Pinkesz Mut. Holdings, LLC v. Pinkesz

198 A.D.3d 693

156 N.Y.S.3d 216

PINKESZ MUTUAL HOLDINGS, LLC, plaintiff-appellant,

v.Edward PINKESZ, etc., et al., defendants third-party plaintiffs-respondents,Joel Wurtzberger, defendant-appellant, et al., defendants;

Saul E. Feder, etc., et al., third-party defendants-appellants, et al., third-party defendants.

2019–00216, 2019–00218

Index No. 507958/13

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

Argued—June 7, 2021

October 6, 2021

Amhuty, Demers & McManus LLP, Albertson, N.Y. (Susan Mauro of counsel), for plaintiff-appellant and third-party defendant-appellant Shirley Elfie Life Trust.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for defendant-appellant.

Winget, Spadafora & Schwartzberg LLP, New York, N.Y. (Anthony D. Green and Alexander A. Truitt of counsel), for third-party defendants-appellants Saul E. Feder and Regosin, Edwards, Stone & Feder.

J. Singer Law Group, PLLC, New York, N.Y. (Jeb Singer of counsel), for third-party defendants-appellants Alan Rubenstein and Abraham Leifer and third-party defendant Horowitz & Rubenstein, LLC.

Herrick, Feinstein LLP, named herein as Herrick Feinstein, LLP, New York, N.Y. (Scott E. Mollen of counsel), third-party defendant-appellant pro se and for third-party defendant-appellant Janice Goldberg.

Law Office of Susie Chovev, Esq., PLLC, Woodmere, NY, for defendant third-party plaintiff-respondent Edward Pinkesz.

CHERYL E. CHAMBERS, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff and the third-party defendant Shirley Elfie Life Trust appeal, the defendant Joel Wurtzberger separately appeals, the third-party defendants Saul E. Feder and Regosin, Edwards, Stone & Feder separately appeal, the third-party defendants Alan Rubenstein and Abraham Leifer separately appeal, and the third-party defendants Janice Goldberg and Herrick Feinstein, LLP, separately appeal, from two orders of the Supreme Court, Kings County (Johnny Lee Baynes, J.), both dated November 20, 2018. The orders, insofar as appealed from by the plaintiff and the third-party defendant Shirley Elfie Life Trust, denied their motion pursuant to CPLR 3211(a) to dismiss the counterclaims of the defendants third-party plaintiffs Edward Pinkesz and Anthony Pinkesz and the third-party complaints insofar as asserted against the third-party defendant Shirley Elfie Life Trust. The orders, insofar as appealed from by the defendant Joel Wurtzberger, denied that branch of the motion of that defendant and the third-party defendants Janice Goldberg and Herrick Feinstein, LLP, which was pursuant to CPLR 3211(a) to dismiss the cross claims asserted against him by the defendants third-party plaintiffs Edward Pinkesz and Anthony Pinkesz. The orders, insofar as appealed from by the third-party defendants Saul E. Feder and Regosin, Edwards, Stone & Feder, denied their motion pursuant to CPLR 3211(a) to dismiss the third-party complaint of the defendant third-party plaintiff Edward Pinkesz insofar as asserted against them and denied their separate motion pursuant to CPLR 3211(a) to dismiss the third-party complaint of the defendant third-party plaintiff Anthony Pinkesz insofar as asserted against them. The orders, insofar as appealed from by the third-party defendants Alan Rubenstein and Abraham Leifer, denied the motion of those third-party defendants and the third-party defendant Horowitz & Rubenstein, LLC, pursuant to CPLR 3211(a) to dismiss the third-party complaints insofar as asserted against them. The orders, insofar as appealed from by the third-party defendants Janice Goldberg and Herrick Feinstein, LLP, denied that branch of the motion of the defendant Joel Wurtzberger and those third-party defendants which was pursuant to CPLR 3211(a) to dismiss the third-party complaints insofar as asserted against them.

