Motion for Writ in Rjt Food And Restaurant Llc, Richard Bivona v. Seth Marcus| Trellis.Law

On October 02, 2023 a Motion-Secondary was filed involving a dispute between Richard Bivona, Rjt Food And Restaurant Llc, and Seth Marcus, for Torts - Other Professional Malpractice (Legal Malpractice) in the District Court of Suffolk County.

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FILED: SUFFOLK COUNTY CLERK 01/22/2024 04:33 PM INDEX NO. 624328/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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RJT FOOD AND RESTAURANT, INC. and RICHARD Index No.: 624328/2023
BIVONA,

Plaintiff(s),

– against –

SETH MARCUS, ESQ.,

Defendant(s),
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MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS

Attorneys for Defendant(s)
SETH MARCUS, ESQ.

88 Pine Street, 32nd Floor
New York, New York 10005
Tel: (212)-867-4100
Fax: (212)-867-4118
FKB File No: 313.588

Spencer A. Richards, Esq.
srichards@fkblaw.com

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .........................................................................................................III

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................3

A. BIVONA’S SALE OF RJT MEMBERSHIP INTERESTS AND
RELATED LAWSUITS FOR INTER ALIA FRAUD AND
BREACH OF FIDUCIARY DUTY. ...................................................................................3

B. DANMIK COMMENCES A FORECLOSURE ACTION
AGAINST BIVONA AND RJT ..........................................................................................5

C. RJT PETITIONS FOR BANKRUPTCY .............................................................................6

PROCEDURAL HISTORY.............................................................................................................7

LEGAL STANDARD......................................................................................................................7

A. CPLR §3211(A)(1) – DOCUMENTARY EVIDENCE ......................................................7

B. CPLR §3211(A)(3) – STANDING ......................................................................................8

C. CPLR §3211(A)(7) – FAILURE TO STATE A CAUSE OF ACTION .............................8

LEGAL ARGUMENT .....................................................................................................................9

POINT I. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION
FOR LEGAL MALPRACTICE ..............................................................................9

A. BIVONA FAILS TO ALLEGE PRIVITY TO MAINTAIN A LEGAL
MALPRACTICE CLAIM .................................................................................................10

B. ATTORNEY MARCUS WAS NOT THE PROXIMATE CAUSE
OF PLAINTIFFS’ ALLEGED DAMAGES......................................................................12

C. VIOLATIONS OF ETHICAL RULES DO NOT GIVE RISE TO
LEGAL MALPRACTICE ...........................................................................................14

D. BIVONA’S ALLEGED DAMAGES ARE NOT ASCERTAINABLE ......................16

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POINT II. RJT’S CAUSE OF ACTION FOR LEGAL MALPRCATICE IS
BARRED AS A RESULT OF THE BANKRUPTCY ACTION ..........................16

A. RJT FAILED TO LIST THE CAUSE OF ACTION ON
BANKRUPTCY ACTION SCHEDULE OF ASSETS ...............................................17

B. ANY SUPPOSED CAUSE OF ACTION ON BEHALF OF RJT
MUST BE ASSERTED BY THE CHAPTER 11 TRUSTEE .....................................18

POINT III: THE GENERAL RELEASE BARS CLAIMS ASSERTED BY
BIVONA AGAINST ATTORNEY MARCUS ...................................................19

CONCLUSION ..............................................................................................................................20

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TABLE OF AUTHORITIES

PAGE

83 Willow, LLC v. Apollo,
187 A.D.3d 563 (1st Dept 2020) ...................................................................................................16

Aglira v. Julien & Schlesinger, P.C.,
214 A.D.2d 178 N.Y.S.2d 816 (1995) ...........................................................................................10

Allegretti-Freeman v. Baltis,
205 A.D.2d 859 (3d Dept. 1994) ...................................................................................................15

Ark Bryant Park Corp. v. Bryant Park Restoration Corp.,
285 A.D.2d 143 (1st Dept. 2001) .....................................................................................................9

Arkin Kaplan LLP v. Jones,
42 A.D.3d 362 (1st Dept. 2007).....................................................................................................15

Binn v. Muchnick, Golieb & Golieb, P.C,
180 A.D.3d 598 (1st Dept. 2020)...................................................................................................11

Biondi v. Beekman Hill House Apartment Corp.,
257 A.D.2d 10 76 (1st Dept. 1999)..................................................................................................8

