FKB’s Rachel Aghassi and Jason H. Seiler successfully obtained dismissal of two separate actions, one in the New York Supreme Court, Essex County and the other in Supreme Court, Saratoga County, stemming from the same set of facts as against the same defendant-attorney, pursuant to CPLR §§ 3211, 3215(c), and 3216.  In what many would consider to be a rarity, both dismissals were obtained on procedural grounds.

This matter stems from FKB’s client’s involvement in a corporate partnership (“Partnership”) that endeavored to purchase certain real estate in upstate New York.  FKB’s client represented one half of the Partnership, the Plaintiff’s business partner, and was involved with the drafting and preparation of the Partnership agreement (“Agreement”).  After the Plaintiff was unable to contribute his share of funds toward the purchase of the property, the Agreement was altered to reflect new financial arrangements, giving Plaintiff’s business partner a controlling interest in the Partnership and thus in the Property.

Plaintiff thereafter took a plea deal after stealing $2.2 million from 16 people in a Ponzi scheme, serving 5 years in prison. Plaintiff thereafter claimed that the victims of his scheme were actually investors in the property who he was unable to compensate because of the amended Agreement.

Plaintiff sued FKB’s client in Essex County in 2013 for a number of fraud based claims sounding in legal malpractice, arguing that FKB’s client represented the Partnership as well as himself. Simultaneously, Plaintiff’s victims sued him civilly in Saratoga County in early 2014 for allegedly using their investment funds toward the purchase of the Property that was the subject of the Essex Action.  Plaintiff attempted to implead FKB’s client in a third-party action in Saratoga County, alleging virtually the same causes of action that had been alleged in the Essex Action.

FKB moved to dismiss Plaintiff’s third-party claims in Saratoga County pursuant to CPLR § 3215(c) and CPLR §§ 3211(a)(1), (4), (5), (7) and (8), alleging that Plaintiff had not only failed to properly serve FKB’s client within the prescribed time, failed to obtain a judgment within one year of default, but also that the third-party claims were duplicative of the Essex County Action and meritless in any event. In an order issued on July 2, 2019, Justice Ann C. Crowell agreed that Plaintiff had never established personal jurisdiction over FKB’s client and dismissed the third party action with prejudice. 

After a number of years including intensive discovery and associated litigation in Essex County, during which Plaintiff continued to evade FKB’s efforts to obtain necessary discovery, FKB moved to dismiss for failure to prosecute pursuant to CPLR § 3216 after the expiration of a 90-day notice to file the note of issue.  The motion delineated Plaintiff’s long history of evasion and delay, specifically focusing on the fact that despite a case-life of six years, Plaintiff had not filed a Note of Issue and was seemingly uninterested in moving the case toward a conclusion.  On October 9, 2019, Justice Robert J. Muller agreed, granting FKB’s motion to dismiss for failure to prosecute.

Obtaining dismissal on procedural grounds is often a difficult task and is rarely granted.  It is no secret that courts generally prefer dismissing matters on the merits.  Obtaining procedural dismissals on two separate, yet related cases is even rarer still.  However, due to Rachel Aghassi and Jason Seiler’s relentless efforts, clear and precise motion practice, key strategic planning, and impeccable timing, FKB was able to achieve this elusive feat.

If you have any questions about this decision, or the defense of attorneys in general, please contact Rachel Aghassi or Jason H. Seiler.


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