicative.
C. Legal Malpractice
The motion to dismiss the legal malpractice claim is granted in part and denied in part. To sufficiently allege legal malpractice, the complaint must set forth (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss; and (3) actual damages (Mamoon v Dot Net Inc., 135 A.D.3d 656, 658 [1st Dept 2016] citing Leder v Spiegel, 31 A.D.3d 266, 267-268 [1st Dept 2006], affd. 9 N.Y.3d 836 [2007], cert, denied 552 U.S. 1257 [2008]). To allege proximate cause, "the plaintiff must show that 'but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue or would not have sustained any ascertainable damages." (Leder, supra.). Allegations which are "couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs' claim" are insufficient to state a claim for legal malpractice (Heritage Partners LLC v Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 429 [1st Dept 2015]). Failure to establish proximate cause mandates dismissal of a legal malpractice action (RTW Retailwinds, Inc. v Colucci & Umans, 213 A.D.3d 509, 510 [1st Dept 2023] citing Reibman v Senie, 302 A.D.2d 290, 290-291 [1st Dept 2003]).
Further, dissatisfaction with attorneys' reasonable strategic decisions cannot form the basis of a cause of action for legal malpractice (RTW Retailwinds, Inc., supra citing Wagner Davis P.C. v Gargano, 116 A.D.3d 426, 426 [1st Dept 2014]; see also Genet v Buzin, 159 A.D.3d 540 [1st Dept 2018]). Where a client's own actions cause her own damages, rather than any acts or omissions by her attorney, the legal malpractice claim must fail as a matter of law (Knox v Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d 70, 75 [1st Dept 2018]).
Defendants' refusal to file motions to remove Ms. Most and Dr. Abrams cannot serve as a basis for a legal malpractice claim (see Hand v Silberman, 15 A.D.3d 167, 168 [1st Dept 2005] [motion to dismiss granted on malpractice claim premised on dissatisfaction with attorneys' reasonable strategy]). Plaintiff also fails to allege proximate cause to these alleged acts of malpractice, since she concedes that her own motion to have Dr. Abrams removed ended up being denied by Judge Lubell (see NYSCEF Doc. 4 at ¶ 108). Plaintiff also provides no basis for arguing that her damages could have been avoided "but for" Defendants' refusal to file a motion to remove Ms. Most as attorney for the children. That Ms. Most was successfully removed in just one other action provides no basis as to Plaintiffs allegations that it was unreasonable for Defendants to refuse to file a motion to remove Ms. Most in this action. These allegations amount to mere dissatisfaction with her attorneys' reasonable strategic decisions (RTW Retailwinds, Inc. v Colucci & Umans, 213 A.D.3d 509, 510 [1st Dept 2023]). The same applies to the allegations that Defendants committed malpractice by hiring experts to help prosecute Plaintiffs case (see also Brookwood Companies, Inc. v Alston & Bird LLP, 146 A.D.3d 662, 667-668 [1st Dept 2017]). Indeed, it is gross speculation to attribute failure to file motions to remove Dr. Abrams and Ms. Most with Plaintiff as the "but for" causation in Plaintiff allegedly incurring almost $1,000,000.00 in legal fees, especially when the record reflects her own actions caused her to be held in contempt (Heritage Partners LLC v Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 429 [1st Dept 2015]; see also NYSCEF Doc. 4 at ¶ 128).
It appeared to be a highly litigious divorce proceeding, where even Judge Lubel recused himself.
Plaintiffs allegation that their refusal to perfect an appeal caused her to have to defend multiple contempt motions likewise does not withstand scrutiny on a motion to dismiss. Based on the transcript Plaintiff provided, it was her own actions and refusal to abide by Court orders on multiple occasions which caused her to be held in contempt (Knox v Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d 70, 75 [1st Dept 2018]). There is also a complete lack of any facts or allegations presented by Plaintiff which show that even if the appeal had been perfected that she would have obtained a favorable outcome (Katsoris v Bodnar & Milone, LLP, 186 A.D.3d 1504 [2d Dept 2020]; see also Maroulis v Friedman, 153 A.D.3d 1250, 1252 [2d Dept 2017] [failure to plead specific factual allegations that, but for attorneys' alleged negligence, there would have been a more favorable outcome in the underlying matrimonial action was fatal to malpractice claim on motion to dismiss]; Freund v Rosengarten, 283 A.D.2d 218, 218 [1st Dept 2001]; Weiner v Hershman & Leicher, P.C., 248 A.D.2d 193 [1st Dept 1998] [failure to refer in complaint to specific facts indicating that he would prevail on appeal showing that trial court improperly resolved issues warranted dismissal of malpractice action premised on failure to perfect appeal]).
Finally, there is no actionable malpractice from Defendants' motion seeking to withdraw as counsel due to their fundamental disagreements with Plaintiff over the strategy to move forward in the underlying matrimonial action. Indeed, the Rules of Professional conduct explicitly states that a lawyer may withdraw from representing a client if the client "insists upon taking action with which the lawyer has a fundamental disagreement" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][4]) or if the client "renders the representation unreasonably difficult for the lawyer to carry out employment effectively" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][7]).
However, Plaintiffs allegation that the Defendants "provided improper advice as to the payment of certain amounts required under the pendente lite order, which caused Ms. Treanor to incur substantial tax liability" survives (see NYSCEF Doc. 4 at ¶ 124). Accepting the factual allegations as true, as this Court must on a pre-answer motion to dismiss, failure to advise a client on the tax consequences of withdrawing money from retirement accounts in a divorce action states a claim for legal malpractice for purposes of a pre-answer motion to dismiss (Fielding v Kupferman, 65 A.D.3d 437 [1st Dept 2009]).
Although in her memorandum of law in opposition Plaintiff seeks leave to amend her Complaint, if any portion of it is dismissed, this relief is denied, as Plaintiff has failed to seek this relief via cross-motion in compliance with CPLR § 2215 (see Abizadeh v Abizadeh, 159 A.D.3d 856 [2d Dept 2018] [trial court not required to comb through papers to find information that was requirement to be set forth in the notice of motion]).
Accordingly, it is hereby,
ORDERED that Defendants' motion to dismiss is granted in part and denied in part, and the Complaint is dismissed in its entirety, except for the third cause of action which alleges malpractice arising from Defendants' faulty advice regarding Plaintiff's tax liability in withdrawing from her retirement account; and it is further
ORDERED that Defendant is directed to serve an answer to the Complaint within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Room 442, 60 Centre Street, New York, New York, on August 16, 2023, at 9:30 a.m. If the parties agree to a proposed preliminary conference order prior to the date of the conference, the parties are directed to submit it via e-mail to SFC-Part33-Clerk@,nycourts.gov which may obviate the need to appear; and it is further
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this Decision and Order, with notice of entry, on Plaintiff; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.