Booth v. 3669 Delaware, Inc.,
92 N.Y.2d 934 (1998) ...................................................................................................................19

Bronxville Knolls, Inc. v. Webster Town Center Partnership,
221 A.D.2d 248 (1st Dept. 1995) .....................................................................................................7

Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V.,
17 N.Y.3d 269 (2011) ....................................................................................................................19

Chartschlaa v. Nationwide Mut. Ins. Co.,
538 F.3d 116 (2d Cir. 2008) ..........................................................................................................18

Dong Wook Park v. Michael Parke Dori Group, Inc.,
12 Misc. 3d 1182(A) (Sup. Ct. Nassau Co. 2006) ...........................................................................8

iii

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Doscher v. Meyer, 177 A.D.
3d 697 (1st Dept. 2019) .................................................................................................................15

Dynamics Corp. of Am. v. Marine Midland Bank-New York,
69 N.Y.2d 191, 505 N.E.2d 601 (1987) .........................................................................................17

Fed. Ins. Co. v. N. Am. Specialty Ins. Co.,
47 A.D.3d 52, 847 N.Y.S.2d 7 (2007) .....................................................................................11, 12

Ferguson v. Hauser,
156 A.D.3d 425 (1st Dept. 2017)...................................................................................................16

Fletcher v. Boies, Schiller & Flexner LLP,
140 A.D.3d 587, 35 N.Y.S.3d 28 (2016) .......................................................................................14

Fontanetta v. John Doe
1, 73 AD3d 78, 84-85 (2d Dept. 2010) ............................................................................................8

Goshen v. Mutual Life Insurance Company of New York,
98 N.Y.2d 314 (2002) ......................................................................................................................8

Guggenheim v. Ginzburg,
43 N.Y.2d 268 (1977) ......................................................................................................................9

IGEN, Inc. v. White,
250 A.D.2d 463 (1st Dept. 1998) ..................................................................................................16

Kahlon v. DeSantis,
182 A.D.3d 588, 120 N.Y.S.3d 817 (2020) ...................................................................................12

Katsoris v. Bodnar & Milone, LLP,
186 A.D.3d 1504, 131 N.Y.S.3d 89 (2020) ...................................................................................12

Malarkey v. Piel,
7 A.D.3d 681 (2d Dept. 2004) ..........................................................................................................7

Mangini v. McClurg,
14 NY. 2d. 556, 562 (1969) ...........................................................................................................19

MBIA Ins. Corp. v. Royal Bank of Canada,

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28 Misc.3d 1225(A) (N.Y. Sup. 2010) ............................................................................................9

Mergler v. Crystal Props. Assocs.,
179 AD2d 177 (1st Dept. 1992) ....................................................................................................19

Meyer v. Gunta,
262 A.D.2d 463 (2d Dept. 1999) .....................................................................................................9

Potruch & Daab, LLC v Abraham,
97 AD3d 646 (2d Dept. 2012) ......................................................................................................17

Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood,
80 N.Y.2d 377 N.E.2d 318 (1992) .................................................................................................11

Ritchie Cap. Mgmt., L.L.C. v. Gen. Elec. Cap. Corp.,
121 F. Supp. 3d 321 (S.D.N.Y. 2015), aff'd 821 F.3d 349 (2d Cir. 2016) ...................................18

Santori v. Met Life, 11 A.D.3d 597 N.Y.S.2d 117 (2004) .............................................................17

Seaman v. Schulte Roth & Zabel LLP,
176 A.D.3d 538 (1st Dept. 2019)...................................................................................................10

See Robinson v. Robinson,
303 A.D.2d 234 (1st Dept. 2003).....................................................................................................8

Silverman v. Eccleston L., LLC,
208 A.D.3d 705, 173 N.Y.S.3d 78 (2022) ...........................................................................9, 10, 12

Skillgames, LLC v. Brody,
1 A.D.3d 247 (1st Dept. 2003).........................................................................................................8

Sumo Container Station, Inc. v. Evans, Orr, Pacelli, Norton & Laffan, P.C.,
278 A.D.2d 169 N.Y.S.2d 223, 224 (1st Dept. 2000)....................................................................14

Sutch v. Sutch-Lenz,
129 A.D.3d 1137 (3d Dept. 2015) .................................................................................................10

