ADAM BROOK v. ESQ IRA SALZMAN ESQ DIANA ROSENTHAL ESQ FELICE WECHSLER ESQ KENNETH BARACOS ESQ IAN SHAINBROWN ESQ THE SHAINBROWN FIRM LLC KARL HUTH ESQ HUTH REYNOLDS LLP HOWARD MUSER ALLEGIENT HOME CARE LLC ANN REEN MARY MANNING WALSH NURSING HOME COMPANY INC ALLEN LOGERQUIST FLORENCE PUA ERIC NOWAKOWSKI TOWANA MOE JOHN MITCHELL NATIVIDAD ARTHUR AKPEROV DORIS BERMUDEZ NAVJOT SEPLA MARIE SWEET MINGOA MONITOR ME JASON KUBERT ANTHONY BACCHI JOHN DOES 10 (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 005) 89, 90, 91, 92, 93, 94, 95, 96, 118, 122, 138, 139, 144, 148, 149, 156, 166, 181, 190, 219, 220, 252 were read on this motion to/for DISMISSAL.

In this action to recover damages for violation of the New York Constitution, wrongful death, the conscious pain and suffering of the decedent, Judith Brook, breach of fiduciary duty, medical and legal malpractice, fraudulent billing, unjust enrichment, violation of Judiciary Law § 487, fraud on the court, and negligent infliction of emotional distress, the defendants Karl Huth, Esq. (Huth), and Huth Reynolds, LLP (Huth Reynolds; together the Huth defendants), move to dismiss the complaint insofar as asserted against them on the grounds that there is a prior action by the plaintiff pending against them for the same relief (CPLR 3211[a][4]) and that the complaint fails to state a cause of action (CPLR 3211[a][7]). The motion is granted on the ground that the complaint fails to state a cause of action against the Huth defendants.

The facts relevant to this action were set forth in great detail in this court's May 11, 2026 order determining Motion Sequence 001. As relevant here, the claims asserted against the Huth defendants are limited to the alleged violation of the New York Constitution (first cause of action), fraudulent billing (seventh cause of action), unjust enrichment (eighth cause of action), violation of Judiciary Law § 487 (ninth cause of action), and fraud on the court (tenth cause of action).

In their motion, the Huth defendants argued that the complaint should be dismissed insofar as asserted against them since there is another pending action between the parties for the same relief in federal court. They also argued that the first cause of action, which was for violation of the New York Constitution. fails insofar as asserted against them because they were not state actors but, instead, privately retained litigation counsel. The Huth defendants contended that the fraudulent billing cause of action must fail because plaintiffs never had an attorney-client relationship with the decedent or her estate or sought to bill the decedent or her estate for any services purportedly provided to her. The Huth defendants further contended that the allegations of fraud on the court do not satisfy the heightened standards of CPLR 3016(b). They further argued that the plaintiffs' eighth, ninth, and tenth causes of action failed to state a claim for relief. Finally, the Huth defendants incorporated by reference the contentions set forth in their codefendants' motions to dismiss the complaint as against those codefendants.

In opposition, the plaintiffs argued that their claims are not barred by the doctrines of res judicata and collateral estoppel since there has not yet been a final judgment in the guardianship proceeding. Moreover, they argued that dismissal of an complaint action on the ground that a prior action is pending is within the sound discretion of the court, which the court should exercise here by denying the motion. Finally, the plaintiffs argued that they sufficiently stated claims for fraudulent billing, unjust enrichment, violation of Judiciary Law § 487, and fraud on the court.

When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR 3211(a)(7), the court's role is "to determine whether [the] pleadings state a cause of action" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To determine whether a claim adequately states a cause of action, the court must "liberally construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884 [2013]; Simkin v Blank, 19 NY3d 46, 52 [2012]), and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991, 993 [2024]; Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 270-271 [1st Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]).

Inasmuch as this court agrees with the United States District Court for the Southern District of New York that the Huth defendants are not state actors, they cannot be held liable for alleged violations of the New York State Constitution, since "due process protection under either the US or NY Constitution is only available where the alleged deprivation is the result of state action" (Baskin v Mabco Transit, Inc., 176 AD3d 1539, 1542 [3d Dept 2019]). Even though New York courts have held that the definition of "state action" under the New York Constitution is broader than that recognized by federal courts in actions prosecuted pursuant to 42 USC § 1983 (see id.; SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 505 [1985]; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 158 [1978]; Svendsen v Smith's Moving & Trucking Co., 76 AD2d 504, 507 [2d Dept 1980], affd 54 NY2d 865 [1981]), this court concludes that the Huth defendants' conduct did not involve "significant state action" (SHAD Alliance v Smith Haven Mall, 66 NY2d at 505) since they were attorneys privately retained by the petitioner in the underlying guardianship proceeding, Howard Muser, who was the decedent's brother.

