Betz v. Blatt

160 A.D.3d 689

75 N.Y.S.3d 217

Debra BETZ, etc., respondent,

v.Arnold W. BLATT, et al., appellants.

2014–11352

Index No. 58938/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 17, 2017

April 11, 2018

David Isaacson, New City, NY, for appellant Arnold W. Blatt.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Anthony J. Proscia of counsel), for appellants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless, Thomas Leghorn, and A. Ernest Tonorezos of counsel), for appellant Anthony J. Pieragostini.

Bashian & Farber, LLP, White Plains, N.Y. (Andrew Frisenda of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, (1) the defendant Arnold W. Blatt appeals from so much of an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated December 4, 2014, as granted the plaintiff's motion for leave to renew her opposition to that branch of his motion which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action, which had been granted in an order of the same court dated August 1, 2012, and, upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead that cause of action, (2) the defendant Anthony J. Pieragostini separately appeals from so much of the order dated December 4, 2014, as granted the plaintiff's motion for leave to renew her opposition to that branch of his motion which was pursuant to CPLR 3211(a) to dismiss the tenth cause of action, which had been granted in the order dated August 1, 2012, and upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead that cause of action, and (3) the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, separately appeal from so much of the order dated December 4, 2014, as (a) granted the plaintiff's motion for leave to renew her opposition to that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the thirteenth and fifteenth causes of action, which had been granted in the order dated August 1, 2012, and, upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead those causes of action, and (b) denied their cross motion for an award of costs and sanctions.

ORDERED that the order dated December 4, 2014, is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants appearing separately and filing separate briefs.

The plaintiff commenced this action against the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano, LLP (hereinafter together the Sirignano defendants), Arnold W. Blatt, and Anthony J. Pieragostini, seeking to recover damages for legal malpractice, fraud, and other torts arising out of work they each performed relating to the administration of the estate of Carmelo Carbone (hereinafter the decedent) by the decedent's brother Michaelangelo Carbone (hereinafter Carbone). The defendants represented Carbone and/or the estate in contested probate proceedings in Surrogate's Court, including an accounting which was contested that was submitted by Carbone in those probate proceedings. In his will, the decedent left the bulk of his estate to his daughters, the plaintiff and Cristina Carbone–Lopez (see Betz v. Blatt, 116 A.D.3d 813, 814, 984 N.Y.S.2d 378 ), and named his brother as executor (see id. at 814, 984 N.Y.S.2d 378 ). After the contested probate proceedings, including the contested accounting, Carbone's letters testamentary were suspended, he was surcharged in excess of $1,025,000 for his looting and mismanagement of the estate (see id. at 814, 984 N.Y.S.2d 378 ), the court found him in contempt, and he fled the jurisdiction. On prior appeals from orders of the Surrogate's Court, this Court upheld these sanctions (see id. ; Matter of Carbone, 101 A.D.3d 866, 869, 955 N.Y.S.2d 209 ). The plaintiff was substituted as executor (see Betz v. Blatt, 116 A.D.3d at 814, 984 N.Y.S.2d 378 ).

In her capacity as executor, the plaintiff commenced this action, alleging, inter alia, legal malpractice by the defendants. Pieragostini and the Sirignano defendants separately moved pursuant to CPLR 3211(a) to dismiss the causes of action asserted against them. Blatt moved for summary judgment dismissing the causes of action asserted against him, but the Supreme Court deemed his motion to be a motion pursuant to CPLR 3211(a) (see id. ). In an order dated August 1, 2012 (hereinafter the August 2012 order), the court granted those branches of the respective motions of Pieragostini, the Sirignano defendants, and Blatt which were to dismiss the causes of action alleging breach of fiduciary duty, fraud, and violation of Judiciary Law § 487, and the causes of action seeking disgorgement and restitution insofar as asserted against each of them, but denied those branches of their motions which were to dismiss the legal malpractice causes of action (see id. at 814–815, 984 N.Y.S.2d 378 ). On the plaintiff's appeal and the Sirignano defendants' cross appeal from the August 2012 order, this Court modified the August 2012 order by granting that branch of the Sirignano defendants' motion which was to dismiss the eleventh cause of action, alleging legal malpractice against them, and denying that branch of their motion which was to dismiss the fourteenth cause of action, seeking disgorgement and restitution against them (see id. at 815–816, 984 N.Y.S.2d 378 ). Insofar as is relevant to this appeal, this Court also affirmed the Supreme Court's granting of those branches of the defendants' respective motions which were to dismiss the fraud and Judiciary Law causes of action on the grounds that they were duplicative and were not pleaded with the required degree of particularity (see id. at 816–817, 984 N.Y.S.2d 378 ).

