Preview
FILED: NEW YORK COUNTY CLERK 01/09/2023 10:13 PM INDEX NO. 152026/2022
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 01/09/2023
SUPREME COURT OF NEW YORK
COUNTY OF NEW YORK
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ANDREW KADAH,
Index No.: 152026/2022
Plaintiff,
Hon. Richard G. Latin
v.
MAYADA KADAH and
HOLLAND & KNIGHT, LLP
Defendants.
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________________________________________________________________________
PLAINTIFF ANDREW KADAH’S
MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANT HOLLAND & KNIGHT, LLP’S
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
________________________________________________________________________
The Roth Law Firm, PLLC
295 Madison Avenue
Floor 22
New York, New York 10017
Attorneys for Plaintiff
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TABLE OF CONTENTS
Preliminary Statement...................................................................................................................1
STATEMENT OF FACTS ...........................................................................................................4
Competing Petitions for Letters of Administration ...................................................................4
Plaintiff Disputed the Estate’s Claim of 100% ICM Stock Ownership ...................................5
HK Advised Plaintiff to Seek Appointment as Administrator Ad Litem ................................6
HK Missed the November 1, 2016 Deadline ................................................................................8
HK Researched Its Own Malpractice and Billed Plaintiff .........................................................9
HK Attempted to Cover Up Its Malpractice by
Falsely Advising Plaintiff That His Shares Were Invalid ........................................................10
Plaintiff’s ICM Stock Claim is Time-Barred ............................................................................12
ARGUMENT ................................................................................................................................14
POINT I: PLAINTIFF’S COMPLAINT SETS FORTH A
COGNIZABLE CAUSE OF ACTION AGAINST HK ...................................14
A. Standard on a Motion to Dismiss .............................................................................14
B. Plaintiff Stated a Claim for Legal Malpractice .......................................................15
1. Attorney-Client Relationship ..................................................................15
2. Negligence by HK .....................................................................................18
3. Proximate Cause .....................................................................................20
4. Damages ...................................................................................................21
POINT II: HK FAILED TO SHOW THAT PLAINTIFF’S COMPLAINT
SHOULD BE DISMISSED BASED ON DOCUMENTARY
EVIDENCE ..........................................................................................................22
POINT III: PLAINTIFF’S BREACH OF FIDUCIARY DUTY CLAIM
IS NOT DUPLICATIVE .....................................................................................23
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POINT IV: HK FAILED TO SHOW THAT NEW YORK IS AN
INCONVENIENT FORUM ................................................................................25
Conclusion ....................................................................................................................................29
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TABLE OF AUTHORITIES
CASES
83 Willow, LLC v Apollo,
187 A.D.3d 563 (1st Dep’t 2020) ...................................................................................................21
AG Capital Funding Partners, L.P. v State St. Bank and Tr. Co.,
5 N.Y.3d 582 (2005) .....................................................................................................................22
Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc., Inc.,
120 A.D.3d 431 (1st Dep’t 2014) .................................................................................................22
Ashley v. Maney, McCoville & Liccarrdi,
251 A.D.2d 862 (3rd Dep’t 1998) .................................................................................................18
Biondi v. Beekman Hill House Apt. Corp.,
257 A.D.2d 76 (1st Dep’t 1999), aff’d 94 N.Y.2d 659 (2000) .....................................................14
Campagnola v. Mulholland, Minion & Roe,
76 N.Y.2d 38, 42 (1990) ...............................................................................................................21
Cont'l Nat'l Bank v. Brill,
636 So. 2d 782 (Fla. 3d DCA 1994) .............................................................................................17
Matter of Cooperman
83 N.Y.2d at 472, 611 N.Y.S.2d 465 (1984) .................................................................................23
Darby & Darby, P.C. v. VSI Intern., Inc.,
95 N.Y. 2d 308 (2000) ..................................................................................................................18
DaSilva v. Suozzi, English, Cianciulli &Peirez, P.C.,
233 A.D.2d 172 (1st Dep’t 1996) .................................................................................................18
Deb-Jo Const., Inc. v. Westphal,
210 A.D.2d 951 (4th Dep’t 1994) .................................................................................................19
Degen v. Steinbrink,
202 App.Div. 477, 481 (1st Dep’t 1922) ......................................................................................19
EBC I, Inc. v Goldman, Sachs & Co.,
5 N.Y.3d 11, 19 (2005) .................................................................................................................14
