| Lewis, Brisbois, Bisgaard & Smith, LLP v Law Firm ofHoward Mann |
| 2016 NY Slip Op 05487 [141 AD3d 574] |
| July 13, 2016 |
| Appellate Division, Second Department |
[*1]
| Lewis, Brisbois, Bisgaard & Smith, LLP,Appellant, v Law Firm of Howard Mann, Respondent, and Howard Mann, Esq.,Defendant/Third-Party Plaintiff-Respondent. Mark Anesh, Also Known as MarkKenneth Anesh, et al., Third-Party Defendants-Appellants. |
Lewis, Brisbois, Bisgaard & Smith, LLP, New York, NY (Mark K. Anesh, suedherein as Mark Anesh, also known as Mark Kenneth Anesh, pro se, and Lee J. Lefkowitzof counsel), plaintiff-appellant pro se and for third-party defendants-appellants.
Law Firm of Howard Mann, New City, NY, defendant-respondent pro se and fordefendant third-party plaintiff-respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff andthe third-party defendants appeal from so much of an order of the Supreme Court,Rockland County (Walsh II, J.), entered August 23, 2013, as denied those branches oftheir motion which were pursuant to CPLR 3211 (a) to dismiss the second, third, fourth,fifth, sixth, seventh, eighth and ninth counterclaims, and the third-party complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the motion of the plaintiff and the third-party defendantswhich were pursuant to CPLR 3211 (a) to dismiss the second, third, fourth, fifth andeighth counterclaims and the third cause of action in the third-party complaint, andsubstituting therefor provisions granting those branches of the motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements.
On June 2, 2009, the plaintiff, Lewis, Brisbois, Bisgaard & Smith, LLP, and thedefendants, the Law Firm of Howard Mann and Howard Mann, Esq., individually,entered into a written retainer agreement, pursuant to which the plaintiff was to representthe defendants in an underlying action commenced in the Supreme Court, RocklandCounty. On December 28, 2009, the parties filed an executed consent to change attorneyform in that underlying action, pursuant to which the plaintiff was discharged as thedefendants' attorney in the underlying action.
In January 2013, the plaintiff commenced this action against the defendants, interalia, to recover unpaid legal fees for legal services it rendered. In an amended answerdated March 1, 2013, the defendants asserted nine counterclaims against the plaintiff. Atthat time, the defendants also, in effect, commenced a third-party action against thethird-party defendants, attorneys Mark [*2]Anesh, alsoknown as Mark Kenneth Anesh, and Matthew Leiss, also known as Matthew T. Leis,asserting four causes of action.
The Supreme Court properly denied those branches of the motion of the plaintiff andthe third-party defendants (hereinafter collectively the appellants) which were pursuant toCPLR 3211 (a) (5) to dismiss, as time-barred, the second, fourth, fifth, sixth and eighthcounterclaims, as well as the first and third causes of action in the third-party complaint,all of which allege legal malpractice, breach of contract, or breach of fiduciary duty, aswell as the ninth counterclaim and the fourth cause of action in the third-party complaint,which allege a violation of Judiciary Law § 487. "[C]laims and defensesthat arise out of the same transaction as a claim asserted in the complaint are not barredby the Statute of Limitations, even though an independent action by defendant mighthave been time-barred at the time the action was commenced" (Bloomfield vBloomfield, 97 NY2d 188, 193 [2001]; see CPLR 203 [d]). In the instantmatter, the subject counterclaims and third-party causes of action all arise from thetransactions and occurrences upon which the complaint depends. Accordingly, they arenot time-barred to the extent of the demand in the complaint (see CPLR 203 [d]).Since the appellants' motion did not address the applicability of CPLR 203 (d), theappellants did not establish their entitlement to dismissal pursuant to CPLR 3211 (a)(5).
However, the Supreme Court should have granted that branch of the appellants'motion which was to dismiss the second, fourth, fifth and eighth counterclaims and thethird cause of action in the third-party complaint pursuant to CPLR 3211 (a) (7). Thoseclaims are each duplicative of the sixth counterclaim and the first cause of action in thethird-party complaint, which alleged legal malpractice, as they arise from the same set offacts and do not allege any distinct damages (see Comprehensive Mental Assessment & Med. Care, P.C. vGusrae Kaplan Nusbaum, PLLC, 130 AD3d 670, 672 [2015]; Palmieri v Biggiani, 108 AD3d604, 608 [2013]; Soni vPryor, 102 AD3d 856 [2013]).
The ninth counterclaim and the fourth cause of action in the third-party complaint,alleging a violation of Judiciary Law § 487, stated cognizable claims and,thus, the Supreme Court did not err in declining to direct that they be dismissed pursuantto CPLR 3211 (a) (7) (seePalmieri v Biggiani, 108 AD3d 604 [2013]; Sabalza v Salgado, 85 AD3d 436 [2011]; Izko Sportswear Co., Inc. vFlaum, 25 AD3d 534 [2006]; cf. Schiller v Bender, Burrows & Rosenthal, LLP, 116AD3d 756 [2014]). For the same reason, the court also properly denied dismissal ofthe seventh counterclaim and the second cause of action in the third-party complaint,which alleged that the plaintiff and the third-party defendants improperly withheldportions of the defendants' litigation file in the underlying action (see Matter of SageRealty Corp. v Proskauer Rose Goetz & Mendelsohn, 91 NY2d 30 [1997]).
The Supreme Court should have directed the dismissal of the third counterclaimpursuant to CPLR 3211 (a) (7), as New York does not recognize an independent cause ofaction for the imposition of sanctions relating to frivolous actions (see Cerciello v Admiral Ins.Brokerage Corp., 90 AD3d 967 [2011]).
We decline to address the issues raised by the defendants in connection with theSupreme Court's denial of their cross motion pursuant to CPLR 3211 and CPLR 3212,since they do not cross-appeal from the order denying their cross motion (see Viafax Corp. v CiticorpLeasing, Inc., 54 AD3d 846 [2008]).
In light of our determination, we need not reach the appellants' remainingcontentions. Eng, P.J., Austin, Cohen and Barros, JJ., concur.