PETEREC TOLINO v. CIACCI (2024)

Order, Supreme Court, New York County (David B. Cohen, J.), entered June 27, 2022, which granted defendants' motion to dismiss the complaint and denied plaintiff's motion for an evidentiary hearing, unanimously affirmed, without costs.

As a threshold matter, we find that defendants moved to dismiss within the time allotted by statute, given the manner of service on both the individual attorney defendant (Ciacci) and the law firm defendant Della Mura & Ciacci, LLP (DM & C), a limited liability partnership (see CPLR 308[2], 310–a[a], 320[a];  see also Green v. Gross & Levin, LLP, 101 A.D.3d 1079, 1080, 958 N.Y.S.2d 399 [2d Dept. 2012]).

Supreme Court properly dismissed plaintiff's breach of fiduciary duty claim, to the extent it arises from Ciacci's suggestion that plaintiff and his wife seek funding for their personal injury action against nonparty City of New York and related parties (see Kurtzman v. Bergstol, 40 A.D.3d 588, 590, 835 N.Y.S.2d 644 [2d Dept. 2007]).  Plaintiff's signed agreement with the nonparty funder, selling a portion of his interest in any potential future litigation proceeds, “conclusively establishes a defense to the asserted claim as a matter of law,” as it shows that defendants did not commit any misconduct by failing to warn plaintiff of the terms of the agreement (Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994];  see CPLR 3211[a][1]), which plaintiff admittedly signed (see VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193, 98 N.Y.S.3d 1 [1st Dept. 2019];  Tozzi v. Mack, 169 A.D.3d 547, 548, 92 N.Y.S.3d 648 [1st Dept. 2019], lv denied 33 N.Y.3d 908, 2019 WL 2441517 [2019]).  Plaintiff cannot demonstrate that defendants induced him into signing (see Countrywide Home Loans, Inc. v. Gibson, 157 A.D.3d 853, 856, 70 N.Y.S.3d 580 [2d Dept. 2018]), or that the contract was usurious or unconscionable, given that he received a cash advance and the repayment terms were contingent upon him securing a judgment or settlement (see Cash4Cases, Inc. v. Brunetti, 167 A.D.3d 448, 449–450, 90 N.Y.S.3d 154 [1st Dept. 2018]).

Supreme Court also properly dismissed the breach of fiduciary duty claim to the extent that it arose from defendants' legal representation of plaintiff.  Since plaintiff essentially alleges that defendants “provided inadequate and ineffective representation,” the claim is “properly treated ․ as sounding in legal malpractice” (Cherry Hill Mkt. Corp. v. Cozen O'Connor L.P., 118 A.D.3d 514, 514, 987 N.Y.S.2d 146 [1st Dept. 2014]).  As for plaintiff's proceedings before the Workers' Compensation Board (WCB), both the Administrative Law Judge and review panel's appeal decisions constitute documentary evidence conclusively establishing that plaintiff would not have prevailed, as those decisions were based on his claim form, statements at an independent medical evaluation, and testimony during the WCB hearing (see O'Callaghan v. Brunelle, 84 A.D.3d 581, 581–582, 923 N.Y.S.2d 89 [1st Dept. 2011], lv denied 18 N.Y.3d 804, 2012 WL 117988 [2012]).  As for his first personal injury action against the City, the MTA, and related parties, the complaint fails to state a cause of action for malpractice since defendants successfully negotiated a settlement on his behalf despite an adverse finding by the WCB. As for his second personal injury action against private construction companies, of which plaintiff disclaimed knowledge until after the settlement was negotiated, the stipulation of discontinuance demonstrates that the settlement covered those companies as well, as they were represented by the same attorney who represented the City defendants in the other action and negotiated the settlement with plaintiffs (see Chic Realty 712, LLC v. GSA Holding Corp., 220 A.D.3d 914, 915, 198 N.Y.S.3d 730 [2d Dept. 2023]).

Plaintiff's fraud and constructive fraud claims were properly dismissed.  Regarding the authorizations to disclose his WCB file to defendants (his own attorneys) and to the City's attorney in the personal injury action, the alleged forgery does not constitute misrepresentations made to plaintiff and he does not allege his reliance thereon (Eurycleia Partners, L.P. v. Seward & Kissel, LP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009];  Walnut Hous. Assoc. 2003 L.P. v. MCAP Walnut Hous. LLC, 136 A.D.3d 403, 405, 25 N.Y.S.3d 129 [1st Dept. 2016]).  As to the litigation funding, defendants' representations about the status of the personal injury action were true, and as for the second personal injury action, plaintiff's allegations of damages are speculative.

Supreme Court also properly dismissed plaintiff's conversion claim.  Plaintiff does not have a possessory right to WCB files, though the WCB is authorized to disclose his file to him (Workers Compensation Law § 110–a[1][a], [2][c]).  As such, defendants' procurement of authorizations for disclosure, even if based on the allegedly forged authorization forms, did not interfere with plaintiff's “possessory right or interest in the property” (Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713 [2006];  see Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 473, 905 N.Y.S.2d 585 [1st Dept. 2010];  see also Workers Compensation Law § 110–a[3]).

Finally, Supreme Court providently denied plaintiff's motion for a hearing to determine how defendants came into possession of one of the WCB decisions annexed to their motion papers, since the issue is moot.  Further, there was no “case-ending prospect” that would favor plaintiff were this particular exhibit excluded, given the remaining documentary evidence (Brown v. Micheletti, 97 A.D.2d 529, 530, 468 N.Y.S.2d 160 [2d Dept. 1983]).  In any event, plaintiff also failed to refute Ciacci's sworn statement that plaintiff or his wife provided the document to him while he was still representing them in the personal injury action involving the City.