COUNTY BARBARA - img1.wsimg.com

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLK

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BARBARA PORTER, BARBARA PORTER as Index No. 622758/18

the ADMINISTRATOR OF THE ESTATE OF

PHILIP PORTER, III, and THE ESTATE OF

PHILIP PORTER, III,

Plaintiffs, Return Date: March 21, 2019

-against-

JEANNE R. BURTON, ESQ.,

Defendant.

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REPLY MEMORANDUM OF LAW

L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P.

Attorneys for Defendant

JEANNE R. BURTON, ESQ.

1001 Franklin Avenue

Garden City, New York 11530

(516) 294-8844

FILED: SUFFOLK COUNTY CLERK 03/20/2019 01:18 PM INDEX NO. 622758/2018

NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 03/20/2019

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TABLEOF CONTENTS

Page

PRELIMINARY STATEMENT ............................................................................................... 1

POINT I

PLAINTIFFS HAVE NOT COME CLOSE TO

DEMONSTRATING A REASONABLE EXCUSE FOR

THEIR INEXPLICABLE FAILURE TO TIMELY FILE

AND SERVE A COMPLAINT..................................................................................... 1

POINT II

PLAINTIFFS' PROPOSED CAUSES OF ACTION ARE

BASELESS AND WITHOUT MERIT......................................................................... 5

CONCLUSION.......................................................................................................................... 24

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PRELIMINARY STATEMENT

This memorandum of law is submitted in reply to the opposition of plaintiffs,

Barbara Porter, Barbara Porter as the Administrator of the Estate of Philip Porter, III ("Ms.

Porter") and the Estate of Philip Porter III (the "Estate") (collectively, "Plaintiffs"), to the motion

of the defendant, Jeanne R. Burton, Esq. ("Defendant"), for an Order pursuant to CPLR 3012(b),

dismissing this lawsuit due toPlaintiffs'

failure to timely file and serve a complaint.

First and foremost,Plaintiffs'

opposition should be rejected by this Court since it

was not timely served. Specifically, Defendant's motion was originally returnable on March 7,

2019, but this Court did not assign the instant motion to the DCM Part until March 12d'. At that

time, the Court made the motion returnable the next day, March 13th. InStead of reaching out to

our office and requesting an adjournment or an extension of time to serve opposition papers,

Plaintiffs served their opposition (annexed to which was a proposed verified complaint), on the

afternoon of March 12d'. For these reasons, Defendant submits thatPlaintiffs'

opposition be

disregarded accordingly.

In the alternative, in the event this Court decides to considerPlaintiffs'

opposition, it is respectfully submitted that Plaintiffs have utterly failed to demonstrate: (i) a

reasonable excuse for their failure to timely file and serve a complaint; or (ii) a potentially

meritorious cause of action.

POINT I

PLAINTIFFS HAVE NOT COME CLOSE TO DEMONSTRATING A REASONABLEEXCUSE FOR THEIR INEXPLICABLE FAILURE TO TIMELY FILE AND SERVE A

COMPLAINT

In her affidavit, Ms. Porter does not even attempt to explain her failure to timely

file and serve a complaint. Rather, Plaintiffs rely solely upon the affirmation of their counsel,



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which lacks any probative value. See, McCovey v. Williams, 105 A.D.3d 819, 962 N.Y.S.2d 690

(2d Dep't 2013) ("However, in the instant case, the plaintiffs submission in support of the

unpleaded cause of action was an affirmation of an attorney with no personal knowledge of the

facts. That affirmation was not sufficient to raise a triable issue of fact to defeat the defendant's

prima facie showing of entitlement to judgment as a matter of law with respect to the allegations

in the plaintiffs pleadings"); Lampkin v. Chan, 68 A.D.3d 727, 891 N.Y.S.2d 113 (2d Dep't

2009) ("The defendants interposed only an affirmation of their attorney who...lacked knowledge

of the facts"); Dupree v. Voorhees III, 68 A.D.3d 810, 891 N.Y.S.2d 422 (2d Dep't 2009) ("The

affidavits submitted in opposition were of the plaintiff, the attorney who was substituted for the

appellant in the matrimonial action upon the appellant's release from representation, and the

plaintiffs counsel on this motion and appeal. None of those parties possessed personal

knowledge of what transpired on the day in question").

A review of this affirmation, coupled with the relevant evidence, reveals that it

utterly fails to establish a reasonable excuse forPlaintiffs'

failure to timely file and serve a

complaint.

Defendant served its demand for a complaint (the "Demand") on December 13,

2018. A copy of the Demand is annexed to the affirmation of Matthew J. Bizzaro, Esq. dated

February 14, 2019 (the "Bizzaro Aff.") as Exhibit 3.

