| Breytman v Schechter |
| 2012 NY Slip Op 08475 [101 AD3d 783] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Alexander Breytman, Appellant, v Roberta S. Schechter, asExecutor of Donald Schechter, Deceased, et al., Respondents, et al.,Defendant. |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan and Jennifer B.Ettenger of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals (1), aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Schack, J.),dated February 8, 2011, as granted the motion of the defendants Roberta S. Schechter, asexecutor of the estate of Donald Schechter, and Donald Schechter, P.C., for summary judgmentdismissing the complaint insofar as asserted against them, and to enjoin him from commencingany further actions against the defendants Roberta S. Schechter, as executor of the estate ofDonald Schechter, and Donald Schechter, P.C., without approval of the "appropriateAdministrative Justice or Judge," (2) from a judgment of the same court dated April 28, 2011,entered upon the order dated February 8, 2011, (3), as limited by his brief, from so much of anorder of the same court dated June 14, 2011, as denied those branches of his motion which werefor leave to reargue his opposition to the motion of the defendants Roberta S. Schechter, asexecutor of the estate of Donald Schechter, and Donald Schechter, P.C., among other things, forsummary judgment dismissing the complaint insofar as asserted against them, and for recusal,and (4) from an order of the same court dated July 22, 2011, which, after a hearing, directed theplaintiff to pay sanctions in the sums of $1,700 to the defendants Roberta S. Schechter, asexecutor of the estate of Donald Schechter, and Donald Schechter, P.C., and $2,500 to theLawyers' Fund for Client Protection pursuant to 22 NYCRR 130-1.1.
Ordered that the appeal from the order dated February 8, 2011, is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the appeal from so much of the order dated June 14, 2011, as denied that branchof the plaintiff's motion which was for leave to reargue his opposition to the motion of thedefendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald[*2]Schechter, P.C., inter alia, for summary judgment dismissingthe complaint insofar as asserted against them is dismissed, as no appeal lies from an orderdenying reargument; and it is further,
Ordered that the order dated June 14, 2011, is affirmed insofar as reviewed; and it is further,
Ordered that the order dated July 22, 2011, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants Roberta S. Schechter, as executorof the estate of Donald Schechter, and Donald Schechter, P.C.
The appeal from the intermediate order dated February 8, 2011, must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order datedFebruary 8, 2011, are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession and that the attorney's breach of this duty proximately caused theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]). Here, the defendants Roberta S. Schechter, as executor of the estate ofDonald Schechter, and Donald Schechter, P.C. (hereinafter together the Schechter defendants),satisfied their prima facie burden of establishing their entitlement to judgment as a matter of lawdismissing the causes of action alleging legal malpractice. In opposition thereto, the plaintifffailed to raise a triable issue of fact (see Natale v Samel & Assoc., 308 AD2d 568, 569[2003]; Schadoff v Russ, 278 AD2d 222, 223 [2000]).
As for the remaining causes of action, the Schechter defendants also made a prima facieshowing of entitlement to judgment in their favor, in response to which the plaintiff failed toraise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
The plaintiff failed to set forth any proof of the Supreme Court's bias or prejudice whichwould support recusal (see Walter vWalter, 62 AD3d 787, 788 [2009]).
The Supreme Court properly imposed a sanction upon the plaintiff for his frivolous conductin connection with his motion, inter alia, for leave to reargue his opposition to the Schechterdefendants' motion, among other things, for summary judgment dismissing the complaint insofaras asserted against them, as the plaintiff's motion was completely without merit in law and wasundertaken primarily to harass Roberta S. Schechter (see 22 NYCRR 130-1.1).
Finally, while public policy mandates free access to the courts, "when a litigant is 'abusingthe judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin suchvexatious litigation' " (Matter ofSimpson v Ptaszynska, 41 AD3d 607, 608 [2007], quoting Matter of Shreve vShreve, 229 AD2d 1005, 1006 [1996] [internal quotation marks omitted]). Here, theSupreme Court properly directed the plaintiff to seek leave of the "appropriate AdministrativeJustice or Judge" before filing any additional actions against the Schechter defendants (seeMatter of Simpson v Ptaszynska, 41 AD3d at 608; Matter of Pignataro v Davis, 8 AD3d 487, 489 [2004]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Chambers, Hall andLott, JJ., concur. [Prior Case History: 30 Misc 3d 1219(A), 2011 NY Slip Op50125(U).]