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Estate of Re v. Kornstein Veisz & Wexler,
958 F.Supp. 907, 924 (S.D.N.Y.1997), appeal dismissed 159 F.3d 1346 (2d Cir.1998) .............23
Exeter Law Group LLP v. Immortalana Inc.,
159 A.D.3d 576, 577 (1st Dept. 2018) ...........................................................................................16
Fielding v Kupferman,
65 A.D.3d 437(1st Dep’t 2009) ....................................................................................................21
Fillippo v. Russo,
296 A.D.2d 374 (2nd Dep’t 2002) ................................................................................................19
Goldman v Metro. Life Ins. Co.,
5 N.Y.3d 561 (2005) .....................................................................................................................14
Goshen v Mut. Life Ins. Co. of New York,
98 N.Y.2d 314 (2002) ...................................................................................................................22
Greene v. Greene
47 N.Y.2d at 451, 418 N.Y.S.2d 379 (1979) .................................................................................23
Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 [1947] ...............................................................25
Iocovello v. Weingrad & Weingrad, P.C.,
262 A.D.2d 156 (1st Dep’t 1999) ..................................................................................................15
J.P. Morgan Sec. Inc. v Vigilant Ins. Co.,
21 N.Y.3d 324 (2013) ...................................................................................................................14
Jane St. Co. v Rosenberg & Estis, P.C.,
192 A.D.2d 451 (1st Dep’t 1993) ..................................................................................................15
Lappin v Greenberg,
34 A.D.3d 277 (1st Dep’t 2006) ...................................................................................................21
Leon v. Martinez,
84 N.Y.2d 83, 87-88 (1994) ..........................................................................................................14
Lif v. In re Estate of Lif,
325 So.3d 968, 972 (Fla. 3rd Dist. 2021) .......................................................................................17
McCoy v. Tepper,
261 A.D.2d 592 (2nd Dep’t 1999) ................................................................................................17
Moran v Hurst,
32 A.D.3d 909 (2nd Dep’t 2006) ...................................................................................................15
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Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP,
26 N.Y.3d 40 (2015) .....................................................................................................................21
Reibman v. Senie,
302 A.D.2d 290 (1st Dep’t 2003) .................................................................................................19
Richards v Security Resources,
187 A.D.3d 452 (1st Dep’t 2020) .................................................................................................14
Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer,
8 N.Y.3d 438 (2007) .....................................................................................................................21
Swaney v. Academy Bus Tours of New York, Inc.,
158 A.D. 3d 437, 438 (1st Dept. 2018) ..........................................................................................25
Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edleman & Dicker,
56 A.D.3d 1, 9 (1st Dept. 2008) .....................................................................................................23
VXI Lux Holdco S.A.R.L. v Sic Holdings, LLC,
171 A.D.3d 189, 193 (1st Dep’t 2019) .........................................................................................22
Wei Cheng Chang v. Pi,
288 A.D.2d 378 (2nd Dep’t 2001) .................................................................................................15
Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc.,
10 A.D.3d 267, 271 (1st Dep't 2004) ............................................................................................22
Wilson v. Dantas,
128 A.D.3d at 187, 9 N.Y.S.3d 187) .............................................................................................25
Wolf v. Reed,
389 So.2d 1026 (Fla 3rd Dist. 1980) ........................................................................................16, 23
Yiouti Restaurant, Inc. v. Sotiriou,
151 A.D.2d 744 (2nd Dep’t 1989) .......................................................................................... 18-19
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STATUTES
22 NYCRR §1200, Rule 1.1(a) .....................................................................................................19
CPLR 327.....................................................................................................................................1, 4
CPLR 3221(a)(1) ..................................................................................................................1, 4, 22
CPLR 3211(a)(7) ............................................................................................................1, 4, 14, 21
Florida Rule of Probate and Guardianship 5.120(a) .....................................................................17
TREATISES
Mallen and Smith, Legal Malpractice § 17.7, at 509 [4th ed.] .....................................................18
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Plaintiff, Andrew Kadah (“Plaintiff”) by his attorneys, The Roth Law Firm, PLLC,
submits this Memorandum of Law, together with the accompanying affidavit of Andrew Kadah
and exhibits thereto, in opposition to defendant Holland & Knight’s (“HK”) motion for an order
dismissing this action pursuant to CPLR 3211(a)(1) and (7) and CPLR 327.
