DIANE MARIE ACCIAVATTI,LLC

77 JEFFERSON PLACE

TOTOWA, NEW JERSEY 07512 

ATTORNEY FOR PLAINTIFF

(973) 790-5008

 UNITED STATES DISTRICT COURT 

DARCY SMITH, Ph.D, DISTRICT OF NEW JERSEY

 Plaintiff, CIVIL CASE NO. 

v. 

CYNTHIA BORSELLA LINDEMANN, ESQ., COMPLAINT AND DEMAND FOR 

an attorney at law of the State TRIAL BY JURY 

of New Jersey; WEINSTEIN, SNYDER, 

LINDEMANN & SARNO; STEVEN 

URBINATO, ESQ., an attorney at law 

of the State of New Jersey;

STARR, GERN, DAVISON & RUBIN,P.C.;

MARC A. CALELLO, ESQ.; MARC A. 

CALELLO, P.C.,

Defendants

 

 Plaintiff, Darcy Smith, Ph.D., a resident and citizen of

the State of New York, with a business address of 177 Prince

Street, New York, New York, as and for her Complaint against the

Defendants, alleges and states as follows:

PARTIES

1. Plaintiff Darcy Smith, Ph.D. is and was at all relevant

times an individual and citizen of the State of New York, with a

business address of 177 Prince Street, New York, New York.

2. Defendant Cynthia Borsella Lindemann, Esq. (“Lindemann”) is

an individual and citizen of the State of New Jersey and is and was

at all relevant times an attorney licensed to practice law in the

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State of New Jersey. 

3. Defendant Lindemann is and was at all relevant times a

partner and\or employee of Weinstein, Snyder, Lindemann & Sarno

(“the Weinstein firm”) a law firm with its principal place of

business located at 101 Eisenhower Parkway, Roseland, New Jersey.

4. Defendant the Weinstein firm is and was at all relevant

times a partnership and entity engaged in the practice of law in

the State of New Jersey. 

5. Defendant Steven Urbinato, Esq. (“Urbinato”) is an

individual and citizen of the State of New Jersey and is and was at

all relevant times an attorney licensed to practice law in the

State of New Jersey. 

6. Defendant Urbinato is and was at all relevant times a

partner, shareholder, and\or employee of Starr, Gern, Davison, &

Rubin, P.C., a law firm with its principal place of business

located at 103 Eisenhower Parkway, Roseland, New Jersey. 

7. Defendant Starr, Gern, Davison, & Rubin, P.C. (“the Starr

law firm”) is and was at all relevant times a professional

corporation organized under the laws of the State of New Jersey

engaged in the practice of law in the State of New Jersey. 

8. Defendant Marc A. Calello, Esq. (“Calello”) is an

individual and citizen of the State of New Jersey and is and was at

all relevant times an attorney licensed to practice law in the

State of New Jersey. 

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9. Defendant Calello at all relevant times was engaged in the

practice of law as a solo practitioner and\or as Marc A. Calello,

P.C.,(“the P.C.”) a professional corporation organized under the

laws of the State of New Jersey engaged in the practice of law in

the State of New Jersey, with a principal place of business located

at 675 Franklin Avenue, Nutley, New Jersey. 

10. Defendant Lindemann at all relevant times held herself

out to the public and clients, including Plaintiff Darcy Smith,

Ph.D., as possessing specialized expertise and experience in

matrimonial litigation. 

11. Defendant Urbinato at all relevant times held himself 

out to the public and clients, including Plaintiff Darcy Smith,

Ph.D., as possessing specialized expertise and experience in

business law matters. 

JURISDICTION

12. The amount in controversy exceeds $75,000, exclusive of

interest and costs. 

13. The Court has jurisdiction pursuant to 28 U.S.C. § 1332

(a) based on the diversity of citizenship between the Plaintiff and

all Defendants. 

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

14. Plaintiff Darcy Smith, Ph.D (“Plaintiff Smith”) was

formerly married to David Kokakis (“Kokakis”). 

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15. At all relevant times, Plaintiff Smith is and was a

licensed social worker engaged in the private practice of providing

psychological counseling.

16. During the marriage, Plaintiff Smith and Kokakis owned two

restaurants known as “Voro” and “Andavi.”

17. Plaintiff Smith and Kokakis were each 35% shareholders in

the entity Vose Restaurant, LLC, the entity that owned and operated

Voro. A Matthew McDowell, Esq. and a Eupremio Zizza, Esq. were

each 15% shareholders of Vose Restaurant, LLC (“the LLC”). With

respect to the ownership and operation of Vose Restaurant, LLC dba

Voro, Kokakis, McDowell and Zizza are collectively referred to

herein as “Plaintiff’s business partners.” 

