Central Parking Sys. of N.Y., Inc. v David Rozenholc& Assoc.

2015 NY Slip Op 30926(U)June 3, 2015

Supreme Court, New York CountyDocket Number: 155526/13Judge: Shlomo S. Hagler

Cases posted with a "30000" identifier, i.e., 2013 NY SlipOp 30001(U), are republished from various state and

local government websites. These include the New YorkState Unified Court System's E-Courts Service, and the

Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NEW YORK: PART 17

CENTRAL PARKING SYSTEM OF NEW YORK, INC.,

Plaintiff,

-against-

DAVID ROZENHOLC & AS SOCIA TES, DAVID ROZENHOLC, ESQ., GARY HOROWITZ, ESQ., DAVID PRITCHARD, ESQ., MICHAEL ROBERTS, ESQ., ROBERTS & ROBERTS, DAVID KRISS, ESQ., and KRISS & FEUERSTEIN, LLP,

Defendants.

HON. SHLOMO S. HAGLER, J.S.C.:

INDEXNO. 155526113 Mot. Seq. Nos. 001, 002 DECISION and ORDER

Motions with sequence numbers 001 and 002 are consolidated for disposition.

In this action for legal malpractice, in motion sequence number 001, defendants David

Kriss, Esq. ("Kriss") and Kriss & Feuerstein, LLP ("Kriss & Feuerstein") (together, "Kriss

Defendants") move, pursuant to CPLR 3211 (a) (1), (5) and (7), for an order dismissing the

complaint of plaintiff Central Parking System of New York, Inc. ("plaintiff" or "Centrl

Parking").

In motion sequence number 002, defendants David Rozenholc & Associates ("Rozenholc

& Associates"), David Rozenholc, Esq. ("Rozenholc"), Gary.Horowitz, Esq. ("Horowitz"),

David Pritchard, Esq. ("Pritchard"), Michael Roberts, Esq. ("Roberts") and Roberts & Roberts

(together, "Rozenholc Defendants") move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the

complaint. Plaintiff opposes both motions.

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BACKGROUND

This action pertains to a Jot located at 140 West 28th Street in Manhattan ("Premises").

Non-party 140 West 28th Street Associates, LLC ("Former Landlord"), was the owner of

Premises. On March 16, 2007, Former Landlord executed a lease with non-party 140 West

Associates, LLC ("Former Tenant") (see Abbott Affidavit, sworn to on November 14, 2013

["Abbott Aff."], Exhibit "A" ["Lease Agreement"]).

On March 23, 2007, Former Tenant and plaintiff entered into a management agreement

("Management Agreement"), pursuant to which plaintiff was to operate a parking Jot ("Parking

Lot") at the Premises (id., Exhibit "B"). On August I, 2008, Former Tenant and plaintiff entered

into the an Extension of Management Agreement, which extended the term of the Management

Agreement to July 31, 2009 and, thereafter, on a month to month basis (id., Exhibit "C"). Under

the Management Agreement, plaintiff was to operate the Parking Lot and to remit to Former

Tenant a so-called operating surplus, which was determined by subtracting operating expenses

and plaintiffs management fee of$2,500 from collected parking revenue (id., iJ 11). In 2009,

plaintiff and Former Tenant revised the payment terms, and plaintiff began pre-paying Former

Tenant $20,000 a month on the first ofa month (id., iJ 12). Until October I, 2011, plaintiff

allegedly continued to make all required payments to Former Tenant in full (id., iii! 13-14).

In 2010, Former Tenant allegedly stopped making monthly rent payments to Former

Landlord. In September 2010, Former Landlord commenced a holdover proceeding ("Holdover

Proceeding") against Former Tenant in the Civil Court, County of New York (Index No. L&T

82056/10) (see Shrewsberry Affirmation, dated September 13, 2013 ["Shrewsberry Aff."],

Exhibit "B" [Verified Holdover Petition]). The Verified Holdover Petition named Former

Tenant as respondent and plaintiff as resporident-undertenant (see id.). In that proceeding,

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Former Landlord sought: (l) a judgment of eviction, awarding Former Landlord possession of

Premises; (2) a judgment against Former Tenant for use and occupancy of not less than $50,000

a month from April 24, 2010 1 until the date of the judgment; and (3) an award oflegal fees (id.).