Subsequently, the plaintiff moved for leave to renew her opposition to the defendants' motions to dismiss and to serve a second amended complaint. The plaintiff contended that the depositions of Blatt and Pieragostini, which had taken place after the August 2012 order had been issued, yielded sufficient additional evidence to permit her to plead her causes of action with greater particularity. The Sirignano defendants cross-moved for sanctions, seeking, inter alia, costs and a declaration that the plaintiff is a vexatious litigator. In an order dated December 4, 2014 (hereinafter the December 2014 order), the Supreme Court granted the plaintiff's motion for leave to renew and, upon renewal, in effect, vacated those portions of the August 2012 order which granted that branch of Blatt's motion which was to dismiss the fifth cause of action, alleging violation of Judiciary Law § 487 against him, that branch of Pieragostini's motion which was to dismiss the tenth cause of action, alleging violation of Judiciary Law § 487 against him, and those branches of the Sirignano defendants' motion which were to dismiss the thirteenth and fifteenth causes of action, alleging aiding and abetting fraud and violation of Judiciary Law § 487, respectively, against them, and granted leave to the plaintiff to replead those causes of action. The Supreme Court also denied the Sirignano defendants' cross motion for an award of costs and sanctions. Blatt, Pieragostini, and the Sirignano defendants separately appeal from so much of the December 2014 order as permitted the plaintiff to replead those causes of action insofar as asserted against each of them. The Sirignano defendants also appeal from the denial of their cross motion for sanctions. We affirm the December 2014 order insofar as appealed from.

A motion for leave to renew "must be (1) based upon new facts not offered on the prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion" ( Matter of Nelson v. Allstate Ins. Co., 73 A.D.3d 929, 929, 901 N.Y.S.2d 329 ; see Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 585–586, 953 N.Y.S.2d 301 ; Jovanovic v. Jovanovic, 96 A.D.3d 1019, 1020, 947 N.Y.S.2d 554 ; Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 391, 850 N.Y.S.2d 629 ). The new or additional facts presented "either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" ( Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d at 586, 953 N.Y.S.2d 301 ; see Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121 ; Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194 ; Renna v. Gullo, 19 A.D.3d 472, 473, 797 N.Y.S.2d 115 ; Mollin v. County of Nassau, 2 A.D.3d 600, 601, 769 N.Y.S.2d 59 ). A party seeking leave to renew after an appellate determination "bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty" ( Estate of Castellone v. JP Morgan Chase Bank, N.A., 129 A.D.3d 771, 772, 11 N.Y.S.3d 226 [internal quotation marks omitted]; see Matter of Crane, 127 A.D.3d 747, 748, 8 N.Y.S.3d 219 ; Davi v. Occhino, 116 A.D.3d 651, 652, 983 N.Y.S.2d 573 ).

Here, the depositions conducted subsequent to the Supreme Court's August 2012 order yielded substantial additional evidence which permitted the plaintiff to state the causes of action alleging violation of Judiciary Law § 487 against the defendants in greater detail and to refine the cause of action alleging aiding and abetting fraud against the Sirignano defendants, which provided a strong basis upon which to change the court's prior determination of the defendants' respective...