| Mizuno v Barak |
| 2014 NY Slip Op 00488 [113 AD3d 825] |
| January 29, 2014 |
| Appellate Division, Second Department |
| Nori Mizuno, Appellant, v Shari Barak et al.,Respondents. |
—[*1] Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (John A. DiCaro and Ellis M. Osterof counsel), respondent pro se and for respondent Shari Barak.
In an action to recover damages for violation of Judiciary Law § 487, fraud,and legal malpractice, the plaintiff appeals from an order of the Supreme Court, SuffolkCounty (Asher, J.), dated April 5, 2012, which granted the defendants' motion pursuantto CPLR 3211 to dismiss the complaint.
Ordered that the order is affirmed, with costs.
In 1994, a nonparty bank commenced a mortgage foreclosure action against theplaintiff. The plaintiff thereafter filed several bankruptcy petitions, which were ultimatelyunsuccessful in avoiding the foreclosure sale of the plaintiff's real property in 2002. Theplaintiff then commenced a legal malpractice action against the attorney who representedhim in the third bankruptcy proceeding. The plaintiff prevailed in that action, and wasawarded the relief he sought in the complaint, that is, recovery of the value of the lostequity in the real property as well as the legal fees he spent on his attempt to recover thevalue of the foreclosure sale (see Mizuno v Fischoff & Assoc., 82 AD3d 849 [2011]).
In August 2011, the plaintiff commenced the instant action against Shari Barak, theattorney who represented the bank in the foreclosure proceedings and who testified at thenonjury trial of the plaintiff's malpractice action, as well as the law firm in which Barakis a partner. The plaintiff alleged that the defendants violated Judiciary Law § 487and committed fraud and legal malpractice in connection with their filing of an allegedlyfalse and misleading notice of default and an affidavit of noncompliance in the thirdbankruptcy proceeding, and based upon Barak's conduct of allegedly giving falsetestimony in the plaintiff's prior legal malpractice action as to his default on mortgagepayments. The defendants moved pursuant to CPLR 3211 to dismiss the complaint, andthe Supreme Court granted the motion.
The allegations in the three causes of action that are predicated upon the defendants'conduct in the third bankruptcy proceeding are barred by the statute of limitations. Thatconduct was committed approximately 8½ years prior to the subject action, so as tobar the plaintiff's claims alleging violation of Judiciary Law § 487 (seeCPLR 214 [2]; Lefkowitz v Appelbaum, 258 AD2d 563 [1999]), fraud(see CPLR 213 [8]; Lefkowitz v Appelbaum, 258 AD2d 563 [1999]),and legal malpractice (see [*2]CPLR 214 [6]; Squitieri v Trapani, 107 AD3d688 [2013]). Contrary to the plaintiff's contention, his own allegations in thecomplaint and an order to show cause he filed in the bankruptcy proceedingdemonstrated that he either discovered, or could have with reasonable diligencediscovered, the defendants' alleged deceit more than two years prior to thecommencement of the present action (see Squitieri v Trapani, 107 AD3d at 688;Lefkowitz v Appelbaum, 258 AD2d 563 [1999]). Contrary to the plaintiff'sfurther contention, he was not entitled to a toll of the statute of limitations based upon thedoctrine of equitable estoppel (see Chi Kee Pang v Synlyco, Ltd., 89 AD3d 976, 978[2011]).
The plaintiff failed to state a cause of action to recover damages for violation ofJudiciary Law § 487, fraud, or legal malpractice grounded upon Barak's allegedfalse testimony in the plaintiff's prior legal malpractice action. Accepting as true the factsalleged in the complaint and according the plaintiff the benefit of every favorableinference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), he failed to "pleadallegations from which damages attributable to the [defendants' conduct] might bereasonably inferred" (Rock CitySound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168, 1171 [2010]; see Markel Ins. Co. v AmericanGuar. & Liab. Ins. Co., 111 AD3d 678 [2013]; Regina v Marotta, 67 AD3d766 [2009]). In the prior legal malpractice action, the plaintiff obtained the relief hesought despite the alleged false testimony. Further, the litigation costs associated withthat action, which were necessitated by malpractice on the part of the plaintiff's formerattorney in the third bankruptcy proceeding, cannot reasonably be attributed to anyalleged false trial testimony given by Barak.
Accordingly, the defendants' motion to dismiss the complaint was properly granted.Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ., concur. [Prior Case History: 2012NY Slip Op 30993(U).]