Taylor v. Pulvers, Pulvers, Thompson & Kuttner, P.C.,
1 A.D.3d 128 (1st Dept. 2003).........................................................................................................9

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Weitz v. Lewin,
251 A.D.2d 402, 675 N.Y.S.2d 544 (2d Dept. 1998) ...................................................................17

Whelan v. Longo,
23 A.D.3d 459 (2d. Dept. 2005) ....................................................................................................17

Wilhelmina Models, Inc. v. Fleisher,
19 A.D.3d 267 (1st Dept. 2005).......................................................................................................8

Zanett Lombardier, Ltd., v. Maslow,
29 A.D.3d 495 (1st Dept. 2006).......................................................................................................8

Zarin v. Reid & Priest,
184 A.D.2d 385 (1st Dept. 1992)...................................................................................................10

STATUTES

11 U.S.C. § 541(a)(1).....................................................................................................................18

CPLR §§ 3211(a)(1) .....................................................................................................................1,7

CPLR §§ 3211 (a)(3) .......................................................................................................................1

CPLR §3211(a)(5) ...........................................................................................................................1

CPLR §3211(a)(7) .......................................................................................................................1, 8

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This Memorandum of Law is submitted in support of Defendant’s, Seth Marcus, Esq.

(“Attorney Marcus”) motion to dismiss Plaintiffs RJT Food and Restaurant (“RJT”) (an entity

currently in bankruptcy) and Richard Bivona (“Bivona”) (collectively “Plaintiffs”) Amended

Complaint pursuant to CPLR §§ 3211(a)(1), (a)(3), (a)(5) and (a)(7).

PRELIMINARY STATEMENT

The Amended Complaint in the instant legal malpractice action was filed by Bivona and

the bankrupt RJT, an entity that it is alleged that Bivona currently owns a 100% membership

interest, notwithstanding that Bivona was never a client of Attorney Marcus and lacks standing to

act on behalf of RJT. The Complaint is best understood as attempted retaliation by Bivona for

Attorney Marcus’ successful representation of 1999 Deerfield LLC (“Deerfield”) and Anthony

Vacarro (“Vacarro”) in a separate action before this Court for fraud and breach of fiduciary duty

relating to Bivona’s earlier sale of a 50% membership interest in RJT to Deerfield, and in which

case Bivona was among the defendants (the “Deerfield Action”). 1 The Amended Complaint must

be dismissed pursuant to CPLR §§ 3211(a)(1), (a)(3), (a)(5) and (a)(7) for the following reasons:

(1) Bivona fails to allege privity for the existence of an attorney-client relationship; (2) Attorney

Marcus was not the proximate cause of any damages to Plaintiffs; (3) the Amended Complaint

fails to plead actual ascertainable damages; (4) supposed violations of ethical rules as a matter of

law do not give rise to legal malpractice; (5) RJT cannot assert the present action because it failed

to list the present action against Attorney Marcus on its schedule of assets; (6) Bivona lacks

standing to act on behalf of RJT because a Chapter 11 Trustee has been appointed to act on behalf

of RJT; and (7) Bivona released Attorney Marcus when he settled the Deerfield action.

11
1999 Deerfield LLC et al v. Bivona et al, Suffolk County Supreme Court, Index No.: 612231/2020. The attorney
who filed the present action on behalf of Bivona and RJT, Stephen Grossman, Esq., is also a defendant in that action
and is alleged to have committed fraud relating to the sale of RJT membership interests. Claims against Mr.
Grossman are still pending.

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The instant legal malpractice action is the latest case related to Bivona’s sale of

membership interests in RJT and the property located at 1999 Deerfield Lane, Watermill, New

York (the “Property”). There have been two other cases and a foreclosure action in which Bivona

has been a defendant. The allegations of the Amended Complaint are focused on supposed

misconduct relating to a foreclosure action (the “Foreclosure Action”) commenced by Danmik

Investors LLC (“Danmik”). 2

On September 15, 2015, prior to Bivona’s sale of membership interests in RJT, RJT entered

into a note and mortgage secured by the Property from Danmik. RJT defaulted on the loan on

September 19, 2016 and Danmik eventually commenced a foreclosure action against Plaintiffs on

September 1, 2021. Plaintiffs defaulted in the foreclosure action, the court entered a final judgment

of Foreclosure and Sale for Plaintiffs to pay $1.8 million to Danmik on September 6, 2022. Bivona

subsequently, on February 8, 2023 (and without the knowledge or consent of RJT’s then owners)

caused RJT to petition for Chapter 11 bankruptcy (the “Bankruptcy Action”). Ignoring that Bivona,

as the then sole member of RJT, executed a promissory note with Danmik in the amount of

$900,000 and failed to pay the balance due on the mortgage when the mortgage matured, Plaintiffs

claim now that but for Attorney Marcus’ filing of a Notice of Appearance in Danmik’s Foreclosure

Action, Plaintiffs would not have suffered any loss.

