Preview
FILED: NEW YORK COUNTY CLERK 12/08/2021
01/25/2022 03:10
12:39 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 149
156 RECEIVED NYSCEF: 12/08/2021
01/25/2022
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Renwick, J.P., Mazzarelli, Singh, Mendez, Higgitt, JJ.
14772 STELLA STOLPER, Index No. 652352/18
Plain tiff-Respondent, Case No. 2021-00275
-against-
ZARINA BURBACKI,
Defendant-Appellant.
Jonathan E. Neuman, Fresh Meadows, for appellant.
Russo PLLC,New York (Robert Sidorsky of counsel), for respondent.
Order, Supreme Court, New York County (Andrew Borrok, J.),entered July 20,
2020, which, to the extent appealed from as limited by the briefs, denied defendant's
motion to dismiss the complaint pursuant to CPLR 32u(a)(1),(5) and (7), unanimously
affirmed, with costs.
Plaintiff alleges that defendant was retained as her personal attorney and as in-
house counsel for Wikked Entertainment, Inc., plaintiffs talent agency and production
company. Plaintiffs amended complaint alleges that defendant converted funds,
breached her fiduciary duty, defamed plaintiff with third parties including a former
primary client, and committed legal malpractice.
Defendant moved to dismiss claiming that she worked as an assistant to the
primary client, not as plaintiffs lawyer. Alternatively, she argues that even if she were
deemed plaintiffs lawyer, plaintiff is bound by a settlement and Mutual Release
Agreement she entered in settlement of a separate New York action brought against the
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FILED: NEW YORK COUNTY CLERK 12/08/2021
01/25/2022 03:10
12:39 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 149
156 RECEIVED NYSCEF: 12/08/2021
01/25/2022
primary client in 2018. She argues that because a carve out provision was made for a
different assistant in the Settlement and Mutual Release Agreement, a similar carve out
provision was necessary to exclude defendant from the terms of the Mutual Release
Agreement.
Supreme Court denied defendant's motion to dismiss. The court found that the
language in Section 4(a) ofthe Settlement and Mutual Release Agreement, which states
in relevant part that the parties and all their respective "lawyers, and all others who may
take any interest in the matters herein released (the Stolper Releasees) and (the Carey
Releasees), collectively (the Releasees), hereby fully and forever release, acquit, and
discharge each other and each other's ... lawyers and all others who may take any
interest in the matters herein ... " only released the parties and each other's lawyers.
The Court further determined that the parties did not release any claims each party
might have against their own lawyers and any carve out provisions in the Mutual
Release Agreement - in sections 4(c) and 4(d) - do not otherwise expand the provisions
of the release itself.
Accepting plaintiffs allegations that defendant acted as her personal attorney as
true, as is required on a motion to dismiss, the Court properly denied defendant's
motion to dismiss the complaint based upon a mutual release. A release may not be read
to cover matters which the parties did not desire or intend to dispose of (see Enock v
National Westminster Bankcorp., Inc. 226 AD2d 235 [1st Dept 1996]). Contrary to
defendant's contention, the record does not demonstrate that the Mutual Release
Agreement between plaintiff and a third party, in which plaintiff agreed to release
claims against the third party's agents including their lawyers, barred plaintiffs instant
claims against defendant arising out of her alleged misconduct while she was employed
2
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FILED: NEW YORK COUNTY CLERK 12/08/2021
01/25/2022 03:10
12:39 PM INDEX NO. 652352/2018
NYSCEF DOC. NO. 149
156 RECEIVED NYSCEF: 12/08/2021
01/25/2022
"
as plaintiffs attorney (see generally Linn v New York Downtown Hosp., 139 AD3d 574,
575 [1st Dept 2016]).
We have considered defendant's remaining contentions and find them
unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 7, 2021
Susanna Molina Rojas
Clerk of the Court
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Preview
FILED: NEW YORK COUNTY CLERK 12/08/2021 01/25/2022 03:10 12:39 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 149 156 RECEIVED NYSCEF: 12/08/2021 01/25/2022 ~uprtmt QCourtof tbt ~tatt of ~ttn ~ork ~ptIlatt 1iibi~ion,.1ir~tjfubitiaI 1iepartmtnt Renwick, J.P., Mazzarelli, Singh, Mendez, Higgitt, JJ. 14772 STELLA STOLPER, Index No. 652352/18 Plain tiff-Respondent, Case No. 2021-00275 -against- ZARINA BURBACKI, Defendant-Appellant. Jonathan E. Neuman, Fresh Meadows, for appellant. Russo PLLC,New York (Robert Sidorsky of counsel), for respondent. Order, Supreme Court, New York County (Andrew Borrok, J.),entered July 20, 2020, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 32u(a)(1),(5) and (7), unanimously affirmed, with costs. Plaintiff alleges that defendant was retained as her personal attorney and as in- house counsel for Wikked Entertainment, Inc., plaintiffs talent agency and production company. Plaintiffs amended complaint alleges that defendant converted funds, breached her fiduciary duty, defamed plaintiff with third parties including a former primary client, and committed legal malpractice. Defendant moved to dismiss claiming that she worked as an assistant to the primary client, not as plaintiffs lawyer. Alternatively, she argues that even if she were deemed plaintiffs lawyer, plaintiff is bound by a settlement and Mutual Release Agreement she entered in settlement of a separate New York action brought against the 1 of 3 FILED: NEW YORK COUNTY CLERK 12/08/2021 01/25/2022 03:10 12:39 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 149 156 RECEIVED NYSCEF: 12/08/2021 01/25/2022 primary client in 2018. She argues that because a carve out provision was made for a different assistant in the Settlement and Mutual Release Agreement, a similar carve out provision was necessary to exclude defendant from the terms of the Mutual Release Agreement. Supreme Court denied defendant's motion to dismiss. The court found that the language in Section 4(a) ofthe Settlement and Mutual Release Agreement, which states in relevant part that the parties and all their respective "lawyers, and all others who may take any interest in the matters herein released (the Stolper Releasees) and (the Carey Releasees), collectively (the Releasees), hereby fully and forever release, acquit, and discharge each other and each other's ... lawyers and all others who may take any interest in the matters herein ... " only released the parties and each other's lawyers. The Court further determined that the parties did not release any claims each party might have against their own lawyers and any carve out provisions in the Mutual Release Agreement - in sections 4(c) and 4(d) - do not otherwise expand the provisions of the release itself. Accepting plaintiffs allegations that defendant acted as her personal attorney as true, as is required on a motion to dismiss, the Court properly denied defendant's motion to dismiss the complaint based upon a mutual release. A release may not be read to cover matters which the parties did not desire or intend to dispose of (see Enock v National Westminster Bankcorp., Inc. 226 AD2d 235 [1st Dept 1996]). Contrary to defendant's contention, the record does not demonstrate that the Mutual Release Agreement between plaintiff and a third party, in which plaintiff agreed to release claims against the third party's agents including their lawyers, barred plaintiffs instant claims against defendant arising out of her alleged misconduct while she was employed 2 2 of 3 FILED: NEW YORK COUNTY CLERK 12/08/2021 01/25/2022 03:10 12:39 PM INDEX NO. 652352/2018 NYSCEF DOC. NO. 149 156 RECEIVED NYSCEF: 12/08/2021 01/25/2022 " as plaintiffs attorney (see generally Linn v New York Downtown Hosp., 139 AD3d 574, 575 [1st Dept 2016]). We have considered defendant's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 7, 2021 Susanna Molina Rojas Clerk of the Court 3 I' 3 of 3