Plaintiff and Former Tenant retained Rozenholc & Associates to represent them in the

Holdover Proceeding (Complaint, 'l]'l] 22-23). Apparently, Pritchard, Horowitz, and Rozenholc of

Rozenholc & Associates were assigned to that case (id., 'I] 26), and Roberts & Roberts worked

with Rozenholc & Associates as co-counsel. Rozenholc & Associates'interposed an answer on

behalfofplaintiffand Former Tenant (id., '1]'1] 26-27; see also Abbott Aff., Exhibit "E").

Plaintiff alleges that, in the Holdover Proceeding, Rozenholc & Associates: (l) did not

advise it that plaintiff and Former Tenant's interests in the Holdover Proceeding were divergent

and conflicting; (2) did not advise plaintiff to retain separate counsel; (3) did not request that

plaintiff waive Rozenholc & Associates'·conflict in representing both parties; (4) did not assert

the defense of plaintiffs continuous payments to Former Tenant; ( 5) throughout the Holdover

Proceeding, did not inform the court that plaintiff "never assumed the role of a tenant" and was

not in possession of Premises, but was merely acting as a manager on behalf of Former Tenant;

and (6) did not move to dismiss the petition as against plaintiff (Complaint, 'l]'l] 24-29, 33).

In the Holdover Proceeding, Former Landlord moved for summary judgment, and Former

Tenant and plaintiff cross-moved to dismiss the complaint, or, in the alternative, for summary

judgment. In a resulting decision and order dated December 21, 2010 ("December 21, 2010

Order"), the court (Engoron, J.), among other things: (1) granted Former Landlord's motion; (2)

denied the cross-motion; and (3) directed the clerk to enter a judgment of possession in favor of

1 Pursuant to Notice of Cancellation of Lease, dated April 19, 2010, Former Landlord notified Former Tenant that the Lease would terminate on April 23, 2010.

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Former Landlord, and to set for inquest "all monetary issues, including rent, additional rent, use

and occupancy, and attorney's fees" (see Shrewsberry Aff., Exhibit "D" [December 21, 2010

Order at 5]). The judgment of possession ("Judgment of Possession") was entered on December

23, 2010.

Rozenholc & Associates filed a Notice of Appeal, and, by an order to show cause, moved

the Civil Court for a stay of enforcement of the December 21, 2010 Order and Judgment of

Possession pending the appeal (see Shrewsberry Aff., Exhibit "E" [Order to Show Cause]).

As a result, the Civil Court: (I) issued a temporary restraining order dated December 29,

2010 staying the enforcement of the December 21, 2010 Order and Judgment of Possession (see

id. [Freed, J.]); (2) pursuant to a decision and order dated January 10, 2011, granted the motion

and ordered "a stay of the execution of the warrant of eviction pending the determination, at a

hearing, of all monetary issues, the amount of the undertaking and the time period for which the

undertaking is to be posted" (id., Exhibit "F" [January 10, 2011 Order at 2] [Mendez, J.]); and

(3) pursuant to a decision and order dated February 18, 2011, clarified the January 10, 2011

Order, among other things, as follows: "as a condition of the stay pending appeal Respondent -

shall pay the Use and Occupancy as determined at the hearing to take place on March 4, 2011 on

a monthly basis as it becomes due ... [and] shall post an undertaking for any monetary award for

'additional rent and attorneys fees' as determined at the hearing to take place on March 4, 2011"

(id., Exhibit "F" [February 18, 2011 Order at 2, quoting December 21, 2010 Order] [Mendez,

J.]).