Specifically, Plaintiffs allege that Attorney Marcus somehow intentionally caused the

default of Plaintiffs by filing a Notice of Appearance on behalf of RJT in the Foreclosure Action.

However, Plaintiffs’ allegations ignore that Attorney Marcus never represented Bivona, that

Attorney Marcus filed the Notice of Appearance on behalf of RJT to protect Deerfield’s and MRS

2
Danmik Investors LLC v. RJT Food and Restaurant LLC et al, Suffolk County Supreme Court Index
No.:616938/2021.

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Property, Inc.’s (“MRS”) 3 interests only after Bivona failed to respond to Danmik’s motion for

default, that Bivona has no standing to assert a cause of action on behalf of RJT because of the

Bankruptcy Action and that Plaintiffs are estopped from maintaining this action for failure to list

the supposed claims in RJT’s Bankruptcy Petition. Finally, Bivona released Attorney Marcus from

claims arising from the civil action Attorney Marcus commenced on behalf of Deerfield and

Vacarro. Accordingly, Plaintiffs’ Amended Complaint fails to allege a cognizable cause of action

against Attorney Marcus and is ripe for dismissal on the pleadings.

STATEMENT OF FACTS

A. Bivona’s Sale of RJT Membership Interests and Related Lawsuits for Inter Alia
Fraud and Breach of Fiduciary Duty.

In the Deerfield Action, Attorney Marcus represented Deerfield and Vacarro in an action

against Plaintiff Bivona stemming from Plaintiff Bivona’s fraud and breach of fiduciary duty

related to his sale of Plaintiff RJT Food and Restaurant Inc to Deerfield. See Ex. A (“Deerfield

Complaint”) Bivona sold 50% and managing control of RJT to Vacarro’s wholly owned entity

Deerfield. See Ex. A. At the time of the sale, RJT’s only asset was the property located at 1999

Deerfield, Water Mill, New York (“the Property”). See Ex. A.

While Plaintiff Bivona was selling a controlling stake in RJT to Vacarro and Deerfield,

Bivona was additionally selling a majority stake in RJT to a third-party, MRS. See Ex. A. On July

29, 2020, MRS commenced a suit against RJT, Bivona, Heather Bivona, Ivan Popkin, Alan

Spiegel, and Stephen Grossman, who represents Plaintiffs as counsel in the instant action, alleging

that Bivona, with the assistance of the other named Defendants, fraudulently induced MRS to

3
MRS is the other en�ty to which Bivona sold membership interests in RJT. MRS sued Bivona in this Court for
causes of ac�on related to that sale in; MRS Property Investments, Inc v. Richard Bivona et al, Suﬀolk County
Supreme Court, Index No.: 606697/2020.

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purchase the Property (“MRS Action”). See Ex. B (“MRS Complaint”). Specifically, the MRS

Complaint alleges that Plaintiff Bivona stated that the Property would generate rental income,

however Bivona moved into the Property with his family and engaged in threatening behavior

when MRS attempted to rent the Property. See Ex. B. at ¶¶ 40-44, 55-59.

On September 3, 2020, Attorney Marcus filed the Deerfield Complaint on behalf of

Deerfield and Vacarro against Bivona, Heather Bivona, Arnold Spiegel, Stephen Grossman, and

MRS, alleging fraud, breach of contract, breach of fiduciary duty, and negligent misrepresentation.

Specifically, the Deerfield Complaint alleges that at no time when Vacarro and Bivona made the

original agreement, nor the subsequent addendum regarding the sale of RJT to Vacarro, did Bivona

advise Vacarro that 51% of RJT was sold to MRS. See Ex. A ¶¶ 35-39.