18. Plaintiff Smith and Kokakis were the shareholders of 91

Christopher, LLC and\or Bear Restaurant Corp., LLC, which owned and

operated Andavi. Plaintiff Smith was a 98% shareholder and Kokakis

was a 2% shareholder. 

19. In 2006, Plaintiff Smith retained Defendant Lindemann and

Defendant the Weinstein firm to represent her in a divorce action

and to negotiate the terms of a Property Settlement Agreement

between Plaintiff Smith and Kokakis. 

20. At the recommendation of Lindemann, Plaintiff Smith

retained Defendant Urbinato and Defendant the Starr firm to

represent her with respect to negotiating the business terms of the

Property Settlement Agreement, i.e., the business terms for the

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ownership and operation of Voro and Andavi. 

21. Defendants Lindemann and Urbinato were negligent in

rendering advice and counsel to Plaintiff Smith with respect to the

negotiation of the terms of the Property Settlement Agreement and

failed to protect the interests of Plaintiff Smith, including but

not limited to Plaintiff’s rights and liabilities associated with

Voro and Andavi. 

22. The acts and omissions of Defendants Lindemann and

Urbinato that were negligent and a failure to properly represent

and protect the interests of Plaintiff include but are not limited

to:

A. Lindemann failed to appropriately address Plaintiff’s

concerns that Kokakis concealed assets and misrepresented the

financial status of Voro and Andavi, and instead negligently and

erroneously represented to Plaintiff that Plaintiff’s interests

were protected because the Property Settlement Agreement included

language that preserved Plaintiff’s right to litigate in the future

in the event she discovered that Kokakis had concealed assets or

otherwise defrauded the Plaintiff. Plaintiff was subsequently a

party to a Chancery Division litigation with Kokakis concerning

Voro, in which the trial judge determined that the Property

Settlement Agreement included boilerplate language that constituted

a waiver of rights by Plaintiff. As a result, Plaintiff incurred

legal fees for representation in the litigation and lost an

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opportunity to settle the litigation for a substantial sum of money

to be paid to the Plaintiff. 

B. Contrary to the language of the Property Settlement

Agreement which required the proceeds from the sale of the Andavi

restaurant to be deposited into the Attorney Trust Account of

Urbinato\the Starr firm, Lindemann and Urbinato failed to take any

action and failed to notify Plaintiff that the proceeds of sale

were instead deposited into the Attorney Trust Account of Ronald

Fishman, Esq., Kokakis’ business attorney. As a result,

unauthorized disbursements, for debts and expenses that were not to

be the responsibility of Plaintiff, were made from the proceeds of

sale, reducing the amount of the distribution to Plaintiff from the

proceeds of the sale. 

C. Prior to the execution of a Property Settlement Agreement,

Lindemann and Urbinato advised Plaintiff to make

payments\disbursements to Kokakis, purportedly for personal marital

debt and\or business debt of Andavi and Voro, without verifying the

purported debt, nor ensuring that the payments\disbursements were

actually used to pay the purported debt. 

D. Failure to properly protect Plaintiff’s interests with

respect to the operation and management of Voro, with the result

that Kokakis was able to skim cash from the business and create a

false and erroneous impression that Voro was an unprofitable

business. As a result, Plaintiff did not receive the share of the

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proceeds of the sale of Voro to which she was entitled and was

compelled to pay a substantial sum of money in exchange for a

General Release and indemnification of any liability associated

with Voro. 

23. In November of 2006, Plaintiff Smith discharged Defendant

Lindemann and the Weinstein firm and retained Defendant Calello

and\or the PC to represent her with respect to: 1)enforcing

Plaintiff’s rights and Kokakis’ obligations under the terms of the

Property Settlement Agreement (“Family Law action”); 2) to stop the

ongoing defrauding of Plaintiff by Plaintiff’s business partners

with respect to the operation and management of Voro (“the Voro

litigation”); and 3) to seek relief for suspected fraud committed

by Kokakis in misrepresenting to Plaintiff that the continued

operation of Andavi required capital contributions from Plaintiff

(“the Andavi litigation”).

24. Defendant Calello introduced the Plaintiff to another

attorney with whom he shared office space, Alfonse A. DeMeo, Esq.

(“DeMeo”). It was agreed that Calello would represent Plaintiff

with respect to the Family Law Action and the Voro litigation and

DeMeo would represent Plaintiff with respect to the Andavi

litigation. 