PRELIMINARY STATEMENT
This is an action for legal malpractice against HK for its mishandling of Plaintiff’s
dispute with his father’s (“Hassan”) Estate, concerning ownership of International Controls and
Measurements Corp. (“ICM”). FAC, p.1. Specifically, Plaintiff alleges that HK committed legal
malpractice by failing to timely assert his claim to own ICM stock against Hassan’s Estate,
which resulted in a decision by the Florida Probate Court holding that Plaintiff’s claim was time-
barred. As a result of HK’s legal malpractice, Plaintiff has lost his ICM stock shares to the
Estate.
HK has moved to dismiss Plaintiff’s First Amended Complaint on the basis that HK was
never represented Plaintiff in his personal capacity with respect to his dispute with his father’s
Estate. HK Brief, p. 2. HK claims that HK only represented Plaintiff in his capacity as
Administrator Ad Litem of ICM stock, which made Plaintiff and HK a fiduciary of the Estate,
and therefore precluded HK from filing any claim, including Plaintiff’s, that would harm the
Estate. As Plaintiff shows on this motion, numerous documents from HK’s representation show
that HK is wrong and that HK represented Plaintiff with respect to his individual claim against
the Estate disputing the Estate’s ownership of 100% of ICM stock:
• July 12, 2016 Retainer Agreement:“[t]hank you for retaining Holland & Knight LLP
(“H&K”) to represent you in connection with the administration of your father’s
estate. FAC, ¶ 16, 47-48; Kadah Aff., ¶ 5, Exh. 1;Lang Aff., Exh. C.
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• July 25, 2016 Retainer Agreement: “As you know, we are also representing you in
connection with the disputes involving your late father’s estate.” FAC, ¶ 16, 47-48,
Kadah Aff., ¶ 11, Exh. 5.
• October 28, 2016 Objection to Intestate Probate: signed by HK “as attorneys for
Andrew Kadah, individually and as Adminstrator Ad Litem for the Estate of Hassan
B. Kadah.” Kadah Aff., ¶ 20, Exh. 14.
• February 2, 2017 Legal Bill: “research malpractice statute of limitation under NY
law, creditors claims against estate (.8)”. Kadah Aff., ¶ 28, Exh. 17.
• January 24, 2018 Memorandum: “we recommend that our client, Plaintiff Kadah,
and his similarly-situated siblings, nieces, and nephews, not pursue [their claim to
ICM stock] any further given …there is no meaningful financial advantage in
pursuing this position.” Kadah Aff., ¶ 32, Exh. 19, p. 2.
HK further argues that it cannot be liable for legal malpractice because, based on the
HK’s analysis documented in various memoranda, it was inconclusive who the true owners of
ICM stock were. HK Brief, p. 3 (“H&K could reach no rational conclusion as to the ownership
of any of ICM’s shares.”). However, even if it were true that HK could not determine who
owned ICM (Plaintiff disputes this as shown below), this is not a defense to legal malpractice
because it means there was a triable issue of fact, and HK failed to assert Plaintiff’s claim.
Moreover, a review of HK’s “analysis” shows an effort to coverup their malpractice for
failing to timely file Plaintiff’s claim by falsely advising Plaintiff that he did not own ICM stock
for reasons HK would later retract. First, on March 3, 2017, HK drafted a memorandum in which
it claimed Plaintiff’s ICM stock was invalid because the number of shares claimed by Plaintiff
exceeded the number of shares authorized by ICM’s articles of incorporation. FAC, ¶ 27, Exh. C;
Kadah Aff., ¶ 30, Exh. 6. HK later admitted in another memorandum dated March 7, 2019 that
Plaintiff’s ICM shares were in fact authorized. FAC, ¶ 36, Exh. E, p. 8; Kadah Aff., ¶ 30, 33,
Exh. 18, p. 8. Next, HK drafted a memorandum wherein it argued Plaintiff’s receipt of ICM
shares were an invalid “gift.” Kadah Aff., ¶ 32, Exh. 19. Yet again, HK acknowledged in the
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March 7, 2019 memorandum that there was evidence Plaintiff received the ICM stock in
consideration for his work at ICM and valuable patents he granted to ICM. FAC, Exh. E, p. 2;
Kadah Aff., ¶¶ 32, 33, Exh. 18. It is clear that these memoranda were drafted by HK to dissuade
Plaintiff from continuing to pursue his ICM stock ownership after HK negligently advised
Plaintiff that he did not own ICM stock and then missed the deadline to file a claim. As shown
herein, HK’s billings records submitted to Plaintiff in 2016 and 2017 indicate that HK knew it
made serious errors fairly quickly. Kadah Aff., ¶¶ 22-29. By September 9, 2016 and continuing
through at least February 2017, HK began to research attorney malpractice. Kadah Aff., ¶ 26-28,
Exhs. 15-17.
