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Kleinser v. Astarita

Supreme Court of the State of New York, New York County
Jun 28, 2010
2010 N.Y. Slip Op. 31675 (N.Y. Sup. Ct. 2010)



June 28, 2010.


Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):

Papers Numbered

Defs' n/m (3212) w/BJ affirm, MA, BG, MHK, CB, RP, LN, MF affids exhs .................................................. 1 Pltff's opp w/DK affid exhs .................................. 2 Defs' reply w/BJ affirm, exhs ................................ 3 Pltff's 3/16/10 correspondence ............................... 4 Defs' 3/19/10 correspondence.................................. 5 Trans 3/11/10................................................. 6 Upon the foregoing papers, the decision and order of the court is as follows:

This is an action based on claims of legal malpractice. Defendants are attorneys and a law firm. Issue was joined by the moving defendants who now seek summary judgment in their favor dismissing all claims against them. Defendants also seek the dismissal of this action on the basis that it is time barred (CPLR 3211 [a] [5]).

Since this motion was timely brought after the note of issue was filed, it will be decided on the merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648).

The court's decision and order is as follows:

Arguments Presented

Plaintiff is a trader and a former employee of non-party Rockrimmon Securities. In 1996, after he was fired by Rockrimmon Securities, he retained defendant Gusrae Kaplan Bruno ("GKB") to commence a lawsuit against Rockrimmon Securities and Andy Smukler (Kleinser v. Rockrimmon Securities and Andy Smukler, Index No. 606139/96) ("Rockrimmon action"). The claims in the Rockrimmon action were that Rockrimmon Securities breached its fiduciary duty to him, defrauded him, and owed him a full accounting of certain profits he claimed to have earned by making investments in "Best Buy" for one of Rockrimmon's accounts ("47BH"). According to plaintiff, he was a partner in 47BH, or the beneficiary of a constructive trust and that his share of profits was worth more than six figures.

Following protracted motion practice in that action, the case was tried before Hon. Charles E. Ramos. Although plaintiff prevailed in that action, obtaining a money judgment of approximately $67,500, plaintiff contends he actually "lost" that case due to the negligence of GKB and the attorneys who worked at the firm.

According to plaintiff, the defendants should have filed an amended complaint sooner than they did, although it was not beyond the statute of limitations, the defendants did not present arguments well when called upon to orally argue those motions, and that the attorneys did not keep him properly informed of what was going on in the Rockrimmon case.

In that action, Rockrimmon Securities and Smukler moved for summary judgment. Judge Ramos partially granted their motion, dismissing all claims against Smukler, but only allowing one claim (for an accounting) to proceed. Judge Ramos rejected plaintiff's claim that he was a partner in the 47BH account. GBK moved to reargue that decision and on reargument prevailed in having Judge Ramos restore one of the claims against Smukler (breach of fiduciary duty.) Smukler then moved to reargue the decision to reinstate that claim against him and on reargument, Judge Ramos dismissed the fiduciary duty claim once again. Thus, the only claim that remained for trial was the accounting claim. Although defendants had filed a jury demand, a bench trial was held before Judge Ramos since the claim was for equitable relief and plaintiff obtained the $67,500+ judgment.

Plaintiff contends the Rockrimmon trial should have been heard before a jury — not a bench trial — and had the defendants not made all the mistakes they did, he would have prevailed in proving he was a partner in 47BH entitling him to far greater profits — a million dollars — than what he was awarded as a mere employee or independent contractor. Specifically, plaintiff refers to language in a document wherein the general partner of Rockrimmon Securities indicated that plaintiff had a "1/3 interest in the (47BH) Convertible Account . . ." According to plaintiff, this specific language was not highlighted in oral arguments before Judge Ramos, but should have been, which is why the judge did not "see" it and he (plaintiff) lost the Rockrimmon case.

In support the dismissal branch of their motion, defendants argue this case is time barred because it was brought more than three years after the allegedly negligent acts occurred and the doctrine of continuous representation does not apply to extend the statute of limitations (CPLR 3211 [a]).

Defendants had the judgment in the Rockrimmon case entered on September 29, 2003 and sent plaintiff a letter notifying him that they had completed their assignment, which was to bring the Rockrimmon case to its conclusion, and that they would no longer be representing him in any further matter, including any appeals. They notified him he should get new counsel if he wanted to file an appeal. Plaintiff wrote back, and in his letter dated October 27, 2003 acknowledged they no longer represented him, but stating that:

"I understand that you will not continue with my case, despite our earlier agreement that was affirmed. Again, I do not believe you "have completed our assignment." I will start on a Pro Se basis where you stop. I will arrange to have the items related to my case picked up from your office shortly thereafter. As requested in my October 17, 2003 letter, immediately serve the Notice of entry and please immediately call defendants' counsel and request payment."