On or around May 19, 2023, Plaintiff Bivona agreed to pay MRS and Deerfield a combined

$650,000 each and settled both the Deerfield Action and the MRS Action and Deerfield and MRS

sold, released and transferred their interests in RJT back to Bivona. See Ex. C “General Release.”

Under the General Release, Bivona also agreed to not commence any actions against Attorney

Marcus arising out of the facts of the MRS or Deerfield Actions:

The Settling Defendants do release and forever discharge Plaintiffs and their
subsidiaries, affiliates, officers, directors, shareholders, partners, attorneys,
trustees, predecessors, successors, representatives, insurers, assignees, agents,
employees, administrators, and all persons acting by, through or in any way on
behalf of Plaintiffs of and from any and all claims, counterclaims, debts, defenses,
liabilities, costs, attorney's fees, actions, suits at law or equity, demands, contracts,
expenses, damages, whether general, specific or punitive, exemplary, contractual
or extra-contractual, and causes of action of any kind or nature based upon any
theory in connection with the Action which Settling Defendants may now have or
claim to have against Plaintiffs, including without limitation all claims, defenses or
causes of action which in any way, directly or indirectly, or in any other way arises
from or are connected with or which could have been asserted in connection with
the Action, and any claim, defense, cause of action, damages, promises or demands
which could have been asserted in the Action, which may exist from the beginning
of time to the date of this Stipulation including but not limited to proper standing,
adequacy of notices, compliance with state or federal law or any other related

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defense. This full and final release shall cover and shall include and does cover and
does include any and all known or future damages not now known to any of the
Parties hereto, but which may later develop or be discovered, including the effects
and consequences thereof, and including all causes of action therefore which arise
out of the same facts as were alleged or could have been alleged in the Action. Id.

B. Danmik Commences a Foreclosure Action Against Bivona and RJT

On September 1, 2021, Danmik initiated the Foreclosure Action against RJT. See Ex. D

(“Foreclosure Complaint”). On September 18, 2015, Bivona, as the sole member of RJT, executed

a promissory note with Danmik in the amount of $900,000. See Ex. D ¶5. The note was secured

by a mortgage on the Property. Danmik alleges in the complaint that Plaintiff failed to pay the

balance due on the mortgage when the mortgage matured on September 19, 2016. See Ex. D ¶12.

Danmik served RJT on September 14, 2021. See Ex. E (“RJT Affidavit of Service”).

Danmik served Bivona on September 21, 2021. See Ex. F (“Bivona Affidavit of Service”). On

January 19, 2022, Danmik filed a motion for a proposed order holding Bivona and RJT in default

as neither Bivona nor RJT took any action in response to being served with the Foreclosure Action

prior to the expiration of the time to respond. See Ex. G (“Motion for Order of Reference”).

On February 3, 2022, Attorney Marcus filed a Notice of Appearance on behalf of RJT in

the Foreclosure Action. See Ex. H (“Attorney Marcus Notice of Appearance”). On February 28,

2022, the Hon. Paul M. Hensley, A.J.S.C. (“Justice Hensley) rendered a Decision and Order

holding RJT in default. See Ex. I (“Order of Reference”). On June 17, 2022, RJT and Bivona filed

a cross-motion seeking, in part, to vacate the Notice of Appearance filed by Attorney Marcus,

vacate the Order of Reference, and allow Bivona time to answer the Foreclosure Complaint. See

Ex. J (“Cross-Motion”). In an affirmation in opposition to RJT and Bivona’s Cross-Motion,

Attorney Marcus stated that he was given authority by both MRS and Deerfield to appear on behalf

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of RJT in the Foreclosure Action. See Ex. K. (“Attorney Marcus Affirmation in Opposition to

Cross Motion”).

On September 1, 2022, Justice Hensley entered a short form order, dismissing with

Danmik’s consent, Bivona from the foreclosure action, along with denying all of the relief

requested in Cross-Motion because Bivona was irrelevant to a sale of the Property and because

Bivona “ha[s] and had no claim to the premises” as evidenced by the preliminary injunctions

entered in the MRS Action and Deerfield Actions, which prevented Bivona from entering the

Property. See Ex. L at 2 of 3 (“Short Form Order”). On September 6, 2022, Justice Hensley entered

an order determining that the principal balance due on the note was $1,835,766.81 and ordered a

foreclosure sale of the Property See Ex. M (“Judgment of Foreclosure and Sale”).

