Scott v Leventhal

2024 NY Slip Op 31543(U)

April 30, 2024

Supreme Court, New York County

Docket Number: Index No. 656211/2017

Judge: Debra A. James

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 429 

INDEX NO. 656211/2017 

RECEIVED NYSCEF: 04/30/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DEBRA A. JAMES 

Justice 

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PATRICIA SCOTT, AS EXECUTRIX OF THE ESTATE OF 

PATRICK FLEMING, 

Plaintiff, 

- V -

JASON LEVENTHAL and LEVENTHAL LAW GROUP, P.C., 

Defendants. 

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PART 59 

INDEX NO. 656211/2017 

MOTION DATE 08/10/2022 

MOTION SEQ. NO. 017 018 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 017) 368, 369, 370, 371, 

372,373,374,375,376,377,378,379,380,381,382,383,384,385,386,388,390,391,392,393,394, 

395,396,397,398,399,400 

were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) 

The following e-filed documents, listed by NYSCEF document number (Motion 018) 341, 342, 343, 344, 

345,346,347,348,349,350,351,352,353,354,355,356,357,358,359,360,361,362,363,364,365, 

366,367,389,401,402,403,404,405,406,407,408,409,410,411,412,413,414,415,416,417,418, 

419,420 

were read on this motion to/for JUDGMENT-SUMMARY 

ORDER 

Upon the foregoing documents, it is 

ORDERED that the motion of plaintiff for summary judgment 

in her favor (motion sequence number 017) is DENIED; and it is 

further 

ORDERED that to the extent that it seeks to dismiss the first 

(breach of contract) and third (violation of Judiciary Law§ 487) 

causes of action of the Third Amended Complaint, the motion of 

defendants for summary judgment dismissing the complaint (motion 

sequence number 018) is GRANTED; and it is further 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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NYSCEF DOC. NO. 429 

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RECEIVED NYSCEF: 04/30/2024 

ORDERED that to the extent that it seeks to dismiss the 

second (breach of fiduciary duty sounding in legal malpractice) 

and third (fraud) causes of action of the Third Amended 

Complaint, the motion of defendants to dismiss the complaint is 

DENIED; and it is further 

ORDERED that counsel shall confer with the Clerk of Trial 

Assignment Part 40 to secure a mediation and/or trial date. 

DECISION 

This court previously dismissed plaintiff's causes of 

action for breach of contract and breach of fiduciary duty, 

holding that such causes of action were duplicative of 

plaintiff's legal malpractice cause of action. See NYSCEF 

Document Number 286. Such holdings are law of the case. See 

Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d 

78, 79 (1 st Dept 1995) 

Plaintiff's recasting the Third Amended Complaint to remove 

the legal malpractice cause of action and substitute and 

reassert another breach of contract claim (first cause of 

action) does not overcome such prior holding with respect to the 

breach of contract claim, as plaintiff has still not come 

forward with prima facie proof of any breach of contract by 

defendants, given, as found earlier, the provision of the 

retainer agreement dated September 8, 2015, that defendants 

could withdraw as counsel at any time before any lawsuit was 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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INDEX NO. 656211/2017 

NYSCEF DOC. NO. 429 RECEIVED NYSCEF: 04/30/2024 

commenced, and, in fact defendants never commenced a lawsuit on 

behalf of plaintiff's decedent. Nor does plaintiff's assertion 

about defendants' alleged breach of the implied covenant of good 

faith and fair dealing rescue her breach of contract cause of 

action. 

With respect to the claim of breach of fiduciary duty 

(second cause of action), such cause of action sounds in legal 

malpractice, and such legal practice claim was not previously 

dismissed by this court. In that regard, legal precedent holds 

that 

"In the attorney liability context, the breach of 

fiduciary duty claim is governed by the same standard 

as a legal malpractice claim. Accordingly, to recover 

damages against an attorney arising out of the breach 

of the attorney's fiduciary duty, plaintiff must 

establish the 'but for' element of malpractice." 

Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75-76 (1 st 

Dept 2018) (citations omitted). Plaintiff comes forward with 

prima facie evidence that "but for" the failure of defendants to 

commence a lawsuit within the statute of limitations for battery 

(one year after the alleged August 15, 2016 battery) or to 

inform her of such deadline so that she might retain new counsel 

to commence a timely action, she would have recovered damages 

for battery in a lawsuit asserting that City Correction 

Department employees intentionally assaulted and battered her 

decedent son, causing injury to his testicles. 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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Specifically, 

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NYSCEF DOC. NO. 429 

INDEX NO. 656211/2017 

RECEIVED NYSCEF: 04/30/2024 

plaintiff submits the records of Bellevue Hospital Center that 

states that plaintiff's decedent son was admitted to the 

hospital on August 16, 2015, with complaints that [prior to 

admission/11 AM, the day before] defendants' correction officers 

"kicked [him] in the balls 3 times", [and that] "patient noticed 

significant swelling ('swollen like a watermelon')" and that 

examination in hospital revealed "trauma to scrotum, now 

swelling and tenderness". As such evidence raises issues of 

fact with respect to plaintiff's claim of breach of fiduciary 

duty/legal malpractice, neither summary judgment dismissing such 

cause of action against defendants nor partial summary judgment 

of liability in favor of plaintiff is warranted. See Johnson v 

Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept 

1997) . 