A hearing was held on March 4, 2011, May 12, 2011, May 17, 2011, May 24, 2011, and

June 20, 2011 (id., Exhibit "G" [a decision and order dated August 31, 2011 at l]). By a

decision and order dated August 31, 2011("August31, 2011 Order"), the court (Chan, J.),

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-------------------------------~· ---·- ---· -~--

among other things: (I) awarded Former Landlord "$82,000 for use and occupancy for each

month [Former Tenant] was in possession on the premises after the lease was terminated"; (2)

"pending appeal, [Former Tenant] was, directed to post an undertaking in the amount of

$738,000.00 for use and occupancy (for the nine month it was in possession post lease

· termination)"; (3) awarded Former Landlord "$224,116.69 ... for attorneys' fees and costs, and

interest thereon from the date of entry of this order and decision"; and (4) directed Former

Tenant "to post an undertaking in the amount of$224,l 16.69" (140 W 28th St. Assocs., LLC v

140 W Assocs., LLC, 32 Misc 3d 1239[A], 2011 NY Slip Op 51638[U], *12 [Civ Ct, New York

County 2011]).

On September 28, 2011, Former Tenant unilaterally assigned to non-party West 28th

Street Ground Lease Corp. ("New Tenant") all of Former Tenant's "right, title and interest in and

to that certain Agreement of Lease dated May 16, 2007'' between Former Landlord and Former

Tenant (Shrewsberry Aff., Exhibit "I"). Former Tenant also unilaterally assigned in writing to

New Tenant "all of its rights, title and interest in" the Holdover Proceeding and authorized New

Tenant "to proceed with the defense of such suit ... and to execute all papers necessary for the

continuation of said suit" (id., Exhibit "H"). Former Tenant also agreed "to fully cooperate with

[New Tenant] in arranging for a substitution of counsel and, at [New Tenant's] election, to

substitution of [it] in and for [Former Tenant] in" the Holdover Proceeding (id.).

On or about October 1, 2011, plaintiff entered into an agreement, entitled "Parking Lot

Management Agreement," with Former Landlord, pursuant to which plaintiff was to manage the

Parking Lot (Abbott Aff., if 22; Exhibit "F" [Parking Lot Management Agreement]; see also

Tonorezos Affirmation ("Tonorezos Aff."), dated August 30, 2013, Exhibit "B" at 1).

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Pursuant to a consent to change attorneys dated October I 0, 2011, Kriss & Feuerstein

was substituted as attorneys of record for Former Tenant and plaintiff (Shrewsberry Aff., Exhibit

"J").

On October 12, 2011, Former Landlord's attorneys, on behalf of Former Landlord, and

Kriss & Feuerstein, on behalf of Former Tenant and plaintiff, entered into a so-ordered

stipul~tion ("Stipulation"), pursuant to which, among other things: (I) the appeal from the

December 21, 20 I 0 Order and Judgment of Possession was withdrawn; (2) all stays were

vacated, and Former Landlord received a right to enforce the Judgment of Possession; (3)

Former Tenant surrendered possession of the Premises; (4) Former Landlord reserved "all rights

jointly and severally as against both [Former Tenant] and (plaintiff] with respect to any monetary

damages including, without limitation, attorneys' fees and use and occupancy"; (5) it was

"expressly understood that [Former Landlord] may seek an appropriate monetaryjudgment as

against [Former Tenant] and [plaintifJJ,jointly [and] severally"; and (6) Former Tenant and

plaintiff"acknowledge[d] that in accordance with [the December 21, 2010 Order and Judgment

of Possession] a final judgment of possession was issued against both Respondents2 -and in

favor of [Former Landlord] - and that the warrant of eviction should issue forthwith and without

any delay" (id., Exhibit "K" [emphasis added]).

Plaintiff alleges that Kriss & Feuerstein: (I) advised it to execute the Stipulation even

though plaintiff "had no obligation to pay rent or use and occupancy" (Complaint, '1[ 45); (2) "did

not advise plaintiff that signing such a stipulation would potentially expose [it] to a claim for use

and occupancy in the amount of$82,000 per month" (id., '1f 46); (3) informed plaintiff"that in

signing the stipulation, the matter would be resolved" (id., '1[.48); and (4) did not advise the court

2 Former Tenant and plaintiff.

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that, from April 2010 to October 1, 2011, plaintiff made all requisite monthly payments to

Former Tenant for a total of$525,812.40 (id., iii! 49-50).

In November 2011, Former Landlord entered into a contract With non-party West 28th

Street Land Owner LLC ("New Landlord") for sale of the Premises (see Kartez Affirmation,

dated November 22, 2013, Exhibit "F"). On February 2, 2012, Former Landlord executed a deed

granting ownership of the Premises to New Landlord (id.). Kriss & Feuerstein represented New

Landlord in this transaction (id.).