Plaintiffs'counsel requested an extension of time to do so, and the parties agreed

thatPlaintiffs'

time to file and serve a complaint be extended until January 24, 2019. See,

Bizzaro Aff., Exhibit 4.

Plaintiffs'counsel never requested a further extension of time prior to the January

24thdeadline.

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Moreover,Plaintiffs'

counsel did not even contact our office when the instant

motion was filed on February 14, 2019, a full three weeks (21 days) after the stipulation ended.

To clarify,Plaintiffs'

counsel made no attempt to contact my office during that

three week period. In fact, the first time I heard fromPlaintiffs'

counsel's office was on March

5"', when his assistant contacted me asking for an extension of time to file and serve the

complaint (not opposition papers). A copy of this e-mail is annexed to the Reply Affirmation of

Matthew J. Bizzaro, Esq. dated March 19, 2019 ("Reply Aff.") as Exhibit 1.

I responded to this e-mail by rejecting his request to file and serve a complaint,

but as a professional courtesy, I offered him an extension of time to serve opposition until March

12tl', if he agreed to extend Defendant's time to reply until March 27tl'. See Reply Aff., Exhibit

2.

Plaintiffs'counsel never responded to my e-mail. Instead, knowing that the

instant motion had been assigned to the DCM Part and made returnable on March 13ti', he served

his opposition papers in the late afternoon of March 12 .

In his affirmation,Plaintiffs'

counsel states:

In the month of February, I was forced to undergo major oral

surgery involving bone grafts, sinus lifts, several extractions and

perhaps a half-dozen root canal surgeries. Without getting into too

much detail, these procedures were necessitated and the byproduct

of a car accident years ago in which I suffered a jaw and orbital

fracture that caused bone loss in my upper jaw. In the month of

February, I counted at least 100 injections of Novocain and still

dealt with a very heavy practice including jury selection

concerning a murder in the second-degree indictment (Emphasis

Added).

While I am empathetic toPlaintiffs'

counsel's condition, the fact remains that he

failed to explain why the procedures he underwent in February prevented him from abiding by

the stipulation he entered into wherein it was agreed that the complaint would be filed and served

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by January 24, 2019, or why he failed to even contact me to request additional time to do so,

either: (i) before the January24th

deadline; or (ii) when Defendant filed the instant motion on

February14th

It is particularly odd thatPlaintiffs'

counsel did not attempt to contact me until

March5th

(Via hiS aSSistant) which was 39 days after the stipulation ended, especially when he

admits in his affirmation that he continued to deal with "a very heavy practice including jury

selection...."See, Affirmation of Robert J. Del Col, Esq., dated March 12, 2019 ("Del Col

Aff."), paragraph "8".

Furthermore, it is worth noting that the proposed complaint annexed toPlaintiffs'

opposition was verified on March 5, 2019, while the opposition was not served until the late

afternoon of March12th

(the day before the original return date), as this further demonstrates the

sharp tactics employed to attempt to defeat the instant motion.

Finally,Plaintiffs'

counsel's claim that Defendant will not suffer any prejudice if

Plaintiffs are permitted to serve a complaint at this juncture is absurd. In fact, if Plaintiffs are

allowed to proceed with this lawsuit, Defendant will be compelled to incur a tremendous amount

of additional time and resources defending a meritless claim (as discussed below).

Based upon the foregoing, it is respectfully submitted that since Plaintiffs have

failed to demonstrate a reasonable excuse for their failure to timely file and serve a complaint,

this lawsuit should be dismissed. See, Khamis v. Corporate Transp. Group, Ltd., 135 A.D.3d

825, 23 N.Y.S.3d 375 (2d Dep't 2016) ("The Supreme Court providently exercised its discretion

in granting the defendant's motion, as the plaintiff failed to proffer a reasonable excuse for her

delay in serving the complaint upon the defendant"); Lobel v. Hilltop Village Cooperative, No. 4,

138 A.D.3d 938, 28 N.Y.S.3d 633 (2d Dep't 2016) ("Here, the Supreme Court providently

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exercised its discretion in determining that the plaintiff failed to show a reasonable excuse for the

delay in serving the complaint"); McIntosh v. Genesee Valley Laser Centre, 121 A.D.3d 1560,

993 N.Y.S.2d 844 (4th Dep't 2014) ("We conclude that plaintiff failed to provide any reasonable

excuse for the delay...").