Finally, HK misleadingly implies that numerous courts have reviewed the substance of
Plaintiff’s claims and held that the Estate was the sole owner of all ICM stock. HK Brief, p. 6.
Nothing could be further from the truth. Plaintiff believed that he owned 3,160 shares of ICM
stock and retained HK to dispute the Estate’s claim that the Estate owned 100% of ICM. FAC, ¶¶
16, 47-48; Kadah Aff., ¶¶ 8, 11, 15, Exh. 5. HK, however, failed to assert Plaintiff’s claim to
own 3,160 shares of ICM stock against the Estate before the November 1, 2016 deadline. FAC,
¶¶ 26, 50. As a result of HK’s negligent representation, the Florida Probate Court held that
Plaintiff’s claim to ICM stock was time-barred as of November 1, 2016. FAC, ¶ 31.The Florida
court’s decision was affirmed by the Onondaga Supreme Court based on res judicata and
affirmed by the Fourth Department and Court of Appeals. However, no court has ever held that
Plaintiff did not own the 3,160 shares on the merits, only that his claim was time-barred.
Plaintiff does not seek to recover ICM stock shares in this action. Plaintiff accepts that this claim
is time-barred and instead seeks remedies against HK for legal malpractice.
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HK’s malpractice in failing to timely assert Plaintiff’s claim and refute the Estate’s claim
to 100% of ICM on behalf of Plaintiff is clear. FAC, ¶ 50. In their final memorandum dated
March. 9, 2019 on this matter, HK concluded, there was “no documentation of how [decedent]
acquired the stock, nor any document reflecting title ownership of ICM stock in [decedent’s]
name.” FAC, ¶ 36, Exh. E, p. 13; Kadah Aff., ¶ 35, Exh. 18, p. 13. Mayada’ own attorney
likewise conceded that he had never seen a single ICM stock certificate in Hassan’s name. Kadah
Aff., ¶ 39, Exh. 26 at p. 152:2-6. Even in this motion, HK argues it is “impossible” to determine
who owned the ICM stock, thereby admitting, at a minimum, a triable issue of fact existed as to
whether Plaintiff owned the ICM stock that he sought to dispute in the Estate matter. Lang Aff.,
¶ 21, n. 7, ¶ 6 (“far from clear”); HK Brief., p. 3
HK’s motion to dismiss pursuant to CPLR 3211(a)(1) should be denied as the documents
HKs submitted do not conclusively establish that there is no legal malpractice action. Further, the
motion pursuant to CPLR 3211(a)(7) should be denied because Plaintiff has stated a cause of
action against HK for their negligence in waiving Plaintiff’s claim to ICM Stock. Finally, the
motion pursuant to CPLR 327 should be denied because New York is a convenient forum.
STATEMENT OF FACTS
Competing Petitions for Letters of Administration
ICM is a corporation founded by Hassan and of which Plaintiff was the President. FAC, ¶
2; Kadah Aff., ¶ 2. The Administrator of the Estate, Mayada (Hassan’s third wife), claimed in
her petition for letters of administration that Hassan, and therefore the Estate, was the owner of
100% ICM stock. FAC ¶¶ 3-4; Kadah Aff., ¶ 7, Exh. 3. Mayada served a notice of administration
on August 1, 2016, that gave Plaintiff 90 days to object to the Estate’s claim of 100% ownership
of ICM by November 1, 2016. FAC ¶ 31, Kadah Aff., ¶ 13, Exh. 7
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Plaintiff retained HK, Holland & Knight (“HK” or “HK”) to represent him personally in
connection with the administration of his father’s estate. FAC, ¶¶ 16, 47; Kadah Aff., ¶¶ 5, Exh.
1. The retainer agreement dated July 12, 2016 states:
Thank you for retaining Holland & Knight LLP (“H&K”) to represent you in
connection with the administration of your father’s estate. We will seek to you
appointed as the administrator of your father’s estate and, once you are appointed,
advise you in that role.
