| Seldon v Spinnell |
| 2012 NY Slip Op 04219 [95 AD3d 779] |
| May 31, 2012 |
| Appellate Division, First Department |
| Philip Seldon, Appellant, v Andrew Spinnell,Respondent. |
—[*1] Andrew J. Spinnell, New York, respondent pro se.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or aboutSeptember 28, 2010, which, to the extent appealed from as limited by the briefs, granteddefendant's motion for summary judgment dismissing the amended complaint, unanimouslyaffirmed, with costs.
Plaintiff is correct that the court should not have dismissed the first through eighth, tenth, andeleventh causes of action based on res judicata and collateral estoppel. However, we affirm onother grounds raised by defendant below (see Matter of American Dental Coop. vAttorney-General of State of N.Y., 127 AD2d 274, 279 n 3 [1987]).
All of the plaintiff's Judiciary Law § 487 claims (the first through tenth causes ofaction) should have been dismissed because defendant was a party in the cases on which thosecauses of action are based (see Haber v Kisner, 255 AD2d 223 [1998]; Northern TrustBank of Florida/Sarasota N.A. v Coleman, 632 F Supp 648, 650 [SD NY 1986]). Plaintiff'sremedy lay exclusively in the previous lawsuits (see Yalkowsky v Century Apts. Assoc.,215 AD2d 214, 215 [1995]). Amalfitanov Rosenberg (12 NY3d 8 [2009]), on which plaintiff relies, does not overrule any of theabove cases. Indeed, the defendant in Amalfitano, was acting in his capacity as anattorney representing a client when he commenced the lawsuit at issue (id. at 11). Thus,there is nothing in Amalfitano to suggest that it expanded Judiciary Law § 487 toapply to attorneys who are merely parties to an action rather than only to attorneys acting in theircapacity as attorneys (see Barrows vAlexander, 78 AD3d 1693 [2010]).
Even though the eleventh cause of action does not explicitly reference Judiciary Law §487, most of that cause of action is based on defendant's allegedly false statements in otherlawsuits in which defendant was a party. The only paragraph of the eleventh cause of action thatis not based on such statements fails to state a cause of action, as it does not indicate howplaintiff was damaged by defendant's alleged intimidation of a third party.
Defendant did not cross appeal from the motion court's sub silentio denial of thebranch [*2]of his motion which sought sanctions against plaintiff.Accordingly, we cannot award the relief he seeks (see Hecht v City of New York, 60NY2d 57 [1983]). Concur—Mazzarelli, J.P., Catterson, DeGrasse and Manzanet-Daniels,JJ.