POINT II

PLAINTIFFS' PROPOSED CAUSES OF ACTION ARE BASELESS AND WITHOUTMERIT

Plaintiffs'counsel argues that this matter is "an important

case"that involves "a

new and novel question that may have statewideimplications"

(see, Del Col Aff., paragraph

"6"), clearly suggesting that Defendant should have acted in violation of the current Appellate

Division Rule 7.2, governing the manner in which AFC's are directed to practice in the State of

New York (annexed). Yet, counsel fails to attempt to explain why he did not file and serve the

complaint by the agreed upon January 24, 2019 deadline, or even attempt to contact our office to

request another extension of time to do so until March 5, 2019 (two days prior to the original

return date of the instant motion, and 39 days after the stipulation ended). If, however, this Court

determines that Plaintiffs somehow demonstrated a reasonable excuse, this lawsuit should still be

dismissed since their proposed claims are contradicted by the relevant documentary evidence and

are meritless.

The only "new and novel question which may have statewideimplications"

is

whether Plaintiffs can convince the Court that Ms. Porter who was an adversarial party, could

unilaterally fire a judicially appointed attorney for the child, as she attempted to do, as a strategy

to prevent the attorney from being able to respond to the motion to dismiss. In addition, another

Notably, Plaintiffs cite the case of Weiss v. Kahan, 209 A.D.2d 611, 619 N.Y.S. 2d 112 (2d Dep't 1994), where thecourt determined that the lawsuit should be dismissed on the grounds that plaintiffs failed to demonstrate a

reasonable excuse for their delay in serving the complaint.

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"new and novelquestion"

presented is whether the Court will condone the use of coercive threats

and other claims of ethical violations against a court-appointed attorney for the child, as a way

for family lawlitigants'

attorneys to practice in the State of New York.

Initially, Defendant notes that whilePlaintiffs'

summons with notice states that

Plaintiffs'action includes claims for the intentional infliction of emotional distress and the

negligent infliction of emotional distress (see, Bizzaro Aff., Exhibit 1), these claims are not

included in the proposed complaint. For this reason, Defendant does not address these claims in

response toPlaintiffs'

opposition.

A. Plaintiffs' Claims Are Contradicted By The Relevant Documéñtary Evidence

All of the allegations contained in the proposed complaint are flatly contradicted

by the relevant documentation.

In the underlying Family Court matters involving Philip J. Porter, III (deceased)

("PJ"), PJ's father (deceased), his paternal grandmother, Camille Porter, and his mother, Ms.

Porter, (the "Family Court Case"), Ms. Porter filed an order to show cause on August 20, 2018

(almost 5 months after PJ's death on March 25, 2018), wherein she sought, in part, the removal

of Defendant as Attorney for the Child ("AFC"), and in doing so, asserted many of the same

unfounded allegations set forth in her proposed complaint.

Clearly, when Ms. Porter filed this order to show cause, the Family Court no

longer had jurisdiction over this case since PJ had reached the age of 18 on March 6, 2018.

Subsequently, Ms. Porter and her attorney spent almost one year making frivolous

allegations that Defendant was liable for legal malpractice and wrongful death, and committed

various ethical violations. At the same time, Ms. Porter and her attorney argued that Defendant

was not permitted to respond to these absurd allegations, and could not opine as to whether

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Family Court had jurisdiction over same. As set forth above, Ms. Porter went so far as to seek

removal of the AFC and to be granted the authority to hire a replacement AFC. This was her

attempt to try and prevent the Defendant from being allowed to submit an affirmation with

regard to the pending motion to dismiss on jurisdictional grounds and to refute the allegations of

malpractice, wrongful death and ethical violations.

Defendant submitted an Affirmation in Response to Ms. Porter's order to show

cause, wherein she addressed the baseless allegations asserted against her and properly argued

that the Family Court no longer had jurisdiction after PJ's death. See, Exhibit 3.

On November 30, 2018, the Honorable Bernard Cheng, J.F.C. issued a Decision

and Order deferring Ms. Porter's request to remove Defendant as AFC until after the Court

rendered a decision on a motion filed by Camille Porter to dismiss the neglect proceeding for

lack of jurisdiction commenced against her by Ms. Porter. See, Exhibit 4. In doing so, Judge

Cheng found in relevant part as follows:

The Court rejects Barbara Porter's assertion that because it appears

that no formal order of appointment was ever issued, "it is possible

that Ms. Burton has been inappropriately appearing in this matter

since January 13,2017."