On February 3, 2012, Kriss & Feuerstein allegedly sent a letter, signed by Kriss, to

plaintiff, stating that Kriss & Feuerstein was counsel to New Landlord, ahd that New Landlord

became the owner of Premises (see Kriss Affirmation, dated April 24, 2014, iii! 3-4; Exhibit

"A").

On April 5, 2012, in the Holdover Proceeding, Former Landlord made a motion seeking

an order: (1) directing entry of a monetary judgment as against both Former Tenant and plaintiff,

jointly and severally, for use and occupancy in the amount of$492,l 13.63 plus interest; and (2)

directing entry ofa monetary judgment as against Former Tenant only, for attorneys' fees and

costs in the.amount of$224,l 16.69 in accordance with the August 31, 2011 Order (see

Shrewsberry Aff., Exhibit "L" [Notice of Motion ahd Affirmation in Support]). Former Tenant

and plaintiff did not oppose Former Landlord's motion.

By a decisi~n, order, and judgment dated April 24, 2012 (April 24, 2012 Order and

Judgment), the court (Chan, J.) granted Former Landlord's motion on default and ordered that:

(I) Former Landlord "shall have a money judgment against" Former Tenant and plaintiff,

"jointly and severally, in the amount of $492, 113.63 for unpaid use and occupancy pursuant to

this Court's prior orders"; and (2) Former Landlord "shall have an additional money judgment as

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against [Former Tenant] only in the amount of$224,l 16.69 representing the attorneys' fees and

costs awarded to [Former Landlord] in accordance with this Court's prior orders" (id ,.Exhibit

"M").

At some point, non-party Tanenbaum Helpem Syracuse & Hirschtritt, LLPP

("Tanenbaum") was substituted as counsel for plaintiff.

Plaintiffs appeal from the April 24, 2012 Order and Judgment was dismissed because

that Order and Judgment were entered on default and, hence, were nonappealable (140 W. 28th

St. Assoc., LLC v 140 W. Assoc., LLC, 38 Misc 3d 127[A], 2012 NY Slip Op 52360[U], *I [App

Term, !st Dept 2012]).

Plaintiff alleges that: (I) a judgment in the amount of$492,l 13.63 was entered against it

and Former Tenant, jointly and severally; (2) "Former Tenant defaulted on its obligation to pay

any part of the judgment and has no assets"; and (3) plaintiff paid the entire amount of the

judgment, in addition to all the monthly_ payments that it had made to Former Tenant (Complaint,

irir 54-56).

On August 20, 2012, New Landlord and plaintiff entered into an agreement, entitled

"First Amendment to Parking Lot Management Agreement" ("Amendment") pursuant to which,

among other things: (I) the parties amended the management agreement, dated October I, 2011,

between Former Landlord and plaintiff; (2) extended the term of the agreement to September 30,

2017; and (3) specified monthly payments that plaintiff had to make to New Landlord (see

Tonorezos Aff., Exhibit "B"). The Amendment also, in relevant part, provided that:

"The Owner and Manager3 hereby represent and warrant to each that:

•••

'Owner is New Landlord, and Manager is plaintiff (see id at I).

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c. Neither Owner nor Manager has any claims against the other, nor against either party's ... agents, consultants, attorneys, representatives ... and any other individuals and entities claiming or acting by through, under· or in concert with each respective party hereto in anyway arising out of the Management Agreement or events prior to Owner acquiring title to the Parking Lot including any litigation by Former Owner4 against Manager"

(id, Exhibit "B" if 4 [ c ]). At the time of drafting and execution of Amendment, Kriss &

Feuerstein were attorneys for New Landlord (id., if 19).

Plaintiff alleges four causes of action against all defendants: (!) legal malpractice; (2)

breach of fiduciary duty; (3) negligence, based on failure to advise the court in the Holdover

Proceeding of plaintiffs monthly payments to Former Tenant and to assert defenses on behalf of

plaintiff, as a result of which plaintiff was damaged in the amount of$492,113.63 plus attorneys'

fees; and (4) negligence, based on failure to ensure that plaintiff was given credit for the

payments it made to Former Tenant from April 2010 to October 2011 and failure to advise the

court in the Holdover Proceeding that plaiiitiff continued to make monthly payments to Former

Tenant, as a result of which plaintiff was damaged in the amount of$525,812.40 plus interest

and attorneys' fees, costs, and disbursements.