C. RJT Petitions for Bankruptcy

On February 8, 2023, RJT filed a voluntary petition at Bivona’s direction for Chapter 11

Bankruptcy (“Bankruptcy Action”) See Ex. N (“Bankruptcy Petition”) On February 22, 2023, RJT

submitted the Summary of Assets and Liabilities for the Bankruptcy Action. See Ex. O (“Asset

List”). Notably, RJT does not list the instant cause of action against Attorney Marcus on the Asset

List. See Ex. O. On April 19, 2023, the United States Trustee filed a motion to appoint a Chapter

11 Trustee to oversee RJT, which was granted on May 24, 2023. See Ex. P (“Trustee Order”).

Deerfield and Vacarro had on April 18, 2023 appeared in the Bankruptcy Action to object to

conversion of the case to Chapter 7 and seek an evidentiary hearing to determine that Bivona was

not authorized to file the Bankruptcy Petition on behalf of RJT. See Ex Q (“Deerfield Limited

Objection to United States Trustee’s Motion”). Following settlement of the Deerfield Action on

May 19, 2023, and as a condition of that settlement, Deerfield and Vacarro withdrew their

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objections and application in the Bankruptcy Action. On May 24, 2023, the United States Trustee

appointed Salvatore LaMonica as Trustee. See Ex. R (“Appointment of Salvatore LaMonica”).

PROCEDURAL HISTORY

On October 2, 2023, Plaintiffs initiated the instant action by filing the Summons with

Notice. See Ex. S (“Summons with Notice”). On October 13, 2023, Attorney Marcus was served

with the summons. On October 20, 2023, Attorney Marcus filed a demand for the complaint. See

Ex. T (“Demand for Complaint”).

Plaintiff filed the instant complaint on December 4, 2023. See Ex. U (“Complaint”). The

Complaint alleges three causes of action for legal malpractice. Specifically, the Complaint alleges

that (1) Attorney Marcus’s allegedly negligent filing of the Notice of Appearance in the Bankruptcy

Action caused a default judgment to be entered against RJT and the Property to be sold; (2)

Attorney Marcus had a conflict of interest when representing RJT; and (3) Attorney Marcus

allegedly intentionally caused the default of RJT to create benefit for himself. Ex. U ¶¶ 5-16.

On December 22, 2023, Plaintiff amended the Complaint. The Amended Complaint

additionally requests that Attorney Marcus be subject to sanctions due to his alleged conduct in

this matter. See Ex. V (“Amended Complaint”).

LEGAL STANDARD

A. CPLR §3211(a)(1) – Documentary Evidence

To prevail on a defense pursuant to CPLR §3211(a)(1) founded upon documentary

evidence, the defendant must “conclusively establish a defense to the asserted claims as a matter

of law.” See Malarkey v. Piel, 7 A.D.3d 681 (2d Dept. 2004); Bronxville Knolls, Inc. v. Webster

Town Center Partnership, 221 A.D.2d 248 (1st Dept. 1995). A motion to dismiss, pursuant to

CPLR §3211(a)(1), is appropriately granted where the documentary evidence utterly refutes a

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plaintiff’s factual allegations. See Zanett Lombardier, Ltd., v. Maslow, 29 A.D.3d 495 (1st Dept.

2006); Goshen v. Mutual Life Insurance Company of New York, 98 N.Y.2d 314, 326 (2002). To

qualify as documentary evidence, it must be unambiguous, authentic, and undeniable. Granada

Condominium III Assn. v Palomino, 78 AD3d 996, 96-97 (2d Dept. 2010). “[J]udicial records...and

any other papers, the contents of which are essentially undeniable, would qualify as documentary

evidence in the proper case.” Fontanetta v. John Doe 1, 73 AD3d 78, 84-85 (2d Dept. 2010).

B. CPLR §3211(a)(3) – Standing

CPLR § 3211(a)(3) provides that “[a] party may move for judgment dismissing one or more

causes of action asserted against him on the ground that…(3) the party asserting the cause of action

has not legal capacity to sue.” Capacity to sue relates to whether the party has the legal ability to

bring the cause of action and not whether plaintiff is entitled to or is the proper party to seek the

relief requested. Dong Wook Park v. Michael Parke Dori Group, Inc., 12 Misc. 3d 1182(A) (Sup.

Ct. Nassau Co. 2006); see also Siegel New York Practice 4th § 261.