Thus, according to defendants, in order for this case to have been timely commenced, the summons and complaint would have had to have been filed no later than three years after October 27, 2003. Plaintiff, however, filed the summons and complaint on November 9, 2006. Furthermore, the amended complaint which this court allowed plaintiff to serve, adding new named defendants, is also time barred because it cannot be saved by the relation back doctrine since the original complaint was untimely.

In response, plaintiff argues he did not recover his files from defendants until well into December 2003 and, therefore, not only is the original complaint timely, the amended complaint is timely as well.

On the merits, defendants point out that plaintiff appealed Judge Ramos' decisions on the summary judgment motions, his rulings during the trial and his decision after trial. The grounds for the appeals were that Judge Ramos: 1) had excluded evidence from trial, 2) misconstrued the evidence by deciding plaintiff was not a partner in 47BH, 3) erroneously found that plaintiff was an independent contractor, employed "at will," and 4) should not have held a bench trial but allowed plaintiff's case to be heard by a jury, as demanded. All of Judge Ramos' rulings were upheld on appeal:

"We perceive no basis for reversing any of the court's intermediate orders, referred to in the judgment, that granted partial summary judgment dismissing the first, second and fourth causes of action in the original complaint, which had asserted breach of contract, fraud and breach of fiduciary duty, and dismissing all claims against defendant Smukler; that adhered to this ruling on reargument; and that denied leave to file an amended complaint to substantiate further the claim that a joint venture or partnership had existed between plaintiff and defendants concerning a particular trading account at Rockrimmon Securities. The court properly found that no partner relationship existed, and in any event, plaintiff's claims were based on Smukler's alleged failure to fulfill his obligations under an unenforceable oral contract. The trial court also did not commit reversible error in excluding certain evidence that it deemed irrelevant." Kleinser v. Astanta, 15 AD3d 246 [1st Dept. 2005]

Defendants argue that plaintiff has not set forth any facts supporting his claim, that the defendants departed from accepted standards of practice and that this case is little more than a misguided attempt to get a better result than he achieved on appeal.


Under CPLR 214(6), the statute of limitations for legal malpractice is three years from the date the act of malpractice is committed, whether the action is brought as a malpractice action or a breach of contract claim. In deciding whether the complaint is timely, the court accepts the facts as alleged by plaintiff and affords the complaint a liberal construction, allowing the plaintiff the benefit of every possible favorable inference (Leon v. Martinez, 84 NY2d 83, 87-88 [citation omitted]). The documentary evidence that defendants provide, however, flatly contradict plaintiff's claim, that he continued to be represented by GBK after October 27, 2003 (Sud v. Sud, 211 AD2d 423, 424 [1st Dept 1995]). Plaintiff's letter is unequivocal, requesting that the firm complete whatever work was needed for him to have the defendants in that action pay the judgment and so he could proceed with his appeal Pro se. Once the judgment was entered, GBK no longer provided the plaintiff with legal advice, although they performed certain ministerial acts. Therefore, the action accrued and the statute of limitations began to run when GBK's representation ended which was no later than October 27, 2003. This action is, therefore, time barred.

Even were the action timely, defendants have, for the reasons that follow, proved they are entitled to summary judgment in their favor.

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 N.Y.2d 1065). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557).

To establish a prima facie case of legal malpractice or negligence, the client must plead and prove facts tending to show that the law firm: 1) failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, 2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff and, 3) that "but for" the defendant's negligence, the plaintiff would have been successful in the underlying matter (Laventure v. Galeno, 307 AD2d 255 [1st Dept. 2003]; Wexler v. Shea Gould, 211 AD2d 450, 621 NYS2d 858 [1st Dept. 1995]).

Defendants have proved they aggressively pursued plaintiff's claims. They opposed the summary judgment motion brought by Rockrimmon Securities and Smukler and then moved to reargue, successfully. They also opposed the motion to reargue which struck the restored claim against Smukler. Any claim that plaintiff was deprived of a jury trial is insufficient to establish a triable issue of fact. The general rule is that there is a right to a jury for actions at law and no right for actions in equity (Mercantile General Reinsurance Co., PLC v. Colonial Assur. Co., 82 N.Y.2d 248).

It is unrefuted that GBK brought a timely motion for permission to serve an amended complaint, yet plaintiff claims the firm waited too long and should have moved sooner. Plaintiff's disagreement with the timing of the motion to amend does not support a claim for malpractice (Holschauer v. Fisher, 5 A.D.3d 553 [2nd Dept 2004]).

