| Ferdico v Zweig |
| 2011 NY Slip Op 02621 [82 AD3d 1151] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Enrico Ferdico et al., Respondents, v Joel Zweig, asExecutor of Morris Zweig, Deceased, et al., Respondents, and Brian Mullen et al., Appellants.Farrell Fritz, P.C., Nonparty Respondent. |
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In an action, inter alia, for specific performance of a contract for the sale of real property, thedefendants Brian Mullen and Marybeth Mullen appeal, as limited by their brief, from so much ofan order of the Supreme Court, Queens County (Grays, J.), entered January 28, 2010, as grantedthe motion of nonparty Farrell Fritz, P.C., for leave to withdraw as their counsel of record, anddenied those branches of their cross motion which were (a) to vacate a judgment of the samecourt dated March 11, 2009, which, upon the granting of the plaintiffs' motion for summaryjudgment on the first cause of action for specific performance of the contract of sale dated July15, 2004, among other things, directed the defendant Joel Zweig, as executor of the estate ofMorris Zweig, to execute a deed conveying the subject real property to the plaintiffs inaccordance with the terms of such contract of sale, (b) for leave to renew their motion forsummary judgment dismissing the complaint insofar as asserted against them and theiropposition to the plaintiffs' motion for summary judgment on the first cause of action for specificperformance of the contract of sale dated July 15, 2004, (c) for leave to amend their answer toassert a cross claim against the defendant Joel Zweig individually, and (d) to stay all proceedingsin a proceeding entitled Estate of Morris Zweig, pending in the Surrogate's Court, NewYork County, pending a determination of the instant action.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The Supreme Court providently exercised its discretion in denying that branch of the crossmotion of the defendants Brian Mullen and Marybeth Mullen (hereinafter together the Mullens)which was to vacate a judgment dated March 11, 2009, pursuant to CPLR 5015 (a) (2). TheMullens failed to establish, inter alia, that the purportedly newly discovered evidence, a report ofan alleged handwriting expert concluding that the alleged signature of Morris Zweig on acontract of sale dated July 15, 2004, that had been attached as an exhibit to the plaintiffs'complaint was a forgery, could [*2]not have been discoveredearlier through the exercise of due diligence (see Sicurelli v Sicurelli, 73 AD3d 735[2010]; Vogelgesang v Vogelgesang, 71 AD3d 1132, 1133-1134 [2010]; Sieger vSieger, 51 AD3d 1004, 1005 [2008]; Matter of State Farm Ins. Co. v Colangelo, 44AD3d 868 [2007]). The Supreme Court also properly denied that branch of the Mullens' crossmotion which was to vacate the judgment dated March 11, 2009, pursuant to CPLR 5015 (a) (3),as they failed to establish that the judgment was procured as a result of fraud, misrepresentation,or other improper conduct (see Matter of Johnson v New York City Dept. of Educ., 73AD3d 927, 928 [2010]; Sicurelli v Sicurelli, 73 AD3d 735 [2010]; Matter ofTellez, 56 AD3d 678 [2008]).
The Supreme Court also properly denied that branch of the Mullens' cross motion which wasto renew their motion for summary judgment dismissing the complaint insofar as asserted againstthem and their opposition to the plaintiffs' motion for summary judgment on the first cause ofaction for specific performance of the contract of sale dated July 15, 2004, as they failed to setforth both "new facts not offered on the prior motion[s] that would change the priordetermination" and a "reasonable justification for the failure to present such facts on the priormotion[s]" (CPLR 2221 [e] [2], [3]; see Bank of Am., N.A., USA v Friedman, 44 AD3d696 [2007]; Yarde v New York City Tr. Auth., 4 AD3d 352, 353 [2004]; Johnson vMarquez, 2 AD3d 786, 788-789 [2003]; Riccio v Deperalta, 274 AD2d 384 [2000]).The Mullens failed to set forth a reasonable justification as to why they did not previously obtainthe report of their alleged handwriting expert in time to submit it in support of their original crossmotion or in opposition to the plaintiffs' original motion, given that the contract of sale analyzedby their alleged expert was attached as an exhibit to the complaint in the instant action.
A lawyer may withdraw from representing a client if the client, by his or her conduct, "insistsupon taking action with which the lawyer has a fundamental disagreement" (Rules ofProfessional Conduct [22 NYCRR 1200.0] rule 1.16 [c] [4]) or the client "renders therepresentation unreasonably difficult for the lawyer to carry out employment effectively" (Rulesof Professional Conduct [22 NYCRR 1200.0] rule 1.16 [c] [7]). Here, Farrell Fritz, P.C.(hereinafter the firm), established good cause to withdraw as counsel of record for the Mullens.Accordingly, the Supreme Court providently exercised its discretion in granting the firm's motion(see Dillon v Otis El. Co., 22 AD3d 1, 3-4 [2005]; McCormack v Kamalian, 10AD3d 679 [2004]; cf. Brothers v Burt, 27 NY2d 905 [1970]).
Turning to that branch of the Mullens' cross motion which was for leave to amend theiranswer to assert a cross claim against the defendant Joel Zweig, individually, to recover damagesfor fraud arising from Joel Zweig's alleged forgery of Morris Zweig's signature on the contract ofsale dated July 15, 2004, the Mullens failed to allege the essential elements of a cause of actionsounding in fraud (see CPLR 3016 [b]; see generally Lama Holding Co. v SmithBarney, 88 NY2d 413, 421 [1996]; Lanzi v Brooks, 43 NY2d 778, 780 [1977]). Thecontract of sale dated July 15, 2004, was between the plaintiffs and Morris Zweig. The Mullensallege that the plaintiffs abandoned that contract, or that the contract was a nullity because of JoelZweig's alleged forgery of Morris Zweig's signature. The Mullens also allege that they are thebona fide purchasers of the subject real property. Accordingly, the Mullens cannot assert that JoelZweig's alleged forgery on the contract of sale dated July 15, 2004, was made with the intent toinduce their reliance, or that they justifiably relied on Joel Zweig's alleged forgery, both of whichare essential elements to a fraud cause of action (see Lama Holding Co. v Smith Barney,88 NY2d at 421). Accordingly, since the proposed amendment was palpably insufficient andpatently devoid of merit, the Supreme Court properly denied this branch of the Mullens' crossmotion (see CPLR 3025 [b]; Smiley Realty of Brooklyn, LLC v Excello Film Pak,Inc., 67 AD3d 891, 892-893 [2009]; Beja v Meadowbrook Ford, 48 AD3d 495, 496[2008]; G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007], affd 10 NY3d941 [2008]).
The Mullens' remaining contentions are without merit. Covello, J.P., Belen, Hall and Cohen,JJ., concur.