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 004) 58, 59, 60, 61, 62, 155, 161, 164, 179, 188, 198, 199, 200, 214, 221, 250 were read on this motion to/for DISMISSAL.

In this action to recover damages for violation of the New York Constitution, wrongful death, a survival claim to recover for the decedent's conscious pain and suffering, 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 Ira Salzman, Esq. moves to dismiss the complaint insofar as asserted against him on the grounds that there is a prior action by the plaintiff 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 Salzman, and the complaint is 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 Salzman are limited to the alleged violation of the New York Constitution (first cause of action), breach of fiduciary duty (fourth cause of action), violation of Judiciary Law § 487 (ninth cause of action), and fraud on the court (tenth cause of action).

In his motion, Salzman argued that he cannot bear liability for alleged violations of the New York Constitution since he is not a state actor. He also argued 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 a related federal action. Salzman further argued that he is entitled to absolute immunity from liability in connection with all of the causes of action asserted against him in light of his role as a court-appointed evaluator in a Mental Hygiene Law article 81 guardianship proceeding that gave rise to this action. Lastly, Salzman argued that the plaintiff's claims to recover for breach of fiduciary duty, fraud on the court, and violation of Judiciary Law § 487 fail to state a cause of action, regardless of whether or not he is protected by quasi-judicial immunity. In opposition, the plaintiffs argued that their claims are not barred by the doctrines of res judicata and collateral estoppel since the claims for violation of the New York Constitution were not raised in the previously dismissed federal action, and that the issue of whether Salzman was a state actor was raised by the federal courts, but ultimately was not the basis for the dismissal of the related federal action. The plaintiffs also argued that Salzman is not entitled to absolute immunity, and further contended that Salzman's conduct gave rise to a claim for violation of the decedent's and Adam Brook's rights under the New York Constitution. Finally, the plaintiffs argue that the complaint alleged claims for gross and ordinary negligence, though incorrectly denominated as a breach of fiduciary duty cause of action, and that such claims were timely filed as to Salzman.

Under New York law, absolute immunity extends to all persons, governmental or otherwise, who are integral parts of the judicial process (see Mosher-Simons v County of Allegany, 99 NY2d 214, 220 [2002], citing Briscoe v LaHue, 460 US 325 [1983]). This protection rests on the principle that "other neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions, should not be shackled with fear of civil retribution for their acts" (Mosher-Simons v County of Allegany, 99 NY2d at 220).

Where a private party is appointed by the court as an evaluator, that party is afforded judicial immunity from suit in connection with the work he or she had performed in such capacity (see Bridget M. v. Billick, 36 AD3d 489, 490 [1st Dept 2007]). This immunity, however, is circumscribed so that it applies only to claims arising from the performance of the specific quasi-judicial functions that actually were delegated (see Mosher-Simons, 99 NY2d at 220).

In Mosher-Simons, a caseworker prepared a court-ordered home study evaluation to assist the court in determining appropriate custodial placement. Because the caseworker functioned as an extension of the court, and within the scope of a delegated function, the Court of Appeals recognized that the county which had employed the caseworker was entitled to quasi-judicial immunity. Similarly, here, Justice Kelly O'Neill-Levy appointed Salzman as the successor court-appointed evaluator in the subject Mental Hygiene Law article 81 guardianship proceeding. All allegations in the complaint against Salzman arise from his performance of this court-ordered evaluation. Thus, Salzman functioned as an extension of the court, and within the scope of his delegated function. Consequently, quasi-judicial immunity applies to bar this action against him (see Bridget M. v Billick, 36 AD3d at 490 [psychiatrist appointed by the court as a forensic evaluator had quasi-judicial immunity from suit for malpractice regarding work within the scope of those duties]). Where the conduct complained of occurred during the course of judicial proceedings, was reasonably related to the proceeding, and was connected with and logically related to the purpose of the proceeding, a defendant such as Salzman is entitled to quasi-judicial immunity (see Deed v Condrell, 150 Misc 2d 279, 282 [Sup Ct, Erie County 1991]). As such, Salzman is entitled to absolute immunity here, and the complaint must be dismissed insofar as asserted against him on that ground.

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]). As relevant here, dismissal is warranted where a defendant has established his or her immunity from liability, since such immunity forms an appropriate basis for a CPLR 3211(a)(7) motion to dismiss the complaint (see Mera v NY City Health & Hosps. Corp., 220 AD3d 668, 670 [2d Dept 2023]; see also Martinez v NYC Health & Hosps. Corp., 223 AD3d 731, 732-733 [2d Dept 2024]).