Defendants now move to dismiss the complaint.

DISCUSSION

A motion to dismiss, pursuant to CPLR 3211 (a) (1), "may be appropriately granted only

where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively

establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN Y, 98 NY2d 314,

326 [2002]).

•Former Owner is Former Landlord (see id).

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On a motion to dismiss, pursuant to CPLR 3211 (a) (7), the court "assumes the truth of

the complaint's material allegations and whatever can be reasonably inferred therefrom [citation

omitted]. The motion should be denied if'from [the pleading's] four comers factual allegations

are discerned which taken together manifest any cause of action cognizable at law"' (McGill v

Parker, 179 AD2d 98, I 05 [I st Dept 1992], quoting Guggenheimer v Ginzburg, 43 NY2d 268,

275 [1977]).

CPLR 3211 (a) (5) provides, in relevant part, that "the cause of action may not be

maintained because of ... release."

Legal Malpractice

"To establish a cause of action for legal malpractice, the plaintiff must show that the

attorneys were negligent, that their negligence was the proximate cause of the plaintiffs

damages, and that the plaintiff suffered actual damages as a direct result of the attorneys'

actions" (Franklin v Winard, 199 AD2d 220, 221 [!st Dept 1993]; see also Leder v Spiegel, 31

AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257[2008]). "[A]

party must show that an attorney failed to exercise the reasonable skill and knowledge commonly

possessed by a member of the legal profession" (Arnav Indus., Inc. Retirement Trust v Brown,

Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300, 303-304 [2001]; see also Marshall v

Nacht, 172 AD2d 727, 727 [2dDept 1991]). "In order to establish proximate cause, plaintiff

must demonstrate that 'but for' the attorney's negligence, plaintiff would either have prevailed in

the matter at issue, or would not have sustained any 'ascertainable damages"' (Leder, 31 AD3d

at 267-268; see also Franklin, 199 AD2d at 221).

"In order to recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of

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~this duty proximately caused plaintiff to sustain actual and ascertainable damages"

(Dombrowski v Bulson, 19 NY3d 347, 350 [2012] [internal quotation marks and citation

omitted]).

Rozenholc Defendants' Motion

Plaintiff alleges that Rozenholc Defendants, without obtaining informed consent from

plaintiff and Former Tenant, asslimed their joined representation even though their interests were

divergent and conflicting (Complaint, iii! 23-25). Plaintiffs other claims against the Rozenholc

Defendants are that they: did not move to dismiss the petition as against plaintiff; did not

interpose defenses unique to plaintiff, such as the defense of plaintiffs continuous and timely

monthly 'payments to Former Tenant; did not distinguish in the answer between plaintiff and

Former Tenant "and effectively treated them as though they were both tenants"; and did not

inform the civil court. that plaintiff. had no possessory interest in the Premises, but was merely

acting as a manager of the Parking Lot (Complaint, iii! 26-28).

An action for legal malpractice requires a showing that the negligence was the proximate

cause of the plaintiffs loss or injury (Pellegrino v File, 291AD2d60, 63 [!st Dept 2002]).

Plaintiff claims that it was damaged because the court entered a judgment in the amount of

$492,113.63 for use and occupancy against it. However, there was no claim for use and

occupancy asserted against plaintiff during the entire duration that they were represented by the

Rozenholc Defendants. (See Complaint iii! 21, 38, 41, 45). The Rozenholc Defendants

concluded their representation of plaintiff on October I 0, 2011. Two days later, after plaintiff

was represented by successor counsel, plaintiff entered into the Stipulation on October 12, 2011,

which for the first time exposed plaintiff to liability for payments of use and occupancy.

