ALTMAN v. Richard S. DiPreta, et al., appellants. (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for violation of Judiciary Law § 487, the defendants Richard S. DiPreta and DiPreta Law Firm, LLP, appeal from an order of the Supreme Court, Westchester County (Lewis J. Lubell, J.), dated January 10, 2023.  The order, insofar as appealed from, granted that branch of those defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action insofar as asserted against them only to the extent of directing dismissal of so much of that cause of action as was predicated upon events occurring prior to April 24, 2016, insofar as asserted against them by the plaintiff Altman Law Group, LLC.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs, Charles Altman and Altman Law Group, LLC, commenced this action, among other things, to recover damages for violation of Judiciary Law § 487 against, among others, the defendants Richard S. DiPreta and DiPreta Law Firm, LLP (hereinafter together the defendants).  The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first cause of action, alleging violation of Judiciary Law § 487, insofar as asserted against them.  In an order dated January 10, 2023, the Supreme Court, among other things, granted that branch of the motion only to the extent of directing dismissal of so much of the first cause of action as was predicated upon events occurring prior to April 24, 2016, insofar as asserted against them by the plaintiff Altman Law Group, LLC. The defendants appeal, and we affirm.

“Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel” (Joseph v. Bank of N.Y. Mellon, 219 A.D.3d 596, 597, 194 N.Y.S.3d 275;  see Tracey v. Deutsche Bank Natl. Trust Co., 187 A.D.3d 815, 817, 130 N.Y.S.3d 332).  “Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” (Capital One, N.A. v. Trubitsky, 206 A.D.3d 608, 610, 170 N.Y.S.3d 142 [internal quotation marks omitted];  see Matter of B.Z. Chiropractic, P.C. v. Allstate Ins. Co., 197 A.D.3d 144, 152, 152 N.Y.S.3d 46).  “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action ․ and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [emphasis omitted];  see Capital One, N.A. v. Trubitsky, 206 A.D.3d at 611, 170 N.Y.S.3d 142).

Here, contrary to the defendants’ contention, the issues raised in the instant action as to the defendants’ alleged violation of Judiciary Law § 487 could not have been raised in a prior action between the parties and were not necessarily decided in the prior action (see Altman v. DiPreta, 204 A.D.3d 965, 168 N.Y.S.3d 86).  Thus, neither res judicata nor collateral estoppel bars the plaintiffs from litigating the instant Judiciary Law § 487 cause of action against the defendants (see Simmons v. Jones Law Group, LLC, 214 A.D.3d 835, 837, 185 N.Y.S.3d 274;  Matter of Arcamone–Makinano v. Perlmutter, 196 A.D.3d 479, 481–482, 152 N.Y.S.3d 20).

“ ‘A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law’ ” (Ripa v. Petrosyants, 203 A.D.3d 770, 772, 164 N.Y.S.3d 168, quoting Mawere v. Landau, 130 A.D.3d 986, 987, 15 N.Y.S.3d 120;  see Bedford–Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908, 188 N.Y.S.3d 554).  “ ‘Under Judiciary Law § 487(1), an attorney who [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action’ ” (Oberlander v. Moore, 191 A.D.3d 1009, 1010, 142 N.Y.S.3d 593, quoting Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d 173, 177, 126 N.Y.S.3d 50, 149 N.E.3d 888 [alterations and internal quotation marks omitted];  see Judiciary Law § 487).  Here, contrary to the defendants’ contention, their evidentiary submissions failed to utterly refute the plaintiffs’ factual allegations that the defendants violated Judiciary Law § 487.

The defendants’ remaining contention is without merit.

BARROS, J.P., WOOTEN, DOWLING and LANDICINO, JJ., concur.