C. CPLR §3211(a)(7) – Failure to State a Cause of Action

Pursuant to CPLR §3211(a)(7), a defendant may move to dismiss one or more causes of

action for failure to state a cause of action. Thus, it is proper for the court to grant dismissal where

a complaint is premised upon “legal conclusions that are unsupportable based upon the undisputed

facts.” See Robinson v. Robinson, 303 A.D.2d 234, 235 (1st Dept. 2003); see also Skillgames, LLC

v. Brody, 1 A.D.3d 247 (1st Dept. 2003). Moreover, it is well-settled that extrinsic evidence,

including affidavits, can be considered in order to negate factual allegations of the complaint. See

Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267 (1st Dept. 2005) citing Biondi v. Beekman Hill

House Apartment Corp., 257 A.D.2d 10 76 (1st Dept. 1999).

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New York courts have held that if a defendant uses affidavits on a motion to dismiss, the

plaintiff must not only show that a claim is stated as a matter of pleading, but that the plaintiff in

fact has a claim. See Meyer v. Gunta, 262 A.D.2d 463 (2d Dept. 1999); see also MBIA Ins. Corp.

v. Royal Bank of Canada, 28 Misc.3d 1225(A), 2010 N.Y. Slip Op. 51490(U) (N.Y. Sup. 2010)

citing Taylor v. Pulvers, Pulvers, Thompson & Kuttner, P.C., 1 A.D.3d 128 (1st Dept. 2003)

(affidavits submitted on law firm’s motion to dismiss a client’s legal malpractice action were

properly considered, since affidavits conclusively established that client had no cause of action).

Here, Plaintiffs’ allegations consist of bare legal conclusions, as well as factual claims,

which on their face are either inherently incredible; or flatly contradicted by documentary

evidence. Accordingly, it is well settled that they are not entitled to such “favorable” consideration.

See Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143 (1st Dept. 2001).

“When evidentiary material is considered, the criterion is whether the proponent of the pleading

has a cause of action, not whether he has stated one.” See Guggenheim v. Ginzburg, 43 N.Y.2d 268,

275 (1977).

LEGAL ARGUMENT

POINT I

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR LEGAL
MALPRACTICE

To state a claim for legal malpractice, a plaintiff must allege (1) the existence of an attorney

client relationship between the parties; (2) negligence by the attorney in the plaintiff’s legal

representation; (3) proximate cause between the attorney-defendant’s negligence and plaintiff’s

loss, and (4) actual and ascertainable damages. Silverman v. Eccleston L., LLC, 208 A.D.3d 705,

173 N.Y.S.3d 78 (2022) (Affirming grant of defendant’s pre-answer motion to dismiss legal

malpractice claim because Plaintiff failed to allege that Defendant was negligent or the proximate

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cause of Plaintiff’s damages). In the absence of the proper pleading and proof of one of these

elements, a cause of action for legal malpractice must fail. See Zarin v. Reid & Priest, 184 A.D.2d

385 (1st Dept. 1992). Conclusory allegations of damages or injuries predicated on speculation

cannot suffice for a malpractice action. See Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 (2d

Dept 2012).

Here, Plaintiffs fail to allege privity, proximate cause, and damages to support a legal

malpractice cause of action against Attorney Marcus. Accordingly, Plaintiffs’ legal malpractice

claim is ripe for dismissal.

A. Bivona Fails to Allege Privity to Maintain a Legal Malpractice Claim

First, Bivona fails to state a claim for legal malpractice because Bivona does not have the

requisite privity for an attorney-client relationship with Attorney Marcus to assert a legal

malpractice cause of action. The existence of an attorney-client relationship is a necessary element

of any legal malpractice claim. Silverman, 173 N.Y.S.3d at 80. An attorney-client relationship is

formed where there is a mutual understanding that the attorney will render legal services on the

client’s behalf. See Seaman v. Schulte Roth & Zabel LLP, 176 A.D.3d 538 (1st Dept. 2019)

(Affirming dismissal of Plaintiff’s legal malpractice claim because no attorney-client relationship

existed between the plaintiff and defendant attorney).

Outside of circumstances involving fraud, collusion, or malicious acts, the attorney

generally owes no duty of care to a non-client. Aglira v. Julien & Schlesinger, P.C., 214 A.D.2d

178, 631 N.Y.S.2d 816 (1995) (dismissing plaintiff’s cause of action for legal malpractice because

counsel for third-party defendants did not owe duty to third-party defendants’ adversary); Sutch v.

