| Betz v Blatt |
| 2014 NY Slip Op 02554 [116 AD3d 813] |
| April 16, 2014 |
| Appellate Division, Second Department |
| Debra Betz, Administratrix of the Estate of CarmeloCarbone, Also Known as Mel Carbone, Deceased,Appellant-Respondent, v Arnold W. Blatt et al., Respondents, and George A.Sirignano, Jr., et al., Respondents-Appellants. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Mark K. Anesh ofcounsel), for respondents-appellants. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J.Lawless of counsel), for respondent Anthony J. Pieragostini.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals,as limited by her brief, from so much of an order of the Supreme Court, WestchesterCounty (Smith, J.), dated August 1, 2012, as granted those branches of the motion of thedefendant Arnold W. Blatt which were, in effect, pursuant to CPLR 3211 (a) to dismissthe second through fifth causes of action, granted those branches of the motion of thedefendant Anthony J. Pieragostini which were pursuant to CPLR 3211 (a) to dismiss theseventh through tenth causes of action, and granted those branches of the motion of thedefendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, which werepursuant to CPLR 3211 (a) to dismiss the twelfth through fifteenth causes of action, andthe defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP,cross-appeal from so much of the same order as denied that branch of their motion whichwas pursuant to CPLR 3211 (a) to dismiss the eleventh cause of action.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the motion of the defendants George A. Sirignano, Jr., and Enea,Scanlan & Sirignano, LLP, which was pursuant to CPLR 3211 (a) to dismiss theeleventh cause of action, and substituting therefor a provision granting that branch of themotion, and (2) by deleting the provision thereof granting that branch of the motion ofthe defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, whichwas pursuant to CPLR 3211 (a) to dismiss the fourteenth cause of action, andsubstituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, with one bill of costs to the defendantAnthony J. Pieragostini, payable by the plaintiff.
This action, inter alia, to recover damages for legal malpractice, challenges the workperformed by attorneys and law firms who represented an executor of a decedent's estate,who was removed for cause. In his will, the decedent left the bulk of his estate to hisdaughters, the plaintiff [*2]and Christina Carbone-Lopez.The decedent also named his brother, Michaelangelo Carbone (hereinafter Carbone), asexecutor. After contested probate proceedings, including a contested accounting,Carbone's letters testamentary were suspended and he was surcharged in excess of$1,025,000 for his looting and mismanagement of the estate. On prior appeals fromorders of the Surrogate's Court, this Court upheld those sanctions (see Matter of Carbone, 101AD3d 866 [2012]). The plaintiff was substituted as executor.
In her capacity as executor, the plaintiff commenced this action alleging, inter alia,legal malpractice by the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano,LLP (hereinafter together the Sirignano defendants), Arnold W. Blatt, and Anthony J.Pieragostini. Each of the defendants represented Carbone in the contested probateproceedings.
Pieragostini and the Sirignano defendants separately moved, pursuant to CPLR 3211(a), to dismiss the causes of action asserted against them. Blatt moved for summaryjudgment dismissing the causes of action asserted against him, but the Supreme Courtdeemed his motion a motion pursuant to CPLR 3211 (a). In the order appealed from, thecourt denied those branches of the respective motions which were to dismiss the first,sixth, and eleventh causes of action, which alleged legal malpractice. However, the courtgranted those branches of the respective motions which were to dismiss the second,seventh, and twelfth causes of action, which alleged breach of fiduciary duty; the third,eighth, and thirteenth causes of action, which alleged fraud and breach of trust; thefourth, ninth, and fourteenth causes of action, which sought disgorgement and restitutionof attorneys' fees and expenses; and the fifth, tenth, and fifteenth causes of action, whichalleged violations of Judiciary Law § 487.
"In an action to recover damages for legal malpractice, a plaintiff must demonstratethat the attorney 'failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession' and that the attorney's breachof this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman,99 NY2d 295, 301 [2002]; seeMarkel Ins. Co. v American Guar. & Liab. Ins. Co., 111 AD3d 678, 680 [2013];Barnave v Davis, 108AD3d 582 [2013]). " '[A]bsent fraud, collusion, malicious acts or other specialcircumstances, an attorney is not liable to third parties, not in privity, for harm caused byprofessional negligence' " (Conti v Polizzotto, 243 AD2d 672, 672 [1997],quoting Estate of Spivey v Pulley, 138 AD2d 563, 564 [1988]; see Keness v Feldman, Kramer &Monaco, P.C., 105 AD3d 812, 813 [2013]; Jacobs v Kay, 50 AD3d 526, 526-527 [2008]; Chinello v Nixon, Hargrave,Devans & Doyle, LLP, 15 AD3d 894, 895 [2005]).