Kadah Aff., ¶ 5, Exhs. 1..
However, Plaintiff never received letters of administration for his father’s estate because
his father’s third-wife, Mayada, was granted letters of administration on July 20, 2016, before
Plaintiff ever filed a petition to be appointed the personal Representative of the Estate. Kadah
Aff., ¶ 6, Exh. 2. Critically, Mayada’s July 14, 2016 petition for letters of administration asserted
that Hassan (and therefore the Estate)owned “100% of International Controls & Measures Corp.,
a closely-held corporation, with an estimated value of $15,000,000.” Stock. Kadah Aff., ¶ 7,
Exh. 3, p. 2. On August 1, 2016, Mayada served Plaintiff, and all other beneficiaries, with a
notice of administration, informing interest parties that they had three months to challenge the
Estate’s claim or were “forever barred.” FAC, ¶ 31; Kadah Aff., ¶ 13; Exh. 7.
Plaintiff Disputed the Estate’s Claim of 100% ICM Stock Ownership
Plaintiff disputed Mayada’s claim in her petition for letters of administration that the
Estate owned 100% of ICM because Plaintiff had in his possession an ICM stock book showing
that he owned 2,000 Class “A” voting shares and 1,160 Class “B” non-voting shares of ICM
stock based on his records. FAC, ¶ 22, 23-26; Exh. E, p. 7 (“[Based on] the stock book that was
in Andy’s possession . . . ownership of ICM is broken down as follows: …2,000 Class A voting
common stock to Andrew Kadah . . . 1,160 Class B non-voting common stock Andre Kadah”);
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Kadah Aff., ¶ 9. HK attorney, Bruce Ross, flew to Syracuse to meet with Plaintiff and review his
ICM stock ownership records in order to dispute Mayada’s claim:
Kadah Aff., ¶ 9 Exh. 4. Plaintiff entered into new retainer agreement with HK dated July 25,
2016 that confirmed HK represented in his personal capacity, and which states, “As you know,
we are also representing you in connection with disputes involving your late father’s estate.” 1
Kadah Aff., ¶ 11, Exh. 5.
HK Advised Plaintiff To Seek Appointment
As Adminstrator Ad Litem
Once Mayada was appointed Personal Representative of the Estate, Plaintiff expected
that HK would assert his claim to ICM stock against the Estate, but instead, HK advised Plaintiff
that his ICM stock was invalid and set Plaintiff on an errant path. FAC, ¶¶ 23, 25, Exh. C at p. 1
(“the stock certificates available [from Andrew Kadah] appear invalid, as they have been issued
in contravention of the Articles of Incorporation, issuing shares in excess of those autohrized by
the Articles”); Kadah Aff., ¶ 14-15. So, HK drafted a petition to have Plaintiff appointed as
Adminstrator Ad Litem (“AAL”) of ICM stock ownership documents for the purpose of putting
1
The July 25, 2016 retainer agreement was in connection with a lawsuit Plaintiff’s sister filed
against him in New York for wrongful termination from ICM. Id.
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Plaintiff in a position of power in the Estate matter to collect ICM stock records and prove his
claim. FAC, ¶ 19; Kadah Aff., ¶ 15, Exh. 22::
HK e-mailed Plaintiff an Emergency Petition for “an Order Appointing Plaintiff as
Administrator Ad Litem with regard to ICM stock on or about August 15, 2016 and advised
Plaintiff to sign it. Kadah Aff., ¶ 15; Exh. 8 (the “AAL petition,” at p. 6). Plaintiff had never
heard of or discussed the concept or position of Administrator Ad Litem until HK proposed the
concept to plaintiff days earlier.Kadah Aff., ¶ 15. Critically, HK never advised Plaintiff that once
appointed Administrator Ad Litem, he would have a conflict that prevent him, or HK as his
personal attorneys, from asserting a claim against the Estate. Kadah Aff., ¶¶ 15-16; HK Brief, p.
9; Lang Aff., ¶ 11.