Sutch-Lenz, 129 A.D.3d 1137 (3d Dept. 2015)(affirming pre-answer CPLR 3211 dismissal for

failure to allege strict privity with attorney). Limiting legal malpractice claims to attorney-client

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relationship serves the purpose of preventing the attorney from being required to weigh the

competing interests of clients and non-clients during the course of representation. Fed. Ins. Co. v.

N. Am. Specialty Ins. Co., 47 A.D.3d 52, 847 N.Y.S.2d 7 (2007) ( dismissing cause of action for

legal malpractice because plaintiffs failed to allege privity or near privity with the defendant

attorney).

While privity is a requirement to hold an attorney liable for legal malpractice, an attorney

may be held liable by a party with whom the relationship is “so close as to approach that of privity.”

Binn v. Muchnick, Golieb & Golieb, P.C, 180 A.D.3d 598 (1st Dept. 2020). The factors the Court

considers when determining whether a relationship is near enough to privity are “(i) there is an

awareness by the maker of a statement that is to be used for a particular purpose (ii) reliance by a

known party in furtherance of that purpose, and (iii) some conduct by the maker of the statement

linking it to the relying party and evincing its understanding of that reliance.” Prudential Ins. Co.

of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 605 N.E.2d 318 (1992).

Here, Bivona fails to allege privity with Attorney Marcus because Attorney Marcus only

appeared on behalf of RJT in the Foreclosure Action. Attorney Marcus did not represent Bivona.

See Ex. H. The only connection between Bivona and Attorney Marcus is that Bivona was an

adverse party to Attorney Marcus’ clients in the Deerfield Action. See Ex. A.

In addition to there being no near privity between Attorney Marcus and Bivona, the

Amended Complaint fails to allege any statement made by Attorney Marcus, which was intended

for Bivona to rely on. Moreover, the Amended Complaint fails to allege that Bivona actually relied

on a statement or conduct by Attorney Marcus. The Amended Complaint merely alleges that

Attorney Marcus submitted a Notice of Appearance on behalf of RJT in the Foreclosure Action.

See Ex. U ¶10.

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Permitting Bivona to maintain a legal malpractice claim against Attorney Marcus would

undermine the purpose of requiring privity or near privity articulated in Fed. Ins. Co. v. N. Am.

Specialty Ins. Co., 47 A.D.3d 52, 847 N.Y.S.2d 7 (2007). Attorney Marcus should not, and does

not, have to weigh any duty to a non-client and adversary, when representing the interests of

Vacarro and Deerfield.

Accordingly, it is respectfully requested that this Court dismiss the causes of action for

legal malpractice asserted by Bivona because Bivona does not have the requisite privity to assert

a legal malpractice claim against Attorney Marcus.

B. Attorney Marcus Was Not The Proximate Cause Of Plaintiffs’ Alleged Damages

Second, Plaintiffs’ Amended Complaint fails to state a claim for legal malpractice as a

matter of law because Attorney Marcus was not the proximate cause of Plaintiffs’ alleged losses.

To maintain a claim for legal malpractice, a plaintiff must allege proximate cause between the

attorney-defendant’s negligence and plaintiff's loss, Kahlon v. DeSantis, 182 A.D.3d 588, 120

N.Y.S.3d 817 (2020). (Affirming pre-answer dismissal because plaintiff failed to allege plaintiff

would have been successful in underlying action but-for defendant attorney’s conduct”

An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if ‘but for’

the attorney's negligence ‘the plaintiff would have succeeded on the merits of the underlying

action.” Silverman v. Eccleston L., LLC, 208 A.D.3d 705, 173 N.Y.S.3d 78 (2022) (Affirming grant

of defendant’s pre-answer motion to dismiss legal malpractice claim because Plaintiff failed to

allege that Defendant was negligent or the proximate cause of Plaintiff’s damages). Thus, a

plaintiff bringing a legal malpractice action must successfully plead that plaintiff would not have

suffered any damages in the underlying action but for the attorneys’ conduct. Katsoris v. Bodnar

Case Info

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Paul M Hensley Track Judge’s New Case

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January 22, 2024

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October 02, 2023

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Motion-Secondary: Rjt Food And Restaurant Llc, Richard Bivona v. Seth Marcus

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