Preview
FILED: NASSAU COUNTY CLERK 01/24/2020 03:38 PM INDEX NO. 616386/2019
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/24/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------------------------------- -----------------------X
ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019
REPLY AFFIRMATION
Plaintiffs,
-against-
SHAHRAM MOBASSER, MEHRAN
MALEKAN and EBRAHIM SHOKRIAN,
Defendants
---------------..------------------------ ¬--------- X
JONATHAN M. GOIDEL, ESQ., an attorney duly licensed to practice law in the courts
of the State of New York affirms the following:
1. I am a member of GOIDEL & SIEGEL, LLP, counsel for defendant MEHRAN
MALEKAN ("Malekan") in this action.
2. I submit this Reply Affirmation in further support of Malekan's pre-answer motion to
dismiss the complaint herein pursuant to CPLR §3211(a)(7), and to address
plaintiffs'
misstatements coñtained in opposition.
3. By way of brief reminder, this action was commenced by plaintiffs (Gary Rosen Esq.
and his law firm (collectively "Rosen")) after they were sued for legal malpractice by a
limited liability company defendants own (2426 Ocean Avenue, LLC ("2426")) on
account of errors Rosen made in preparing a condominium offering plan for 2426. The
malpractice action bearing Nassau County Supreme Court Index No.:617430/2019, was
initially commenced in Kings County (the location of the subject condominium) and was
recently transferred to this court pursuant to stipulation between the parties.
4. The separate, malpractice action arises out of mistakes made by Rosen in drafting an
offering plan prepared and filed by Rosen on behalf of 2426 which sponsored the
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condominium project.
5. The genesis of the malpractice action was the commencement of an investigation by the
New York State Attorney General into statements in the offering plan drafted by Rosen
about the duration of a 421-a tax abatement affecting the condominium project.
6. Annexed hereto as Exhibit A is an email from the Assistant Attorney General
conducting the subject investigation, which details the extent of the damages the
Attorney General alleges were incurred by condominium unit purchasers as a result of
the misstatements in the offering plan drafted by Rosen. Indeed, as will be proved below,
upon detecting the mistakes, the Attorney General's office called Rosen, himself, and
discussed the errors with him.
7. The Attorney General claims unit purchasers suffered damages in the amount of
$421,794 as a result of misstatements in the plan concerning the length of the tax
abatement available to condominium unit purchasers. Rosen drafted the statements in the
plan concerning the length of the tax abatement, and 2426 and itsprincipals relied upon
Rosen's advice and draftsmanship in drafting those (and all) provisions of the plan.
8. It isthe epitome of bad faith for Rosen to assert in this action that the malpractice claim
against him and his firm was commenced in bad faith and is a fraud and a sham, when
he, himself, acknowledged in an email (Exhibit B hereto) he sent to the New York City
Department of Finance that (i)on August 22, 2018 he spoke with the Assistant Attorney
General investigating the tax abatement issue about the error and (ii)on that same day
tried, unsuccessfully to resolve the inconsistency between the representation he drafted
in the offering plan and the information contained on the NYC department of finance
records upon which the duration of the tax abatement was supposed to have been
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premised.
9. Rosen's email, alone, proves there is a mistake in the provision he drafted, that he has
had firsthand knowledge of the mistake and of the Attorney General investigation, and
damages claims arising from the mistake since at least August 22, 2018 and had access
to information on the NYC Department of Finance website that would have flagged the
error before he drafted and filed the plan.
10. Simply, had Rosen checked the information on the department of finance website
BEFORE he drafted the tax abatement provisions in the plan, the mistake in the plan, the
complaint to the Attorney General, the resultant investigation and damages and penalties
would all have been avoided.
11. Instead, having failed to confirm the accuracy of the statements he drafted and instructed
the defendants herein to sign, he now, incredibly, accuses the defendants of colluding to
make false claims against him. The documents herein completely belie the claims in
Rosen's complaint.
12. Obviously, Rosen's lawsuit against his former clients, not theirs against him for
malpractice, is the one which must be dismissed.