Plaintiff reviewed the draft AAL petition and questioned HK about the representation in
the AAL petition that Plaintiff did “not dispute that the Estate owned 100% of ICM stock”
because Plaintiff did dispute that claim. Kadah Aff., ¶ 15; AAL petition, ¶¶ 3-4. (“[t]he principal
asset of the Estate is the common stock of ICM (the “ICM Stock”); (“[t]here is no dispute that
this property was the decedent’s property and is held in his estate.”). HK advised Plaintiff not to
worry about this representation paragraph 3 of the AAL Petition, which alleged that documents
showing the true ownership of ICM could be located, preserved Plaintiff’s ability to later dispute
the Estate’s claim to 100% ICM stock. Kadah Aff., ¶ 15; HK Brief, Exh. D, ¶ 3 (“Lastly, it is
believed that a shareholders’ agreement and documentation reflecting the transfer of ownership
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of ICM may be located. Billing records evidencing the preparation of the aforementioned
documents are attached hereto as Exhibit “A”.)
Kadah Aff., ¶ 15, Exh. 8, ¶ 3. Plaintiff relied on HK’s advice and signed the AAL petition on
August 15, 2016. Kadah Aff., ¶ 15. The following day, the Florida Probate Court granted the
AAL Petition. FAC, ¶ 4, Exh. A; Kadah Aff., ¶ 16..
HK Missed the November 1, 2016 Deadline.
At the same time that HK represented Plaintiff in his father’ estate, HK also represented
Plaintiff in a lawsuit brought against Plaintiff by his sister, Laurie Kadah, for wrongful
termination from ICM (the “NY Action”). FAC, ¶ 18. Kadah Aff., ¶ 10, 11, 18; Exh. 5. On
September 8, 2016, HK sent Plaintiff a draft Answer to Laurie Kadah’s Complaint in the NY
Action. Kadah Aff., ¶ 18, Exh. 12. HK attorney, Kyong Kim, included notes dated September 8,
2016 in the draft Answer acknowledging that Plaintiff had a valid claim to ICM stock, and that
the Estate did not own 100% of ICM, based on the records Plaintiff provided:
FAC, ¶ 22; Kadah Aff., ¶ 18, Exh. 12, ¶¶ 18, 78.
Critically, these notes were made after HK advised Plaintiff to sign the AAL petition in
which he stated he did not dispute the Estate’s claim of 100% ownership of ICM, but still within
the 90 day creditor period. FAC, ¶ 4, Exh. A; Kadah Aff., ¶¶ 13, 15. Nonetheless, HK failed to
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assert Plaintiff’s claim to ICM stock by the November 1, 2016 deadline for creditors of the
Estate. FAC, ¶¶ 31, 50. Kadah Aff., ¶ 20, Exh. 14. Instead, HK filed an Objection to Intestate
Probate on October 28, 2016 that only disputed Mayada’s claim in her petition for letters of
adminstration that his father died intestate and that Plaintiff believed a will existed. Kadah Aff., ¶
20; Exh. 14. Critically, HK filed the Objection on behalf of Plaintiff “individually as heir at law
to decedent, Hassan Bedri Kadah and as Court appointed Adminstrator Ad Litem.” Kadah Aff., ¶
20; Exh. 14. HK signed the Objection as “Attorneys for Andrew Kadah, individually and as
Adminstrator Ad Litem for the Estate of Hassan B. Kadah.” Kadah Aff., ¶ 20; Exh. 14.
HK Researched Its Own Legal Malpractice and Billed Plaintiff
HK’s billing records from the day after Kyong Kim’s notes, September 9, 2016 reflect
that HK was concerned that they had committed legal malpractice in their representation of
Plaintiff. Kadah Aff., ¶¶ 22, 26, Exh. 15 (“call with K. Kim re potential impact of pleading H.
Kadah as ICM’s sole shareholder in NY Answer on Kadah’s claims to ICM”):
HK’s billing records from January 2017 show that HK began to research, and bill
Plaintiff, for HK’s research into its own legal malpractice in connection with Plaintiff’s pleading
identifying the Estate as 100% owner and with respect to the missed November 1, 2016 deadline
to dispute the Estate’s claim to ICM (Kadah Aff., ¶ 23, Exh. 16).
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HK’s billing entry on February 2, 2017, specifically bills .8 hours for “research
malpractice statute of limitation under NY law, creditors claims against estate (.8)”.
Kadah Aff., ¶ 24, Exh. 18. Plaintiff reviewed these invoices and called HK about these entries
for malpractice research. Kadah Aff., ¶¶ 22-29. HK informed Plaintiff that this information was
HK “work product” and he was not entitled to any information concerning these billing entries.
Kadah Aff., ¶ 29. Of course, all of the e-mails, notes, memoranda concerning these malpractice
inquiries would be discoverable once HK’s motion dismiss is denied and all must be preserved.