CPLR 3016(b) mandates that "the circumstances constituting the wrong shall be stated in detail." To satisfy this rule, a plaintiff should provide details such as the identity of the speaker, and where and when the statements were made. Eurycleia v. Seward Kissel, 12 NY3d 553, 559 [2009]). As the Appellate Division, First Department, explained it in Lax v Design Quest NY Ltd. (101 AD3d 431, 431 [1st Dept 2012]), where "plaintiffs fail to specify which invoices are inflated . . . the claim lacks the particularity required by CPLR 3016." Here, the plaintiff's allegations are too conclusory to meet the statutory pleading standards of CPLR 3016(b). The plaintiffs did not allege which specific bills were excessive or fraudulent, nor why they would be, and instead supported their allegations only by the inclusion of the bills themselves. Thus, the plaintiffs' seventh cause of action, which sought to recover for fraudulent billing, must be dismissed insofar as asserted against the Huth defendants for failure to state a cause of action.

To state a cause of action to recover for unjust enrichment, the plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). Furthermore, "the essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Sperry v Crompton Corp., 8 NY3d 204, 215 [2007] [internal quotation marks and citation omitted]). Here, the Huth defendants were awarded funds based on a court order, and the plaintiffs did not support their contention that an unjust enrichment claim should proceed on the theory that it was against equity and good conscience for the Huth defendants to retain funds awarded by a court order. Elements one and two of that cause of action are not pleaded sufficiently either, rather, the plaintiffs plainly state that the Huth defendants were unjustly enriched at their expense. However, the court's decision and order in the underlying guardianship proceeding essentially negated those elements when it awarded the funds to the Huth defendants. Thus, the plaintiffs' eighth cause of action, which was to recover for unjust enrichment, must be dismissed insofar as asserted against the Huth defendants for failure to state a cause of action.

"Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that another action is pending for the same relief, particularly where there is substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" (Clark v Clark, 93 AD3d 812, 816 [2d Dept 2012]; see Whitney v Whitney, 57 NY2d 731, 732 [1982]). With respect to the issue of whether there actually is a pending action for the same cause of action, if the relief sought in the later action is different than that sought in the pending action, the complaint in the later-filed action should not be dismissed, even where the parties are the same (see Parker v Rich, 140 AD2d 177, 178-179 [1st Dept 1988]). Where, as here, however, the prior related action already has been resolved, a motion pursuant to CPLR 3211(a)(4) must be denied as academic (see Nakazawa v Horowitz, 50 AD3d 985, 986 [2d Dept 2008]; Diaz v Philip Morris Cos., Inc., 28 AD3d 703, 705 [2d Dept 2006]; see also Matter of Living Real Estate Group, LLC v Douglas Elliman, LLC, 220 AD3d 573, 574 [1st Dept 2023]).

The ninth and tenth causes of action, which seek to recover for violation of Judiciary Law § 487 and fraud on the court, respectively, are dismissed for the same reasons as described in this court's May 21, 2026 order determining the motion submitted under Motion Sequence 002 and its July 10, 2026 order determining the motion submitted under Motion Sequence 003 (see generally Urias v Daniel P. Buttafuoco & Assocs., PLLC, 41 NY3d 560, 569 [2024] [although, under certain circumstances, a cause of action pursuant to Judiciary Law § 487 may lie even where it constitutes a collateral attack on a final determination in a prior proceeding, dismissal is warranted where defendant demonstrated that plaintiff "failed to [sufficiently] allege that [he] engaged in deceit or collusion during the course of the underlying"]).

As noted above, the Huth defendants seek to incorporate arguments made by their codefendants in support of those codefendants' prior motions to dismiss the complaint. To the extent that the Huth defendants seek dismissal on the grounds that the action is time barred as to them or because a prior action for the same relief was pending, the court rejects those contentions. To the extent that they seek to raise additional arguments as to why the complaint fails to state a cause of action against them, the court declines to address those issues.

The plaintiffs' remaining contentions are without merit.

Accordingly, it is,

ORDERED that the motion of the defendants Karl Huth, Esq. and Huth Reynolds, LLP to dismiss the complaint insofar as asserted against them is granted, and the complaint is dismissed insofar as asserted against those defendants; and it is further,

ORDERED that, on the court's own motion, the action is severed against the defendants Karl Huth, Esq. and Huth Reynolds, LLP; and it is further,

ORDERED that the Clerk of the court shall enter judgment dismissing the complaint insofar as asserted against the defendants Karl Huth, Esq. and Huth Reynolds, LLP.

This constitutes the Decision and Order of the court.

DATE 7/10/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.