13. Finally, itmust be noted that Rosen, as a party to this lawsuit, was required to submit an
affidavit in opposition and is not entitled to rely upon a mere affirmation as an attorney.
Accordingly, itis respectfully submitted that the court should treat Rosen's opposition as
a nullity and should treat this motion as unopposed. See Savitt v Epinard LLC, 2004
N.Y. Misc. LEXIS 3261, 2004 NY Slip Op 30366(U) (Sup. Crt., NY County, 2005)
. (Shafer, J.):
Even persons who are statutorily allowed to use affirmations bearing
their signatures alone, in lieu of and with same force and effect as
. 3 of 4
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an affidavit, cannot do so when they are party to action, although any
person who for religious or other reasons wishes to use affirmation as
alternative to a sworn statement may do so; however, to be effective,
such affirmations must be made before notary public or other authorized
official"
(Slavenburg Corp. v Opus Apparel. Inc.. 53 NY2d 799. 799.
422 N.E.2d 570. 439 N.Y.S.2d 910). Accordingly, the Court will not
consider Savitt's affirmation in support of the motion for an order
enforcing the Agreement (Pisacreta v Joseph A. Minniti. P.C.. 265 AD2d
540. 697 N.Y.S.2d 160 [attorney and his professional corporation should
not have submitted an affirmation by the attorney instead of
an affidavit in their effort to demonstrate a reasonable excuse for their
delay in answering or appearing and a meritorious defense in a legal
mhctice action against them. as the attorney was a party: thus,
the affirmation should have been disregarded in resolving the
client's motion for leave to enter a default iudgment. (Emphasis
added).
CONCLUSION
14. For the reasons set forth above, itis respectfully requested that this court dismiss this
action in its entirety as against all defendants.
Dated: New York, New York
January 24, 2020
- Esq.
onat . Goidel,
IDEL & SIEGEL, LLP
Attorneys for Defendant
45th 3rd
56 West street, FlOOr
New York, New York 10036
(212) 840-3737
To: Gary Rosen Esq.
Rosen Law, P.C.
216 Lakeville Road
Great Neck, New York 11020
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Preview
FILED: NASSAU COUNTY CLERK 01/24/2020 03:38 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/24/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------- -----------------------X ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019 REPLY AFFIRMATION Plaintiffs, -against- SHAHRAM MOBASSER, MEHRAN MALEKAN and EBRAHIM SHOKRIAN, Defendants ---------------..------------------------ ¬--------- X JONATHAN M. GOIDEL, ESQ., an attorney duly licensed to practice law in the courts of the State of New York affirms the following: 1. I am a member of GOIDEL & SIEGEL, LLP, counsel for defendant MEHRAN MALEKAN ("Malekan") in this action. 2. I submit this Reply Affirmation in further support of Malekan's pre-answer motion to dismiss the complaint herein pursuant to CPLR §3211(a)(7), and to address plaintiffs' misstatements coñtained in opposition. 3. By way of brief reminder, this action was commenced by plaintiffs (Gary Rosen Esq. and his law firm (collectively "Rosen")) after they were sued for legal malpractice by a limited liability company defendants own (2426 Ocean Avenue, LLC ("2426")) on account of errors Rosen made in preparing a condominium offering plan for 2426. The malpractice action bearing Nassau County Supreme Court Index No.:617430/2019, was initially commenced in Kings County (the location of the subject condominium) and was recently transferred to this court pursuant to stipulation between the parties. 4. The separate, malpractice action arises out of mistakes made by Rosen in drafting an offering plan prepared and filed by Rosen on behalf of 2426 which sponsored the 1 of 4 FILED: NASSAU COUNTY CLERK 01/24/2020 03:38 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/24/2020 condominium project. 5. The genesis of the malpractice action was the commencement of an investigation by the New York State Attorney General into statements in the offering plan drafted by Rosen about the duration of a 421-a tax abatement affecting the condominium project. 