ORDERED that the orders are modified, on the law, (1) by deleting the provision thereof denying the motion of the plaintiff and the third-party defendant Shirley Elfie Life Trust pursuant to CPLR 3211(a) to dismiss the counterclaims of the defendants third-party plaintiffs Edward Pinkesz and Anthony Pinkesz and the third-party complaints insofar as asserted against the third-party defendant Shirley Elfie Life Trust, and substituting therefor a provision granting the motion, (2) by deleting the provision thereof denying the motion of the third-party defendants Saul E. Feder and Regosin, Edwards, Stone & Feder pursuant to CPLR 3211(a) to dismiss the third-party complaint of the defendant third-party plaintiff Edward Pinkesz insofar as asserted against them, and substituting therefor a provision granting the motion, (3) by deleting the provision thereof denying the motion of the third-party defendants Saul E. Feder and Regosin, Edwards, Stone & Feder pursuant to CPLR 3211(a) to dismiss the third-party complaint of the defendant third-party plaintiff Anthony Pinkesz insofar as asserted against them, and substituting therefor a provision granting the motion, (4) by deleting the provision thereof denying the motion of the third-party defendants Alan Rubenstein, Horowitz & Rubenstein, LLC, and Abraham Leifer pursuant to CPLR 3211(a) to dismiss the third-party complaints insofar as asserted against them, and substituting therefor a provision granting the motion, and (5) by deleting the provisions thereof denying those branches of the motion of the defendant Joel Wurtzberger and the third-party defendants Janice Goldberg and Herrick Feinstein, LLP, which were pursuant to CPLR 3211(a) to dismiss (a) the third-party complaints insofar as asserted against the third-party defendants Janice Goldberg and Herrick Feinstein, LLP, (b) the cross claims asserted against the defendant Joel Wurtzberger by the defendant third-party plaintiff Edward Pinkesz for common-law indemnification and alleging abuse of process, conspiracy to commit fraud, and civil fraud upon the court, and (c) the cross claims asserted against the defendant Joel Wurtzberger by the defendant third-party plaintiff Anthony Pinkesz for common-law indemnification and alleging abuse of process and fraud, and substituting therefor provisions granting those branches of the motion; as so modified, the orders are affirmed insofar as appealed from, with one bill of costs to the appellants appearing separately and filing separate briefs, payable by the defendants third-party plaintiffs.

In December 2013, the plaintiff, Pinkesz Mutual Holdings, LLC (hereinafter PMH), commenced this action against, among others, the defendants Joel Wurtzberger, Edward Pinkesz, and Anthony Pinkesz, asserting, inter alia, causes of action sounding in breach of contract, fraud, and breach of fiduciary duty, and seeking related equitable relief.

After extensive pre-answer motion practice, including a motion to compel arbitration, various motions to dismiss the complaint, a cross motion for the imposition of sanctions, and a motion to compel discovery, Edward and Anthony each joined issue, asserting various cross claims against Wurtzberger and counterclaims against PMH, and commencing separate third-party actions against Saul E. Feder, Regosin, Edwards, Stone & Feder (hereinafter RESF), Alan Rubenstein, Horowitz & Rubenstein, LLC (hereinafter Horowitz & Rubenstein), Abraham Leifer, Shirley Elfie Life Trust (hereinafter the Trust), Janice Goldberg, Herrick Feinstein, LLP (hereinafter Herrick Feinstein), and another third-party defendant. Edward asserted cross claims, counterclaims, and/or third-party causes of action alleging abuse of process, conspiracy to commit fraud, civil fraud upon the court, and violations of Judiciary Law § 487, and seeking common-law indemnification and contribution. Anthony asserted cross claims, counterclaims, and/or third-party causes of action alleging abuse of process, breach of contract, fraud, and violations of Judiciary Law § 487, and seeking common-law indemnification and contribution.

Feder and RESF moved pursuant to CPLR 3211(a)(7) to dismiss Edward's third-party complaint insofar as asserted against them, and separately moved pursuant to CPLR 3211(a)(7) to dismiss Anthony's third-party complaint insofar as asserted against them. Wurtzberger, Goldberg, and Herrick Feinstein moved pursuant to CPLR 3211(a)(1) and (7) to dismiss Edward's and Anthony's cross claims asserted against Wurtzberger and the third-party complaints insofar as asserted against Goldberg and Herrick Feinstein. PMH and the Trust moved pursuant to CPLR 3211(a)(7) to dismiss the counterclaims and the third-party complaints insofar as asserted against the Trust. Rubenstein, Horowitz & Rubenstein, and Leifer moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the third-party complaints insofar as asserted against them.

After hearing oral argument on February 13, 2018, the Supreme Court made a determination on the record to deny, without prejudice, all of the motions to dismiss, "subject to renewal after expedited discovery is conducted and completed." On November 20, 2018, the court so-ordered the transcript of the February 13, 2018 proceedings and issued a separate order denying the motions...