| Lombardi v Lombardi |
| 2015 NY Slip Op 03334 [127 AD3d 1038] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Mary Beth Lombardi, Appellant, v VittorioLombardi et al., Respondents. |
John Ray, Miller Place, N.Y. (Vesselin Mitev of counsel), for appellant.
Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten, named hereinas Dorothy Courten, pro se of counsel), for respondents.
In an action, inter alia, to set aside an agreement on the grounds of duress, coercion,undue influence, and unconscionability, and to recover damages for legal malpractice,the plaintiff appeals, as limited by her brief, from so much of an order of the SupremeCourt, Suffolk County (LaSalle, J.), dated July 1, 2013, as granted that branch of thedefendants' cross motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the defendants' cross motion which were for summaryjudgment dismissing the first, sixth, and seventh causes of action, and substitutingtherefor provisions denying those branches of the cross motion; as so modified, the orderis affirmed, without costs or disbursements.
In connection with their marriage, the plaintiff (hereinafter the wife) and thedefendant Vittorio Lombardi (hereinafter the husband), entered into an agreement(hereinafter the agreement), setting forth their rights and obligations in the event of adivorce. The parties first executed the agreement in 2003, but, at that time, theirsignatures were not acknowledged. In 2004, the parties executed a second agreement,identical or nearly identical to the first and, this time, their signatures wereacknowledged.
After the wife commenced an action for a divorce, she commenced the instant action,seeking, inter alia, to set aside the agreement on the grounds of duress, coercion, undueinfluence, and unconscionability, and to recover damages for legal malpractice againstthe defendant Dorothy Courten, who drafted the agreement on the husband's behalf. Thewife moved, inter alia, to consolidate this action with the divorce action, and thedefendants cross-moved, inter alia, for summary judgment dismissing the complaint. TheSupreme Court granted the defendants' cross motion.
Contrary to the wife's contention, the Supreme Court was not required to give notice[*2]pursuant to CPLR 3211 (c) that the defendants' crossmotion would be converted into one for summary judgment. The defendants' notice ofcross motion, served after issue was joined, expressly indicated that the motion sought todismiss the complaint or, alternatively, summary judgment dismissing the complaint.Further, the wife's opposition papers acknowledged that the defendants were seekingsummary judgment. Accordingly, the Supreme Court did not convert the motion to onefor summary judgment, and was not required to give notice.
Additionally, although the defendants failed to submit a copy of the complaint insupport of their cross motion for summary judgment, as required by CPLR 3212 (b),CPLR 2001 permits a court, at any stage of an action, to "disregard a party's mistake,omission, defect, or irregularity if a substantial right of a party is not prejudiced" (Long Is. Pine Barrens Socy., Inc. vCounty of Suffolk, 122 AD3d 688, 691 [2014]). Since the complaint wassubmitted by the wife in support of her motion, we find that the record is sufficientlycomplete, and there is no proof that a substantial right of the wife was impaired by thedefendants' failure to submit a full copy of the pleadings (see id. at 691; Daramboukas v Samlidis, 84AD3d 719, 721 [2011]).
As to the merits of the cross motion, contrary to the Supreme Court's determination,the defendants failed to meet their prima facie burden with respect to the first cause ofaction, which alleged fraudulent inducement against the husband. In response to thewife's assertions that she was induced to enter into the agreement by certainmisrepresentations made by the husband, the husband only relied upon a general mergerclause in the agreement, which was ineffective to exclude parol evidence of fraud in theinducement (see Pellerito v Russo, 176 AD2d 713 [1991]; cf. Danann RealtyCorp. v Harris, 5 NY2d 317, 320-321 [1959]; DiBuono v Abbey, LLC, 95 AD3d 1062, 1064 [2012]), andargued that, in any event, the wife was represented by counsel when she entered into theagreement. Even if the wife were represented by counsel when she entered into theagreement, this alone would not defeat the wife's fraudulent inducement cause of actionas a matter of law (seeCioffi-Petrakis v Petrakis, 103 AD3d 766 [2013]). Moreover, the husband'ssubmissions revealed the existence of triable issues of fact as to whether the wife wasrepresented by counsel when she entered into the agreement. Therefore, that branch ofthe defendants' cross motion which was for summary judgment dismissing the first causeof action should have been denied.
The Supreme Court properly granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the second cause of action, which allegedfraudulent inducement against Courten. The alleged misrepresentations that Courtenmade to the wife were merely "representation[s] of opinion or a prediction of somethingwhich is hoped or expected to occur in the future," which cannot not sustain a fraudclaim (Coccia v Liotti, 70AD3d 747, 756 [2010]).