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(Complaint iJ45). Based on the Stipulation, New Landlord subsequently moved for summary

judgment for use and occupancy against Former Tenant and plaintiff. It is alleged that plaintiffs

new attorney, Kriss & Feuerstein, did not oppose the motion and a default judgment in the

amount of $492, 113.63 was entered against Tenant and plaintiff, jointly and severally.

(Complaint iJ55). Former Tenant subsequently defaulted on its payment leaving plaintiff to pay

the entire judgment. Inasmuch as the damages incurred by plaintiff were a direct result of the

Stipulation and a subsequent.summary judgment motion, which occurred after the Rozenholc

Defendants concluded their representation of plaintiff, they could not have been the proximate

cause of plaintiffs damages and the claims against them must be dismissed, regardless of

whether negligence is established (Pellegrino at 63).

Plaintiff also maintains that there was a conflict of interest because the Rozenholc

Defendants represented both Former Tenant and plaintiff. However, "[a] conflict of interest,

even ifa violation of the Code of Professional Responsibility, does not by itself support a legal

malpractice cause of action" (Schafrann v NV. Famka, Inc., 14 AD3d 363 [!st Dept 2005]). As

stated previously, any damages asserted by plaintiffs occurred only after the conclusion of

representation by the Rozenholc Defendants, and as a direct result of plaintiff entering into the

Stipulation on October 12, 2011, when represented by new counsel Kriss & Feuerstein.

Therefore, any alleged conflict could not have caused plaintiffs damages, and the complaint

must be dismissed as to the Rozenholc Defendants.

Kriss Defendants' Motion

Kiiss Defendants contend that plaintiffs claims as against them are barred by paragraph

4 (c) of the Amendment, pursuant to which plaintiff released its claims against them.

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The first issue is whether paragraph 4 ( c) of Amendment is a release. The second issue

is, even if it is a release, did plaintiff intend to release the Kriss Defendants from its legal

malpractice claim. "No particular form of words is necessary to constitute a valid release, so

long as an intention to renounce a claim or discharge a debt is evidenced" (Tams-Witmark Music

Lib., Inc. v New Opera Co., 272 App Div 342, 345 [!st Dept 1947], affd 298 NY 163 [1948]).

"A release is a provision that intends a present abandonment of a known right or claim"

(McMahan & Co. v Bass, 250 AD2d 460, 461 [!st Dept 1998]).

"[A) general release is governed by principles of contract law" (Mangini v McClurg, 24

NY2d 556, 562 [1969); see also Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 41 [2nd Dept

1983) ["a release is merely a species of contract and, as such, its construction is governed by the

same principles of law applicable to other contracts"]). If part of a larger document, a release

needs to be construed in the context of the whole document (see e.g. Corhil/ Corp. v S. D. Plants,

Inc., 9 NY2d 595, 598 [1961]). "Although the effect ofa general release, in the absence of fraud

or mutual mistake, cannot be limited or curtailed, its meaning and coverage necessarily depend,

as in the case of contracts generally, upon the controversy being settled an.d upon the purpose for

which the release was actually given. Certainly, a release may not be reaa to cover matters

which the parties did not desire or intend to dispose of" (Cahill v Regan, 5 NY2d 292, 299

[1959) [citation omitted]). "A release may not be read to cover matters which the parties did not

intend to cover" (Kaminsky v Gamache, 298 AD2d 361, 362 [2d Dept 2002) quoting Gale v

Citicorp, 278 AD2d 197 [2dDept 2000).

Here, it is inconclusive whether the parties intended paragraph 4( c) to be a release. The

Amendment is the first contract between plaintiff and New Landlord. Its other clauses pertain to

the term of this agreement (see Abbott Aff., Exhibit "O" [Amendment, "if!]), the new

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compensation terms (id., if 2), and plaintiffs agreement to cure certain violations involving

Parking Lot (id., if 3). Paragraph 4 of the Amendment begins with "[t]he Owner and Manager

hereby represent and warrant to each" and provides that:(!) the "Amendment is a valid, binding,.

enforceable obligation" (Amendment, if 4 [a]); (2) each party "has the capacity, right, power and

authority to execute this Amendment and to perform its respective obligations" (id., if 4 [b ]); and

