| Epstein v Fried |
| 2017 NY Slip Op 03488 [150 AD3d 691] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| Donald Epstein, Respondent, v Ari Fried, Appellant,and Leventhal & Kofman, P.C., et al., Respondents, et al.,Defendants. |
Wimpfheimer & Wimpfheimer, New York, NY (Reuben Blum and MichaelWimpfheimer of counsel), for appellant-respondent.
Lowenthal & Kofman, P.C., Brooklyn, NY (Steven Lowenthal of counsel), incorrectlysued herein as Leventhal & Kofman, P.C., respondent pro se.
The Law Office of Jeffrey Fleischmann, P.C., New York, NY, for respondent Adler &Fink, Esqs.
In an action, inter alia, for an accounting, the plaintiff appeals from so much of an order ofthe Supreme Court, Kings County (Knipel, J.), dated August 13, 2015, as granted those branchesof the separate motions of the defendants Leventhal & Kofman, P.C., and Adler &Fink, Esqs., which were pursuant to CPLR 3211 (a) (7) and CPLR 306-b to dismiss thecomplaint insofar as asserted against each of them, and denied those branches of his crossmotions which were pursuant to CPLR 3025 (b) for leave to amend the complaint and pursuantto CPLR 306-b to extend the time to serve the summons with notice on those defendants, and thedefendant Ari Fried cross-appeals from the same order.
Ordered that the cross appeal by the defendant Ari Fried is dismissed as abandoned forfailure to perfect the cross appeal in accordance with the rules of this Court (see 22NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants-respondents.
The plaintiff commenced this action, inter alia, for an accounting against, among others, thedefendants Leventhal & Kofman, P.C. (hereinafter L&K), and Adler & Fink,Esqs. (hereinafter the Fink firm). L&K and the Fink firm separately moved, inter alia,pursuant to CPLR 3211 (a) (7) and CPLR 306-b to dismiss the complaint insofar as assertedagainst each of them. The plaintiff filed two cross motions, one as to L&K and one as to theFink firm, inter alia, pursuant to CPLR 3025 (b) for leave to amend the complaint and pursuantto CPLR 306-b to extend the time to serve the summons with notice on those defendants. TheSupreme Court granted those branches of the separate motions and denied those branches of thecross motions. The plaintiff appeals.
[*2] Service of asummons with notice must be made within 120 days after the commencement of the action(see CPLR 306-b). "If service is not made upon a defendant within the time provided inthis section, the court, upon motion, shall dismiss the action without prejudice as to thatdefendant, or upon good cause shown or in the interest of justice, extend the time for service"(CPLR 306-b). In this case, it is undisputed that service was not made on L&K or the Finkfirm within 120 days after the action was commenced by the filing of the summons with notice.The plaintiff failed to establish good cause for his failure to timely serve L&K or the Finkfirm (see Valentin v Zaltsman, 39AD3d 852 [2007]). Additionally, the plaintiff failed to demonstrate that an extension of timeto effectuate service on those defendants was warranted in the interest of justice (see Brown v Sanders, 142 AD3d940, 941 [2016]). Moreover, accepting as true the facts alleged in the complaint andaccording the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84NY2d 83, 87-88 [1994]), the complaint failed to state a viable cause of action for an accountingagainst either L&K or the Fink firm. The complaint did not adequately allege factssupporting the existence of a confidential or fiduciary relationship between the plaintiff andeither L&K or the Fink firm (seeRoyal Warwick S.A. v Hotel Representative, Inc., 106 AD3d 451, 452 [2013]; Center for Rehabilitation & Nursing atBirchwood, LLC v S & L Birchwood, LLC, 92 AD3d 711, 713-714 [2012]).
Accordingly, the Supreme Court properly granted those branches of the separate motions ofL&K and the Fink firm which were pursuant to CPLR 3211 (a) (7) and CPLR 306-b todismiss the complaint insofar as asserted against each of them, and properly denied thosebranches of the plaintiff's cross motions which were pursuant to CPLR 306-b to extend the timeto serve the summons with notice on those defendants.
Further, the Supreme Court providently exercised its discretion in denying those branches ofthe plaintiff's cross motions which were for leave to amend the complaint. "Although leave toamend should be freely given in the absence of prejudice or surprise to the opposing party(see CPLR 3025 [b]), the motion should be denied where the proposed amendment ispalpably insufficient or patently devoid of merit" (Strunk v Paterson, 145 AD3d 700, 701 [2016]; see Lucido v Mancuso, 49 AD3d220, 229 [2008]). "Whether to grant such leave is within the motion court's discretion, theexercise of which will not be lightly disturbed" (Pergament v Roach, 41 AD3d 569, 572 [2007]). Here, the proposedamendments were patently devoid of merit.
The Fink firm's remaining contentions either are not properly before this Court or need not bereached in light of our determination. Mastro, J.P., Leventhal, Hall and Sgroi, JJ., concur.