25. The Family Law action was concluded in early 2007. 

26. With respect to the Voro litigation, Plaintiff terminated

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Calello in January of 2008 due to dissatisfaction with his

representation, which included but was not limited to Calello

filing pleadings out of time, attending court appearances not

adequately prepared, requesting adjournments of hearings without

Plaintiff’s consent, failure to respond to Plaintiff’s

communications regarding the status of the litigation, and failing

to timely notify Plaintiff of Motions filed by the defendants in

the Voro litigation. At the time Plaintiff discharged Calello from

his representation of her in the Voro litigation, there was a trial

date of January 22, 2008.

27. Plaintiff then retained DeMeo to represent her in the Voro

litigation. Calello persuaded Plaintiff that Calello should remain

“counsel of record” on her behalf in the Voro litigation. Based on

Calello’s recommendation, Plaintiff agreed that Calello would

remain as “counsel of record” and understood that the actual work

to represent Plaintiff’s interests in the litigation would be

performed by DeMeo. Calello did not inform the Plaintiff that as

“counsel of record”, Calello would continue to bill the Plaintiff

when DeMeo was actually performing the work, resulting in double

and excessive billing to the Plaintiff.

28. After the presentation of Plaintiff’s evidence in the Voro

trial, the trial judge strongly urged the parties to settle,

indicating that based on the boilerplate waiver language in the

Property Settlement Agreement, he would likely strike all evidence

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relating to events which occurred prior to the Property Settlement

Agreement and limit evidence to events that occurred after the

Property Settlement Agreement was entered into. 

29. With no leverage for negotiation in light of the trial

judge stating his intent to limit the evidence to events that

occurred after the Property Settlement Agreement, Plaintiff had no

choice but to accept a settlement of the Voro litigation that

included payment of a sum of money that was far less than what the

defendants in the Voro litigation had offered in settlement

previously. 

30. The terms of the settlement of the Voro litigation were

placed on the record before the trial judge in January of 2008. 

31. Calello engaged in negotiations with counsel for the

defendants in the Voro litigation for a written Settlement

Agreement to memorialize the terms of the settlement placed on the

record in court in January of 2008. When counsel for the parties

could not agree on the terms of the written memorialization of the

terms of the settlement, Calello submitted a proposed Consent Order

to the court, without first providing the proposed Consent Order to

the Plaintiff for review and without obtaining Plaintiff’s consent

and authorization. The terms of the Consent Order prepared by

Calello and submitted to the court deviated in material ways from

the terms of the settlement placed on the record in court in

January of 2008. The material deviations of the terms of the

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Consent Order consisted of both the inclusion of terms that were

not terms agreed to by Plaintiff as part of the settlement, and the

omission of material terms that were agreed to by all parties as

part of the settlement. 

32. The trial judge ultimately executed the proposed Consent

Order submitted by Calello, with the result that Plaintiff became

bound, without her knowledge, authorization or consent, to the

terms set forth in the Consent Order, which materially deviated, to

the Plaintiff’s economic detriment, from the settlement terms

recited on the record in court in January of 2008. 

33. In July of 2008, unknown to the Plaintiff, Plaintiff’s

business partners filed Motions seeking relief against the

Plaintiff in the Voro litigation. 

34. Notwithstanding that he had never been relieved by the

court as “counsel of record” for the Plaintiff in the Voro

litigation, Calello, without informing the Plaintiff, advised

counsel for the defendants in the Voro litigation that he had not

been retained as counsel for the Plaintiff, and Calello refused to

accept service of the Motions, suggesting that the defendants’

attorney serve the Plaintiff personally. 

35. Calello unreasonably failed to appropriately and timely

advise Plaintiff or DeMeo that the Motions had been filed, as a

result of which there was inadequate time for the timely

preparation and filing of opposition to the Motions. Calello

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delayed until the day before the opposition was due to write to the

court to request an adjournment, and failed to follow up to

determine whether or not the request for an adjournment was

granted. The requested adjournment was not granted, and both

Motions were decided by the Court as unopposed. As a result,

Plaintiff incurred additional legal fees to DeMeo to file Motions

for Reconsideration. 

36. Despite being advised by Plaintiff that he was not

authorized to deduct from the proceeds of the sale of Andavi legal

fees he claimed to be due and owing to him, Calello exerted

economic duress by delaying and refusing to disburse to Plaintiff

the monies that were the proceeds of the sale of Andavi and which

monies belonged to the Plaintiff. Knowing Plaintiff needed the

funds, Calello caused Plaintiff to be subject to economic duress

and refused to disburse to the Plaintiff monies that belonged to

the Plaintiff until Plaintiff felt compelled to agree to Calello

deducting a portion of the proceeds to pay to himself. 