Further arguments that GBK was not forceful enough in convincing Judge Ramos that plaintiff was a partner in 47BH, not just a Rockrimmon employee, seek to rehash issues that have already decided against him and upheld on appeal. Those decisions cannot be collaterally attacked here. The document that plaintiff relies on referring to his "1/3 interest.." did not convince Judge Ramos that plaintiff was, as he insists, a partner, not just an independent contractor or at will employee. Plaintiff cannot show that a different result would have ensued.

Plaintiff's cause of action for punitive damages fails because the underlying claim fails. Even if the underlying claim settled, punitive damages would fail because it is not supported by the facts. To properly plead a claim for punitive damages, also known as exemplary damages," the plaintiff must present facts tending to show the defendant (s) acted with such a high degree of bad faith, and their wrongful act was so wonton, reckless, or malicious, that their actions are intentional, deliberate and therefore reprehensible to society as a whole ( See: Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 200; Rivera v. City of New York, 40 A.D.3d 334, 344 [1st Dep't 2007]; Freeman v. The Port Authority of New York and New Jersey, 243 A.D.2d 409, 410 [1st Dep't 1997]; Aero Garage Corp. v. Hirschfeld, 185 A.D.2d 775 [1st Dep't 1992]). Thus, the actions alleged must rise almost to the level of a crime (Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283 [1st Dept 1996]). Here, the claim is, at best, for ordinary professional negligence. Defendants have proved that there is no factual basis for plaintiff's punitive damages claims.

Other causes of action asserted by the plaintiff include a claim under the partnership law §§ 68 and 69 and for the permanent disruption of his "professional activities." Neither claim has any basis in fact and, in any event, the partnership statutes afford plaintiff no protection because his claims against defendants are for legal malpractice. The partnership statutes cited pertain to the procedures that have to be followed when winding up the affairs of a partnership. Assuming he is referring to his claim that he was a partner of the 47BH account, not just an employee, that issue has been decided against him and affirmed on appeal.

Defendants have met their burden of showing this case is time barred. However, even if it is not time barred, the defendants have met their burden of showing they are entitled to summary judgment. Plaintiff has failed to come forward with triable issues of act that the defendants: 1) failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, 2) that such negligence was the proximate cause of the actual damages he sustained; and that 3) "but for" the defendant's negligence, the plaintiff would have been successful in the underlying matter (Laventure v. Galeno, 307 AD2d 255 [1st Dept. 2003]; Wexler v. Shea Gould, 211 AD2d 450, 621 NYS2d 858 [1st Dept. 1995]). Plaintiff was successful in the case before Judge Ramos, he just disagrees with the amount he was awarded. Since issues of law have been raised in this motion, the court has resolved them, as it should, without the need for a testimonial hearing ( See: Hindes v. Weisz, 303 A.D.2d 459 [2nd Dept 2003]). Having proved that they are entitled to summary judgment on each of plaintiff's claims, defendants' motion for summary judgment is granted and the complaint as revised/amended is hereby dismissed. granted and the complaint as revised/amended is hereby dismissed.


For the reasons stated, and in accordance with the foregoing,

It is hereby;

ORDERED that defendants have proved that this case is time barred, but even if it is not time barred, there are no triable issues of fact for trial and that they are entitled to summary judgment against plaintiff dismissing each cause of action and the complaint; and it is further

ORDERED that the clerk shall enter judgment in favor of defendants Mark Astarita, Brian Graifman, Martin Kaplan, Gusrae Kaplan Bruno, Cirino Bruno, Robert Perez, Lawrence Nusbaum and Melvyn Falls, against plaintiff Dale Kleinser dismissing the compliant and this action with costs and disbursements to the defendants Mark Astarita, Brian Graifman, Martin Kaplan, Gusrae Kaplan Bruno, Cirino Bruno, Robert Perez, Lawrence Nusbaum and Melvyn Falis, as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that any relief requested not expressly addressed is hereby denied; and it is further

ORDERED that this constitutes the decision and order of the court.

Summaries of

Kleinser v. Astarita

Supreme Court of the State of New York, New York County
Jun 28, 2010
2010 N.Y. Slip Op. 31675 (N.Y. Sup. Ct. 2010)
Case details for

Kleinser v. Astarita

Case Details


Court:Supreme Court of the State of New York, New York County

Date published: Jun 28, 2010


2010 N.Y. Slip Op. 31675 (N.Y. Sup. Ct. 2010)