In the prior, related federal action, the United States District Court for the Southern District of New York determined that Salzman was not a state actor within the meaning of 42 USC § 1983 merely by virtue of his appointment as an evaluator by a state court (see Brook v Ruotolo, 22-cv-6173[ER], 23-cv-1319 [ER], 2023 US Dist LEXIS 147907, 2023 WL 5352773 [SD NY, Aug. 21, 2023]). The United States Court of Appeals, however, affirmed the District Court's dismissal of the complaint insofar as asserted against him on other grounds, specifically, the insufficiency of the allegations set forth in the complaint (see Brook v Ruotolo Nos. 23-1339[L], 23-7446 [Con], 2024 US App LEXIS, 2024 WL 3912831 [2d Cir, Aug. 23, 2024]). For the purposes of claims asserted pursuant to 42 USC § 1983, court-appointed guardians do not act under color of state law by virtue of their appointment (see Shabtai v Shabtai, No. 20-cv-10868 [JGK], 2021 US Dist LEXIS 73759, *4 [SD NY, Apr. 16, 2021]; Galanova v. Portnoy, 432 F Supp 3d 433, 445-446 [SD NY 2020]; Storck v Suffolk County Dept. of Soc. Servs., 62 F Supp 2d 927, 941 [ED NY 1999]). Nor do court-appointed evaluators (see Shabtai v Shabtai, No. 20-cv-10868 [JGK], 2021 US Dist LEXIS 73759, *4 [SD NY, Apr. 16, 2021]). Inasmuch as this court agrees with the District Court that Salzman is not a state actor, he cannot be held liable for alleged violations of the New York State Constitution, since "due process protection under . . . the . . . 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 Salzman's conduct did not involve "significant state action" (SHAD Alliance v Smith Haven Mall, 66 NY2d at 505). Thus, even in the absence of immunity, this court would, in any event, be constrained to dismiss the first cause of action as against Salzman for failure to state a cause of action.

To state a claim to recover for breach of fiduciary duty, the plaintiffs must allege that (1) defendant owed them a fiduciary duty, (2) defendant committed misconduct, and (3) they suffered damages caused by that misconduct (see Besen v Farhadian, 195 AD3d 548, 549 [1st Dept 2021]). Salzman, as a court-appointed evaluator, owed no fiduciary duty to the decedent. In Matter of Govan W. (63 Misc 3d 1221[A], 2019 NY Slip Op 50650[U], *2, 2019 NY Misc LEXIS 2092, *4-5 [Ct Cl , Mar. 15, 2019]), the court clarified that a court evaluator's role is neutral, and that the evaluator is an "independent investigator" who gathers information to aid the court in reaching a determination. In other words, the evaluator is not an advocate for the petitioner or any party and, therefore, does not assume fiduciary obligations toward any party. Thus, the court would be constrained to dismiss the plaintiffs' fourth cause of action insofar as asserted against Salzman for failure to state a cause of action, even if he were not protected by quasi-judicial immunity.

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 11, 2026 order determining Motion Sequence 001 (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"]).

Under New York law, collateral estoppel does not prevent relitigation of a ruling that constituted one basis for a trial-level order where an appellate court affirmed the order without addressing that ruling (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 200 [2008]; see also Niagara Mohawk Power Corp. v Tonawanda Band of Seneca Indians, 94 F3d 747, 754 [2d Cir 1996]). Here, the District Court determined that Salzman was not acting under color of state law within the meaning of 42 USC § 1983. The Second Circuit affirmed the District Court's dismissal of the federal complaint on the alternative ground that the plaintiff alleged insufficient facts to state a claim under 42 USC § 1983, without addressing the "state actor" determination. Although the plaintiff is not collaterally estopped from litigating that issue in the instant action, this court concludes, for the reasons set forth above, that the District Court's determination that Salzman is not a state actor for the purposes of 42 USC § 1983 was correct, and reiterates that Salman is not a state actor for the purposes of any implied cause of action that may have arisen directly under the New York Constitution.

Inasmuch as the federal action has been brought a conclusion because the complaint therein had been dismissed, there is no merit to Salzman's contention that the complaint in this action should be dismissed insofar as asserted against him on the ground that a prior action for the same relief is pending between the plaintiff and him (see CPLR 3211[a][4]; see Lifshitz v Brody, 248 AD3d 476, 477 [1st Dept 2026]; Ember v Denizard, 160 AD3d 537, 538-539 [1st Dept 2018]).

The court finds the plaintiffs' remaining contentions to be without merit.

Accordingly, it is,

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

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

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

This constitutes the Decision and Order of the court.

DATE June 11, 2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.