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 006) 97, 98, 99, 100, 101, 124, 140, 157, 167, 182, 191, 202, 253 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 defendant Kenneth Barocas, Esq., moves pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him on the grounds that a prior action is pending against him for the same relief (CPLR 3211[a][4]), that the action is barred by res judicata and/or collateral estoppel (CPLR 3211[a][5]), and that the complaint fails to state a cause of action (CPLR 3211[a][7]). The plaintiffs oppose the motion. The motion is granted on the ground that the complaint fails to state a cause of action against Barocas, and the complaint is thus dismissed insofar as asserted against him.

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 Barocas, who was appointed by the Supreme Court, New York County, to represent the decedent in an underlying guardianship proceeding, are limited to alleged violations of the New York Constitution (first cause of action), breach of fiduciary duty (fourth cause of action), legal malpractice (sixth cause of action), and fraud on the court (tenth cause of action).

In his motion, Barocas argued that the complaint should be dismissed insofar as asserted against him because it is entirely duplicative of the federal action that is allegedly pending before the United States District Court for the Southern District of New York. Barocas also argued that he cannot bear liability for alleged violations of the New York Constitution since he is not a state actor. He further contended that the plaintiffs are barred by the doctrines of res judicata and/or collateral estoppel from asserting that he is a state actor, inasmuch as he was previously adjudicated to be a non-state actor in the related federal action. Barocas also argued that he is entitled to quasi-judicial immunity from liability in connection with all of the causes of action asserted against him in light of his role as a court-appointed attorney in the Mental Hygiene Law article 81 guardianship proceeding that gave rise to this action. Lastly, Barocas argued that the plaintiffs' claims to recover for breach of fiduciary duty, legal malpractice, and fraud on the court all fail to state a cause of action, regardless of whether or not he is protected by quasi-judicial immunity, since the plaintiffs failed to allege facts sufficiently specific to support such causes of action.

In opposition to Barocas's motion, the plaintiffs argued that the federal action was dismissed, and, thus, is no longer pending. The plaintiffs also argued that Barocas's appointment as a court-appointed attorney either renders him a state actor or constitutes a sufficient nexus between his conduct and the interests of the State to support a claim for violation of the New York Constitution, and that Barocas is not entitled to quasi-judicial immunity. The plaintiffs further argued that their claims are not barred by the doctrines of res judicata and collateral estoppel since the federal courts entertaining the prior federal action did not address the merits of the plaintiffs' state-law claims. Finally, the plaintiffs argued that the complaint properly alleged a cause of action to recover for legal malpractice against Barocas.

For the same reasons as described in this court's June 11, 2026 order determining Motion Sequence 004, the court is constrained to dismiss the first cause of action insofar as asserted against Barocas, which seeks to recover for violation of the New York Constitution, for failure to state a cause of action. Specifically, the plaintiffs failed to demonstrate that this cause of action falls within the limited ambit in which a private right of action may be implied to vindicate the provisions of the New York Constitution. In any event, the plaintiffs are collaterally estopped by the determination of the District Court from arguing that Barocas was a state actor and, even if they weren't so estopped, the court agrees with the District Court's conclusions in this regard in any event.¹

Barocas, as an attorney appointed by the court to act as an advocate on behalf of the decedent, is not entitled to quasi-judicial immunity (see Ferri v Ackerman, 444 US 193, 203-205 [1979] [holding that the essential office of court-appointed counsel is akin to that private counsel and unlike that of judge or prosecutor, and that such counsel is thus not immune from suit for malpractice]; Gross v Rell, 695 F3d 211, 214 [2d Cir 2012] [concluding that court-appointed attorneys for conservatees enjoy no immunity since their function generally does not differ from that of privately retained attorneys in other contexts]; Murph v State of New York, 105 Misc 2d 684, 685 [Ct Claims 1980] [finding that, unlike a guardian or court evaluator, a court-appointed counsel is not immune from suit for malpractice by virtue of their court appointment]). Nonetheless, the remaining causes of action asserted against Barocas must also be dismissed for failure to state a cause of action. With regard to the fourth and sixth causes of action, which seek to recover for breach of fiduciary duty and legal malpractice, respectively, the court is constrained to dismiss those claims as against Barocas for failure to state a cause of action for the same reasons as described in this court's May 21, 2026 order determining Motion Sequence 002. With regard to the tenth cause of action, which seeks to recover for fraud on the court, the court is also constrained to dismiss that claim insofar as asserted against Barocas for failure to state a cause of action for the same reasons as described in this court's May 21, 2026 order determining Motion Sequence 002 and the July 10, 2026 order determining Motion Sequence 003. More specifically, the allegations underpinning all three of those causes of action are conclusory, and are insufficient to make out such causes of action (see Miller v Allstate Indem. Co., 132 AD3d 1306, 1307 [4th Dept 2015] ["a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations"]).

The court notes, however that there is no basis to dismiss the complaint insofar as asserted against Barocas on the ground that a prior action is pending against him for the same relief. The court reaches this conclusion for the same reasons as described in this court's July 10, 2026 orders determining Motion Sequence 003 and 005.

The plaintiffs' remaining contentions are without merit.

Accordingly, it is,

ORDERED that the motion of the defendant Kenneth Barocas, Esq., to dismiss the complaint insofar as asserted against him is granted, and the complaint is dismissed insofar as asserted against that defendant; and it is further,

ORDERED that, on the court's own motion, the action is severed against the defendant Kenneth Barocas, Esq.; and it is further,

ORDERED that the Clerk of the court shall enter judgment dismissing the complaint insofar as asserted against the defendant Kenneth Barocas, Esq.

This constitutes the Decision and Order of the court.

DATE 7/10/2026

JOHN J. KELLEY, J.S.C.

FOOTNOTES

1.   Contrary to Barocas's contention, the doctrine of res judicata, or claim preclusion (see Simmons v Trans Express, Inc., 37 NY3d 107, 111 [2021]) does not bar the plaintiffs' state law claims against him, since neither the District Court nor the United States Court of Appeals for the Second Circuit dismissed those claims on the merits, and the plaintiffs did not assert a state constitutional claim against Barocas in the federal action, let alone such a claim that was dismissed on the merits.

John J. Kelley, J.