Review of the court file shows that

Jeanne Burton was appointed as P.J.'s attorney on February 10,

2017 by the Court Attorney Referee presiding over V-00363-17 at

that time. The digital recording of the case proceedings on

February 10, 2017 reveals that during the proceeding, the Court

Attorney/Referee repeatedly voiced her intention to assign an

attorney to represent P.J. and then verbally notified the attorneys

and parties on the record that she was appointing Jeanne Burton to

represent P.J. Further, this Court issued a written order appointingJeanne Burton as P.J.'s attorney on the custody petitions V-00636-

17 and V-00637-17 on April 21, 2017. This written order also

specified that it was

Ordered, that during the pendency of this matter, Jeanne R.

Burton, Esq., is hereby appointed as Attorney for the Child

as to new petitions that are filed within this Court that relate

to the child(ren) listed herein; and it is further

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Ordered that Jeanne R., Burton, Esq. shall be served with all

pleadings, notices, requests for adjournment and other

documents filed with the Court by another party to the

proceeding; and it is further Ordered that the appointment of

Jeanne R. Burton, Esq. shall continue through any appeal of

an order or judgment of the Court unless relieved by the

Appellate Division.

As such, it is clear to this Court that effective February 10, 2017,Jeanne R. Burton, Esq., was the properly appointed attorney for

P.J. Porter and this appointment was reiterated by this Court's

written order of April 21, 2017.

Id, p. 6.

Clearly, Judge Cheng's decision anticipated a future ruling on the issue of

jurisdiction post PJ's18*

birthday, as was set forth in the opposition papers. There would be no

need to rule on any removal, since everyone was aware that the case was over, except for Ms.

Porter and her attorney.

Additionally, on November 7, 2018, Defendant met with Harriet R. Weinberger,

Esq., who is the Director of the Supreme Court Appellate Division, Second Judicial Department,

the Office Of Attorneys For Children ("Office Of AFC"). See, Defendant's Affidavit, sworn to

on March 19, 2019, paragraph"2."

At that time, she was asked to respond to a complaint filed

against her by Michael Porcelain (Ms. Porter's fiancé) concerning the Family Court Case. Id,

paragraph"3."

In response, Defendant sent to Ms. Weinberger "a very largebox"

containing the

litigation motions with the exhibits to the Panel in Brooklyn. Id

On March 7, 2019, Ms. Weinberger provided Defendant with a copy of a letter

dated March 7, 2019 sent to Mr. Porcelain. The letter to Mr. Porcelain stated as follows:

Please be advised that this office has concluded its inquiry into

your complaint against Jeanne Burton, Esq.

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Our investigation reveals that Ms. Burton's representation has

been is in [sic] accordance with statutory standards and present

case law. Accordingly, the matter has now been closed. (Emphasis

Added.)

See, Exhibit 5.

As explained in Defendant's affidavit, this clearly was the complaint of Ms.

Porter by her fiancé concerning the Defendant's representation of PJ in the Family Court Case.

This determination made by the Office Of AFC demonstrates that all of the allegations asserted

against Defendant in the proposed complaint are entirely without merit.

The next day, March 8, 2019, Judge Cheng issued a Decision and Order in the

Family Court Case granting Camille Porter's motion to dismiss the neglect proceeding

commenced against her by Ms. Porter, dismissing Ms. Porter's contempt application against

Camille Porter, and denying Ms. Porter's application to remove Defendant as AFC as moot, due

to the dismissal of the neglect petition and contempt petition. Clearly, Judge Cheng found that

jurisdiction ceased on March 6, 2018, and Defendant's representation ceased, except for motion

practice seeking to create jurisdiction with no valid theory of law to support the absurd claims

being asserted by Ms. Porter.

Thereafter, on March 11, 2019, Judge Cheng issued a Corrected Decision and

Order. See, Exhibit 6.

In his decision Judge Cheng noted the following:

Despite the Family Court's jurisdiction to adjudicate the neglect

petitions filed against the Mother and Grandmother after PJ turned

eighteen, the Court, the attorneys and the parties fully expected all

the petitions and applications involving PJ to be withdrawn when

PJ turned eighteen. This expectation was based in the definition of

a neglected child as being "a child less than eighteen years ofage"

(F.C.A. §1012(f)), as well as the usual and regular practice of

ending article 10 case orders when a subject child reaches his or

her eighteenth birthday...

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In this matter, in recognition that the neglect proceedings would

terminate when PJ turned eighteen, the attorneys and parties

focused upon providing voluntary therapeutic services to PJ prior

to this birthday, with the hope that PJ would benefit from these

services and that family members would repair their relationships.