(3) neither party "has any claims against the other, nor against either party's ... attorneys" in

connection with the Management Agreement or stemming from "any litigation by Former Owner

against Manager" (id., if 4 [ c ]). Paragraph 4 ( c) does not contain language of plaintiff

abandoning, relinquishing, surrendering, or renouncing any claims that it may have against

Former Landlord or its attorneys (see Tams-Witmark Music Lib., Inc., 272 AD at 345; see also

McMahan & Co, 250 AD2d at 461; cf Wells v Shearson/Lehman/American Express, 72 NY2d

11, 16 [1988] ["[t]he release provided that: 'all claims ... that arise now or hereafter out of the

Action ... shall be compromised, settled, released and dismissed with prejudice"'] [emphasis

added]; The Coby Group, LLC v Kriss, 2008 NY Slip Op 3 l 855[U], *3 [Sup Ct, NY County

2008], affd 63 AD3d 569 [!st Dept 2009] [plaintiff'"does hereby: release [certain parties] and

their agents and attorneys from any and all liability and accountability ... with respect to any

and all actions, causes of action, suits ... claims and demands whatsoever, in law or in

equity"'] [emphases added]). Read in the context of the Amendment, and absent conclusive

language to the contrary, the paragraph in question may merely be a representation by plaintiff

and New Landlord that they have no claims against each other stemming from either the

Management Agreement that they are renewing or from any lawsuits that Former Landlord

brought against plaintiff rather than an actual release.

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Even if it could be construed as a release, it cannot be said as a matter of law that Plaintiff

intended to release the Kriss Defendants from its legal malpractice claims against them. Read in

the context of the entire document, it is certainly questionable whether Plaintiff intended to

release its former attorneys, the Kriss Defendants, who were now representing New Landlord,

from its legal malpractice claim. Furthermore, Plaintiff claims that they were unaware that the

Kriss defendants were now representing New Landlord so they could not have been the intended

beneficiary of any purported release. Accordingly, Kriss Defendants' argument that plaintiffs

claims against it are barred by paragraph 4 ( c) of the Amendment fails.

Malpractice Claim

It is undisputed that Kriss Defendants entered into the Stipulation, pursuant to which

Former Landlord received a right to seek an entry of monetary judgment against plaintiff, a

nominal party to the Holdover Proceeding. Plaintiff also claims that Kriss Defendants failed to

oppose Former Landlord's motion made on April 5, 2012, which was granted on default. Kriss

Defendants have not conclusively demonstrated that they were no longer plaintiffs attorneys at

the time of Former Landlord's motion. A monetary judgment of$492,l 13.63 was entered

against, and satisfied by, plaintiff. Hence, plaintiff has adequately pied a cause of action for

legal malpractice, which survives Kriss Defendants' motion (see Franklin, 199 AD2d at 221;

Leder, 31 AD3d at 267-268).

Other Claims

The other causes of action for breach of fiduciary duty and negligence are based on the

same facts as the legal malpractice claim and allege similar damages. Hence, they are dismissed

as duplicative (JnKine Pharm. Co., Inc. v Coleman, 305 AD2d 151, 152 [1st Dept 2003]).

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CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that, in motion sequence number 00 I, the motion of defendants David Kriss,

Esq. and Kriss & Feuerstein, LLP, pursuant to CPLR 3211 (a)(!), (5)and (7),,is granted only to

the extent that the second, third, and fourth causes of action are dismissed, and the motion is

otherwise denied, and the action is continuing with respect to the first cause of action for legal

malpractice; and it is further

ORDERED that defendants David Kriss, Esq. and Kriss & Feuerstein, LLP is directed to

serve an answer to the complaint within 20 days after service of a copy of this order with notice

of entry; and it is further

ORDERED that, in motion sequence number 002, the motion of defendants David

Rozenholc & Associates, David Rozenholc, Esq, Gary Horowitz, Esq, David Pritchard, Esq.,

Michael Roberts, Esq., and Roberts & Roberts, pursuant to CPLR 3211 (a) (I) and (7), is

granted, and the complaint is dismissed as against these defendants, and the Clerk is directed to

enter judgment accordingly.

Dated: June 3, 2015

ENTERo~

J.S.C. ' C W-11\iii;._·_-_pc)_..._s.;n)IAGLER. U. ·

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