6. Annexed hereto as Exhibit A is an email from the Assistant Attorney General conducting the subject investigation, which details the extent of the damages the Attorney General alleges were incurred by condominium unit purchasers as a result of the misstatements in the offering plan drafted by Rosen. Indeed, as will be proved below, upon detecting the mistakes, the Attorney General's office called Rosen, himself, and discussed the errors with him. 7. The Attorney General claims unit purchasers suffered damages in the amount of $421,794 as a result of misstatements in the plan concerning the length of the tax abatement available to condominium unit purchasers. Rosen drafted the statements in the plan concerning the length of the tax abatement, and 2426 and itsprincipals relied upon Rosen's advice and draftsmanship in drafting those (and all) provisions of the plan. 8. It isthe epitome of bad faith for Rosen to assert in this action that the malpractice claim against him and his firm was commenced in bad faith and is a fraud and a sham, when he, himself, acknowledged in an email (Exhibit B hereto) he sent to the New York City Department of Finance that (i)on August 22, 2018 he spoke with the Assistant Attorney General investigating the tax abatement issue about the error and (ii)on that same day tried, unsuccessfully to resolve the inconsistency between the representation he drafted in the offering plan and the information contained on the NYC department of finance records upon which the duration of the tax abatement was supposed to have been 2 of 4 FILED: NASSAU COUNTY CLERK 01/24/2020 03:38 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/24/2020 premised. 9. Rosen's email, alone, proves there is a mistake in the provision he drafted, that he has had firsthand knowledge of the mistake and of the Attorney General investigation, and damages claims arising from the mistake since at least August 22, 2018 and had access to information on the NYC Department of Finance website that would have flagged the error before he drafted and filed the plan. 10. Simply, had Rosen checked the information on the department of finance website BEFORE he drafted the tax abatement provisions in the plan, the mistake in the plan, the complaint to the Attorney General, the resultant investigation and damages and penalties would all have been avoided. 11. Instead, having failed to confirm the accuracy of the statements he drafted and instructed the defendants herein to sign, he now, incredibly, accuses the defendants of colluding to make false claims against him. The documents herein completely belie the claims in Rosen's complaint. 12. Obviously, Rosen's lawsuit against his former clients, not theirs against him for malpractice, is the one which must be dismissed. 13. Finally, itmust be noted that Rosen, as a party to this lawsuit, was required to submit an affidavit in opposition and is not entitled to rely upon a mere affirmation as an attorney. Accordingly, itis respectfully submitted that the court should treat Rosen's opposition as a nullity and should treat this motion as unopposed. See Savitt v Epinard LLC, 2004 N.Y. Misc. LEXIS 3261, 2004 NY Slip Op 30366(U) (Sup. Crt., NY County, 2005) . (Shafer, J.): Even persons who are statutorily allowed to use affirmations bearing their signatures alone, in lieu of and with same force and effect as . 3 of 4 FILED: NASSAU COUNTY CLERK 01/24/2020 03:38 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/24/2020 an affidavit, cannot do so when they are party to action, although any person who for religious or other reasons wishes to use affirmation as alternative to a sworn statement may do so; however, to be effective, such affirmations must be made before notary public or other authorized official" (Slavenburg Corp. v Opus Apparel. Inc.. 53 NY2d 799. 799. 422 N.E.2d 570. 439 N.Y.S.2d 910). Accordingly, the Court will not consider Savitt's affirmation in support of the motion for an order enforcing the Agreement (Pisacreta v Joseph A. Minniti. P.C.. 265 AD2d 540. 697 N.Y.S.2d 160 [attorney and his professional corporation should not have submitted an affirmation by the attorney instead of an affidavit in their effort to demonstrate a reasonable excuse for their delay in answering or appearing and a meritorious defense in a legal mhctice action against them. as the attorney was a party: thus, the affirmation should have been disregarded in resolving the client's motion for leave to enter a default iudgment. (Emphasis added). CONCLUSION 14. For the reasons set forth above, itis respectfully requested that this court dismiss this action in its entirety as against all defendants. Dated: New York, New York January 24, 2020 - Esq. onat . Goidel, IDEL & SIEGEL, LLP Attorneys for Defendant 45th 3rd 56 West street, FlOOr New York, New York 10036 (212) 840-3737 To: Gary Rosen Esq. Rosen Law, P.C. 216 Lakeville Road Great Neck, New York 11020 4 of 4