Had HK provided these materials to Plaintiff, Plaintiff would have included them in the First
Amended Complaint.
HK Attempted to Cover Up Its Malpractice by
Falsely Advising Plaintiff That His Shares Were Invalid
HK attempted to cover up its malpractice of advising Plaintiff to concede the Estate
owned 100% of ICM in the AAL petition by casting doubt on their own client’s (Plaintiff) claim
that he owned any ICM stock shares. This was despite Kyong Kim’s notes that it appeared
Plaintiff’s shares were valid. FAC, ¶ 27; Kadah Aff., ¶ 29. Notwithstanding that Kim identified
that Plaintiff’s shares were valid, on March 3, 2017, HK drafted a Memorandum which
concluded:
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ICM’s Articles authorize issuance of only 200 shares (with no distinction between
non-voting and voting stock). Although there is an unsigned 1999 Amendment
that provided for 20,000 shares, both non-voting and voting shares, no subsequent
amendments to the Articles were ever filed, suggesting that these certificates are
invalid.
FAC, ¶¶ 25, 27, Exh. C at p. 5 (emphasis added); Kadah Aff., ¶ 30.
In fact, HK’s conclusion that Plaintiff’s shares were invalid was incorrect. Two years
later, HK admitted its conclusion in the Mar. 3, 2017 Memorandum was incorrect to a third
party:
[On March 3, 2017] HK indicated that the stock certificates issued in 1999 and
2001 were invalid because they exceeded ‘the 200 shares authorized in ICM’s
articles of incorporation, and represent classes of equity not authorized by ICM’s
articles of incorporation. That was stated in the 3/3/17 H&K Memo, but upon
further information is factually incorrect. As reflected in our 3/7/19 H&K Memo,
we subsequently discovered that ICM’s articles of incorporation had, in fact, been
amended, and that the number and classes of shares issued in 1999 and 2001,
were, in fact, authorized. The fact that at least some of the 1999 and 2001 stock
certificates are facially valid is important for valuation purposes, because it casts
doubt on the Revised Report’s conclusion that ‘Hassan Kadah owned 100% of the
Company’s outstanding equity.’
FAC, ¶ 37, Exh. F at p. 2; HK Brief, Exh. K at p. 2): Kadah Aff., ¶ 30, 33 Exh. 18. HK’s error in
the March 3, 2017 memorandum was completely avoidable because, on August 31, 2016, HK
obtained a publicly available report from New York Department of State that showed the number
of shares claimed by Plaintiff had been authorized by ICM. FAC, ¶ 24, 33-34, 36, Exh. B;
Kadah Aff., ¶ 17, Exh. 10.
Next, in a Memorandum dated January 24, 2018, HK attempted to dissuade Plaintiff from
pursuing his claim to ICM stock any further (in order to hide its own malpractice) by wrongly
advising Plaintiff that his ICM stock shares were invalid because Plaintiff could not establish
them as a “gift” because the tax form for gifts was not filed with the IRS. Kadah Aff., ¶ 32, Exh.
19. HK advised:
11
18 of 36
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[ICM Stock] share certificates executed in 1999 and 2001 purportedly convey
shares of ICM in varying amounts to some but not all of Hassan Kadah’s children
(the “1999 and 2001 Shares”) . . . we recommend that our client, Andrew
Kadah, and his similarly-situated siblings, nieces, and nephews, not pursue this
position any further, given that the legal arguments supporting a valid gift of the
1999 and 2001 shares would almost certainly fail, and given that there is no
meaningful financial advantage in pursuing this position.
Kadah Aff., ¶ 32, Exh. 19. at p. 2.
Again, HK later acknowledged its conclusion was incorrect one year later, when HK
acknowledged in a written memorandum that there was evidence Plaintiff received the ICM
stock in consideration for his work at ICM and for patents he granted to ICM. FAC, ¶ 36, Exh. E,
p. 2)(“there is also some evidence . . . the transfers were not gratuitous, but rather the result of
contributions of time, efforts, work product, and patents”); Kadah Aff., ¶ 33, exh. 18, pp. 2, 8..
Plaintiff’s ICM Stock Claim is Time-Barred
Following HK’s disclosure of its errors in HK’s memoranda dated March 8 and 9, 2019,
that Plaintiff’s shares “were in fact authorized,” and that there wa