Betz v. Blatt

211 A.D.3d 1004

180 N.Y.S.3d 599

Debra BETZ, etc., respondent,

v.Arnold W. BLATT, appellant, et al., defendants.

2019–14588

Index No. 58938/11

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

Argued—October 6, 2022

December 28, 2022

Arnold W. Blatt, New City, NY, appellant pro se.

Bashian, P.C., White Plains, NY (Gary E. Bashian and Andrew Frisenda of counsel), for respondent.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendant Arnold W. Blatt appeals from a judgment of the Supreme Court, Westchester County (Gerald E. Loehr, J.), dated June 7, 2019. The judgment, after a nonjury trial, is in favor of the plaintiff and against the defendant Arnold W. Blatt in the principal sum of $1,856,699.36.

ORDERED that the judgment is affirmed, with costs.

The factual history of this case is set forth in prior decisions and orders of this Court (see Betz v. Blatt, 160 A.D.3d 696, 74 N.Y.S.3d 75 ; Betz v. Blatt, 160 A.D.3d 689, 75 N.Y.S.3d 217 ; Betz v. Blatt, 116 A.D.3d 813, 984 N.Y.S.2d 378 ). Insofar as is relevant to this appeal, the plaintiff, in her capacity as substitute executor of her father's estate (hereinafter the decedent's estate), commenced this action to recover damages for legal malpractice against, among others, the defendant Arnold W. Blatt (hereinafter the defendant), who represented a former executor of the estate who was removed for cause. The plaintiff asserted causes of action alleging, inter alia, that the defendant committed legal malpractice and violated Judiciary Law § 487 (see Betz v. Blatt, 160 A.D.3d 696, 74 N.Y.S.3d 75 ).

After a nonjury trial, the Supreme Court found that the defendant committed legal malpractice with respect to the decedent's estate, but that the plaintiff did not establish a violation of Judiciary Law § 487. The court awarded the plaintiff damages as against the defendant in the principal sum of $1,856,699.36. The defendant appeals.

Although an attorney representing the executor of an estate, generally, is not liable to the beneficiaries of the estate (see Kramer v. Belfi, 106 A.D.2d 615, 616, 482 N.Y.S.2d 898 ), as the attorney does not represent the estate itself (see Betz v. Blatt, 116 A.D.3d at 816, 984 N.Y.S.2d 378 ; Matter of Hof, 102 A.D.2d 591, 593, 478 N.Y.S.2d 39 ), when fraud, collusion, malicious acts, or other special circumstances exist, an attorney may be liable to those third parties, even though not in privity with them, for harm caused by professional negligence (see Davis v. Farrell Fritz, P.C., 201 A.D.3d 869, 871, 163 N.Y.S.3d 82 ; Betz v. Blatt, 160 A.D.3d at 698, 74 N.Y.S.3d 75 ).

Here, although the defendant was not in privity with the estate, the evidence nevertheless established the existence of special circumstances subjecting him to liability (see Betz v. Blatt, 160 A.D.3d at 698, 74 N.Y.S.3d 75 ; Betz v. Blatt, 116 A.D.3d at 816, 984 N.Y.S.2d 378 ). At trial, the defendant admitted that, even though he was "not competent to do accountings," he did not arrange or direct the former executor to arrange for a professional accounting. Further, despite his admitted unfamiliarity with probate law, it was apparent to the defendant that the proposed accounting he circulated on behalf of the former executor was "terrible." Nevertheless, the defendant neither alerted the Surrogate's Court nor opposing counsel to the accounting problem.

Significantly, the defendant admitted that he was aware that the payment of estate funds by the former executor to the former executor and the former executor's children amounted to self-dealing, but that the defendant took no action other than providing advice to the former executor—which the defendant further admitted he knew would be ignored. Moreover, although the defendant testified that the former executor's conduct was "shocking," he nonetheless continued to disburse estate funds to the former executor—including funds from the sale of a parcel of real property which formed the estate's primary asset. The defendant's failure to notify the Surrogate's Court or withdraw as counsel upon discovering the self-dealing and misconduct of the former executor,...