37. In addition to economic damages sustained as a result of

Calello’s negligent acts and omissions, Plaintiff suffered

emotional distress requiring psychological treatment and incurred

expenses for treatment. In addition, Plaintiff suffered lost

income because the emotional distress limited her ability to work

professionally providing psychological counseling. 

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FIRST COUNT

38. The Plaintiff repeats and realleges each and every

allegation set forth in paragraphs 1 through 37 as though set forth

at full length herein. 

39. Defendants Lindemann, Urbinato, and Calello each had a

duty to exercise that degree of reasonable knowledge, skill and

expertise ordinarily possessed by attorneys similarly situated in

their respective representation of the Plaintiff.

40. Defendants Lindemann, Urbinato, and Calello each breached

their duty to exercise that degree of reasonable knowledge, skill

and expertise ordinarily possessed by attorneys similarly situated

in their respective representation of the Plaintiff.

41. The breaches of duty by the Defendants Lindemann,

Urbinato, and Calello caused and\or were a substantial factor in

causing economic harm sustained by the Plaintiff. 

42. The breaches of duty by Defendant Calello caused and\or

were a substantial factor in causing the Plaintiff to suffer

emotional distress and loss of professional income as a result of

the emotional distress. 

43. The Defendant the Weinstein firm is vicariously liable for

the breaches of duty by Lindemann. 

44. The Defendant the Starr firm is vicariously liable for the

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breaches of duty by Urbinato. 

45. The Defendant the PC is vicariously liable for the

breaches of duty by Calello. 

WHEREFORE, the Plaintiff Darcy Smith, Ph.D demands

judgment against all Defendants jointly, severally and in the

alternative for:

A. Compensatory damages; 

B. The return of legal fees paid to the Defendants; 

B. Attorneys fees and costs for the prosecution of the legal

malpractice claims ;

C. Interest;

 D. Such other relief as may be deemed equitable and just. 

SECOND COUNT

46. The Plaintiff repeats and realleges each and every

allegation of paragraphs 1 through 45 as though set forth at full

length herein. 

 47. The Defendants Lindemann, Urbinato, and Calello each

deviated from the accepted standards of legal practice for

attorneys in the representation of Plaintiff. 

 48. The deviations from accepted standards of legal practice

by each of the Defendants caused and\or were a substantial factor

in the economic harm sustained by the Plaintiff. 

 49. The deviations from accepted standards of legal practice

by Defendant Calello caused and\or were a substantial factor in

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causing the Plaintiff to suffer emotional distress and loss of

professional income as a result of the emotional distress. 

50. The Defendant the Weinstein firm is vicariously liable for

the deviations from accepted standards of legal practice by

Lindemann. 

51. The Defendant the Starr firm is vicariously liable for the

deviations from accepted standards of legal practice by Urbinato.

52. The Defendant the PC is vicariously liable for the

deviations from accepted standards of legal practice by Calello.

WHEREFORE, the Plaintiff Darcy Smith, Ph.D demands judgment

against all Defendants jointly, severally and in the alternative

for:

A. Compensatory damages; 

B. The return of legal fees paid to the Defendants; 

B. Attorneys fees and costs for the prosecution of the legal

malpractice claims ;

C. Interest;

 D. Such other relief as may be deemed equitable and just. 

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JURY DEMAND

The Plaintiff demands a trial by jury of all issues so triable. 

Date: June 29 ,2010 

 /s/Diane Marie Acciavatti, Esq.

 Diane Marie Acciavatti, Esq.

 Attorney for Plaintiff

 

CERTIFICATION PURSUANT TO LOCAL RULE 11.2

 

Pursuant to Local Rule 11.2, the undersigned hereby certifies

that matter in controversy is not currently the subject of any

other action pending in any court, or of any pending arbitration or

administrative proceeding. The matter in controversy was

previously the subject of an action captioned Marc A. Calello,

Esq., P.C. v. Dr. Darcy Smith, Superior Court of New Jersey, Law

Division, Essex County, Docket No. ESX-L-10202-08, which action was

dismissed to proceed to arbitration by an Order filed on July 17,

2009, and the subject of an ex parte “arbitration” proceeding in

which Plaintiff Darcy Smith, Ph.D did not participate. 

Date: June 29 ,2010 

 /s/Diane Marie Acciavatti, Esq.

 Diane Marie Acciavatti, Esq.

 Attorney for Plaintiff

 

 

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