The Supreme Court also properly awarded summary judgment to the defendantsdismissing the fifth cause of action, which alleged that the agreement was not properlyexecuted. Although the Supreme Court, in the matrimonial action, declined to determinewhether the agreement should be set aside on the basis of fraud or on equitable bases, itdid determine that the 2004 version of the agreement complied with the execution andacknowledgment provisions of Domestic Relations Law § 236 (B) (3).Since the wife had a full and fair opportunity to litigate that issue in the matrimonialaction, she is precluded by the doctrine of collateral estoppel from challenging theagreement in the instant action on the basis of failure to comply with Domestic RelationsLaw § 236 (B) (3) (see generally Parker v Blauvelt Volunteer FireCo., 93 NY2d 343, 349 [1999]).
The defendants failed to meet their prima facie burden of demonstrating theirentitlement to judgment as a matter of law dismissing the sixth and seventh causes ofaction, which were to set aside or rescind the agreement on the basis of duress, coercion,undue influence, and unconscionability. "An agreement between spouses or prospectivespouses should be closely scrutinized, and may be set aside upon a showing that it isunconscionable, or the result of fraud, or where it is shown to be manifestly unfair to onespouse because of overreaching on the part of the other spouse" (Bibeau v Sudick, 122 AD3d652, 654-655 [2014]; seeMatter of Fizzinoglia, 118 AD3d 994, 995 [2014], lv granted 24 NY3d908 [2014]).
The evidence submitted by the defendants and the pleadings demonstrated that there[*3]was a great financial disparity between the husbandand the wife, who allegedly did not work and had no assets. The wife averred that thehusband pressured her into signing the agreement, threatening that, if she did not sign,she, their son, and her child from a previous marriage would have to leave their home,and that the husband would not marry her. The wife further alleged that the husbandmade threats of violence against her.
In addition, the agreement provided that only property titled in the parties' jointnames would be "marital property," and that such property would be distributed "inaccordance with [the parties'] respective financial contributions to the acquisition ormaintenance of such joint property." As to the marital residence, the agreement providedthat the wife would become entitled to one-seventh of 50% of the equity in the home ineach of the first seven years of the parties' marriage, and, thus, would become a 50%owner if the parties remained married for seven years. The husband and the wife waivedthe right to any maintenance, the right to any counsel fees, and all rights to the other'sestate, including the right of election. Additionally, as noted above, there are triableissues of fact as to whether the wife was represented by counsel with respect to theagreement.
Since the defendants' submissions revealed the existence of triable issues of fact as towhether the agreement should be set aside (see Bibeau v Sudick, 122 AD3d 652 [2014]; Petracca v Petracca, 101 AD3d695 [2012]), the Supreme Court should have denied those branches of thedefendants' cross motion which were for summary judgment dismissing the sixth andseventh causes of action, regardless of the sufficiency of the wife's oppositionpapers.
The Supreme Court properly granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the tenth cause of action, which allegedlegal malpractice against Courten. In order to recover damages for legal malpractice, anattorney-client relationship must exist between the plaintiff and the defendant attorney(Biberaj v Acocella, 120AD3d 1285 [2014]; Moranv Hurst, 32 AD3d 909 [2006]). "To prove an attorney-client relationship, theremust be an explicit undertaking 'to perform a specific task' " (Nelson v Roth, 69 AD3d912, 913 [2010], quoting Terio v Spodek, 63 AD3d 719, 721 [2009]). "The unilateralbelief of a plaintiff alone does not confer upon him or her the status of a client"(Moran v Hurst, 32 AD3d at 911). Here, the defendants demonstrated, primafacie, that there was no attorney-client relationship between Courten and the wife. Inopposition, the wife failed to raise a triable issue of fact.
The wife's remaining contentions are without merit.
In light of the foregoing, the Supreme Court should have denied those branches ofthe defendants' cross motion which were for summary judgment dismissing the first,sixth, and seventh causes of action. Skelos, J.P., Dickerson, Chambers and Sgroi, JJ.,concur.
u>
Motion by the respondents on an appeal from an order of the Supreme Court, SuffolkCounty, dated July 1, 2013, inter alia, for the Court to take judicial notice of the parties'marriage license. Cross motion by the appellant to strike the respondents' brief on theground that it refers to matter dehors the record and to impose a sanction upon therespondents and for an award consisting of an attorney's fee and costs. By decision andorder on motion of this Court dated November 13, [*4]2013, that branch of the motion which is for the Court totake judicial notice of the parties' marriage license and the cross motion were held inabeyance and referred to the panel of Justices hearing the appeal for determination uponthe argument or submission of the appeal.
Upon the papers filed in support of the motion and the cross motion, and the papersfiled in opposition thereto, and upon the argument of the appeal, it is
Ordered that the branch of the motion which is for the Court to take judicial notice ofthe parties' marriage license is granted; and it is further,
Ordered that the cross motion is denied. [Prior Case History: 2013 NY Slip Op31478(U).]