As to plaintiff's claim that defendants violated Judiciary 

Law§ 487(1), this court concurs with defendants that such claim 

lacks merit as plaintiff does not allege that defendants' 

alleged "deceit or collusion" occurred in the "context of "an 

action pending in a court"". Bill Birds, Inc v Stein Law Firm, 

PC ( 3 5 NY 3 d 1 7 3 , 1 7 8 [ 2 0 2 0 ] ) . Instead plaintiff asserts 

misleading or false advice preceding defendants' withdrawal from 

representation, but not in the context of "an action pending in 

a court", which, the Court of Appeals in Bill Birds, Inc, ibid, 

found to be insufficient to state a claim cognizable as a 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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NYSCEF DOC. NO. 429 

violation of Judiciary Law§ 487. 

INDEX NO. 656211/2017 

RECEIVED NYSCEF: 04/30/2024 

Moreover, contrary to 

plaintiff's argument, any alleged misrepresentations made by 

defendants in the instant action relate to credibility herein, 

as, Judiciary Law§ 487 pertains to representation of a client, 

and it is beyond peradventure that defendants no longer 

represent plaintiff. 

With respect to the claim of fraud (fourth cause of action) 

of the Third Amended Complaint, plaintiff fails to connect the 

alleged bribes of City Correction Department employees at Rikers 

Prison, which were the subject of New York Times articles of June 

2014, and May and September 16, 2016, to her assertions that 

defendants accepted a bribe from Correction Department employees 

in exchange for not commencing a lawsuit on her son's behalf, 

sometime after they entered into a retainer with her son on 

September 8, 2015. See Pramer S. C .A. v Abaplus Inter Corp, 7 6 

AD3d 89, 94 (1 st Dept 2010). Moreover, such newspaper articles are 

inadmissible hearsay. See Chong Min Mun v Soung Eun Hong, 109 

AD3d 732, 733 (1 st Dept 2013). However, given that defendants do 

not deny plaintiff's assertion (NYSCEF Document Number 369, p. 13 

[ f]) that they failed to turn over copies of bank statements 

recording their receipts for the period in question in response to 

plaintiff's discovery demands and the discovery orders of this 

court (NYSCEF Document Numbers 194 and 213), plaintiff is entitled 

to a negative inference (see Cabrera-Perez v Promesa Housing 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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NYSCEF DOC. NO. 429 

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RECEIVED NYSCEF: 04/30/2024 

Development Fund Corp, 225 AD3d 464 [1 st Dept 2024]), which coupled 

with circumstantial evidence proffered by plaintiff concerning 

defendants' motives to withdraw from representing plaintiff son, 

creates a material issue of fact as to plaintiff's claim of fraud. 

See Quality Leasing & Management Corp v American Arbitration 

Association, 245 AD2d 30 (1 st Dept 1997). Given that such evidence 

is not disposi ti ve of the claim for fraud, resolution of which 

raises issues of credibility, the court shall deny each party's 

motion for summary disposition of the fraud claim. 

On May 1, 2023, plaintiff's attorney Richard Pu, Esq., 

filed a "Notice of Change/Discharge of Attorney and Notice of 

Appearance", asserting that plaintiff would proceed prose. 

(NYSCEF Document Number 426). This court notes that such Notice 

is a nullity as plaintiff herself never consented thereto. 

Notice is without force and effect as plaintiff, counsel's 

client, did not sign such form or acknowledge her signature 

before a notary public, as required pursuant to CPLR §321(b) 

See Garafola v Mayoka, 151 AD3d 1018 (2d Dept 2017). Instead 

Such 

such the form appears to have been filled out by counsel. Upon 

filing by plaintiff's counsel of a Notice of Substitution, which 

is duly signed and acknowledged by his client before a notary 

public, coupled with proof of service by overnight mail at her 

last known address of a signed copy thereof as well as a copy of 

her legal file on plaintiff from Richard Pu, Esq., which proof 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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NYSCEF DOC. NO. 429 

INDEX NO. 656211/2017 

RECEIVED NYSCEF: 04 /3 0 / 2024 

Richard Pu, Esq., must post on NYSCEF, plaintiff may proceed pro 

se. Thereafter, plaintiff prose must e-mail the Clerk of IAS 

Part 59 that she wishes to proceed prose (SFCPart59Clerk@nycourts.gov ), research information about representing 

herself at (Legal-References.pdf(nycourts.gov) and contact the Help Center 

Help Center I NYCOURTS.GOV for assistance with e-f iling, as this 

lawsuit is an E-Filed case. 

4/30/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON 

Motion No. 017 018 

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J)-~ fl-}~ 20240430204 755DJ AMESDDB7FB56EB844C0F 8A9880C 61 BA9E6D8 

DEBRA A. JAMES, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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