Contrary to the Supreme Court's factual finding, the Sirignano defendants' retaineragreement with Carbone does not contain the phrase "administration of the estate." Boththe retainer agreement and the facts as pleaded in the complaint indicate that theSirignano defendants were retained solely to defend Carbone in the contested accountingproceeding and related matters, and were not retained to administrate the estate.Therefore, the Supreme Court erred in finding that the Sirignano defendants"under[took] a duty of undivided loyalty to the Estate and its beneficiaries." Since thedocumentary evidence demonstrates that the Sirignano defendants were not in privitywith the estate, and because the plaintiff failed to plead specific facts tending to showthat the Sirignano defendants engaged in fraud or colluded with Carbone, the plaintiffdid not assert a viable cause of action against them on the estate's behalf to recoverdamages for legal malpractice. Accordingly, the eleventh cause of action, which allegedlegal malpractice by the Sirignano defendants, must be dismissed pursuant to CPLR 3211(a) (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813;Jacobs v Kay, 50 AD3d at 526-527; Chinello v Nixon, Hargrave, Devans &Doyle, LLP, 15 AD3d at 895; Conti v Polizzotto, 243 AD2d at 672). For thesame reasons, the twelfth cause of action, which alleged breach of fiduciary duty by theSirignano defendants, was properly dismissed.
This Court has held that "an attorney represents the administrators individually andnot the estate itself" (Matter of Hof, 102 AD2d 591, 593 [1984], citing Matterof Schrauth, 249 App Div 847, 847 [1937], and Matter of Scanlon, 2 Misc2d 65, 69 [Sur Ct, Kings County 1956]; see Matter of Della Chiesa, 23 AD2d562 [1965]). Accordingly, an attorney may recover fees from the estate only where theservices rendered benefit the estate (see Matter of Rodken, 2 AD3d 1008, 1009 [2003];Matter of Winckler, [*3]234 AD2d 307, 309[1996]; Matter of Baxter [Gaynor], 196 AD2d 186, 190 [1994]; Matter ofDella Chiesa, 23 AD2d at 562; see also Matter of Smolley, 188 AD2d 535,538 [1992]). Where a plaintiff asserts a cause of action for restitution, the " 'essentialinquiry' " is " 'whether it is against equity and good conscience to permit the defendant toretain what is sought to be recovered' " (Goel v Ramachandran, 111 AD3d 783, 791 [2013],quoting Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421[1972]; see Mandarin TradingLtd. v Wildenstein, 16 NY3d 173, 182 [2011]; Sample v Yokel, 94 AD3d1413, 1415 [2012]; Trotta vOllivier, 91 AD3d 8, 12 [2011]). In determining whether this equitable remedyis warranted, a court should " 'look to see if a benefit has been conferred on the defendantunder mistake of fact or law, if the benefit still remains with the defendant, if there hasbeen otherwise a change of position by the defendant, and whether the defendant'sconduct was tortious or fraudulent' " (Goel v Ramachandran, 111 AD3d at 791,quoting Paramount Film Distrib. Corp. v State of New York, 30 NY2d at 421; see Zamor v L&L Assoc. HoldingCorp., 85 AD3d 1154, 1156-1157 [2011]).
Here, the plaintiff alleged that the Sirignano defendants' fees for representingCarbone were paid from estate assets even though those services were not beneficial tothe estate and were, in fact, adverse to it. Thus, the plaintiff has pleaded facts sufficientto assert a cause of action for restitution (see Goel v Ramachandran, 111 AD3dat 791; see also Matter of Rodken, 2 AD3d at 1009; Matter of Winckler,234 AD2d at 309; Matter of Baxter [Gaynor], 196 AD2d at 190; Matter ofDella Chiesa, 23 AD2d 562 [1965]). Accordingly, the Supreme Court erred ingranting that branch of the Sirignano defendants' motion which was to dismiss thefourteenth cause of action, which sought disgorgement and restitution of attorneys' feesfrom them.
The Supreme Court properly dismissed the second and seventh causes of action,which alleged breach of fiduciary duty, the third, eighth, and thirteenth causes of action,which alleged fraud and breach of trust, and the fourth and ninth causes of action, whichsought disgorgement and restitution of attorneys' fees, which were all based on the samefacts as the causes of action to recover damages for legal malpractice, and did not allegedistinct causes of action (seePutnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d1118, 1120 [2011]; Weiss v Manfredi, 83 NY2d 974, 977 [1994]; Financial Servs. Veh. Trust vSaad, 72 AD3d 1019, 1021 [2010]; Mahler v Campagna, 60 AD3d 1009, 1012 [2009]).Likewise, the court properly dismissed the third, fifth, eighth, tenth, thirteenth, andfifteenth causes of action, since they were not pleaded with the requisite degree ofparticularity (see CPLR 3016 [b]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d553, 559 [2009]; Parekh vCain, 96 AD3d 812, 816-817 [2012]; Putnam County Temple & Jewish Ctr.,Inc. v Rhinebeck Sav. Bank, 87 AD3d at 1120).
In light of the foregoing, we need not reach the parties' remaining contentions.Mastro, J.P., Balkin, Miller and LaSalle, JJ., concur.