It is significant to note that PJ was not placed by the Court to live

with his Grandmother in these neglect cases. PJ elected on his

own to live with his Grandmother when he was sixteen, manymonths before the first neglect petition was filed. As such, there

was no placement to be extended when PJ turned eighteen. The

Court also notes that the Department of Social Services Child

Protective Services [DSS/CPS] conducted an investigation

pursuant to F.C.A. §1034 in February and March of 2017 but did

not file neglect cases against either of PJ's parents or his

Grandmother, and DSS is not a party to the cases before the Court.

The neglect cases filed on PJ's behalf arose out of the previouslyfiled custody and family offense petitions.

In sum, the parties did not envision the Court continuing the

neglect cases after PJ's eighteenth birthday. Discontinuing the

neglect cases after PJ's eighteenth birthday was anticipated. The

Mother's position changed, however, when PJ passed away on

March 25, 2018.

ld., pp. 5-6.

Notably, Judge Cheng referenced Ms. Porter's actions in attempting to assert

certain argument as "a pretext", and the voluminous nature of her counsel's affirmation. Id., p.

13, fn 8. Particularly, the Court stated:

It is apparent that the Mother's new argument that the Court must

protect these grandchildren and un-named Chaminade, East

Northport, and Northport students is just a pretext to justify a fact-

finding hearing.

ld., p. 13.

The foregoing documentation demonstrates the falsity of the allegations contained

in the proposed complaint, and establishes that Plaintiffs do not have a potential meritorious

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cause of action. In addition to these documents, however, and as discussed below,Plaintiffs'

allegations fail to state a valid claim upon which relief can be granted.

B. Plaintiffs Fail To State A Valid Claim For Legal Malpractice

Plaintiffs'claim for legal malpractice cannot be made on behalf of Ms. Porter,

individually. It can only be asserted on PJ's behalf.

In order to state a cause of action to recover damages for legal malpractice, a

plaintiff must allege: (1) that the attorney "failed to exercise the ordinary reasonable skill and

knowledge commonly possessed by a member of the legalprofession,"

and (2) that the attorney's

breach of the duty proximately caused the plaintiff actual and ascertainable damages. See,

Dempster v. Liotti, 86 A.D.3d 169, 924 N.Y.S.2d 484 (2d Dep't 2011); see also, Leder v.

Spiegel, 9 N.Y.3d 836, 872 N.E.2d 1194, 840 N.Y.S.2d 888 (2007).

Initially,Plaintiffs'

claim fails since they have not adequately alleged any

negligence on the part of Defendant, which proximately caused them any actual or ascertainable

damages. Specifically, Plaintiffs fail to identify any of Defendant's acts or omissions which

constitute a departure from the reasonable standard of care. Instead, Plaintiffs rehash the same

unfounded and baseless arguments, which were rejected in the Family Court Case and/or the

Office Of AFC.

The only relevant time period would be from late February 2017 until PJ reached

eighteen years of age March 6, 2018.

Plaintiffs also fail to allege any damages, which were caused by Defendant's

purported negligence.

For these reasons,Plaintiffs'

cause of action for legal malpractice clearly fails.

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Moreover, New York courts impose a strict privity requirement to claims for legal

malpractice, where "absent fraud, collusion, malicious acts or other specialcircumstances"

an

attorney is not liable to a third party for negligence in performing services on behalf of his client.

See, Estate of Schneider v. Finmann, 15 N.Y.3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119 (2010)

("In New York, a third party, without privity, cannot maintain a claim against an attorney in

professional negligence, 'absent fraud, collusion, malicious acts or other special

circumstances'"); Federal Ins. Co. v. North American Specialty Ins. Co., 47 A.D.3d 52, 847

N.Y.S.2d 7 (1st Dep't 2007), citing Lavanant v. General Acc. Ins. Co. of America, 164 A.D.2d

73, 561 N.Y.S.2d 164 (1st Dep't 1990).

Defendant represented the child, and not Ms. Porter. Therefore, Ms. Porter

clearly lacks the necessary privity to proceed with a claim for legal malpractice on her behalf.

See, Kerley v. Kerley, 131 A.D.3d 1124, 17 N.Y.S.3d 150 (2d Dep't 2015) (Husband in divorce

proceeding lacked standing to seek disqualification of attorney for children and disallowance of

fee on the ground of legal malpractice); Drummond v. Drummond, 291 A.D.2d 368, 737

N.Y.S.2d 628 (2d Dep't 2002) ("The plaintiff did not have an attorney-client relationship with

the Law Guardian...and, therefore, did not have standing to assert a direct claim of malpractice

against her"); Bluntt v. O'Connor, 291 A.D.2d 106, 737 N.Y.S.2d 471 (4th Dep't 2002) ("Nor

does plaintiff have standing to bring the action individually because she is a third party who was

not in privity with the Law Guardian").

Additionally,Plaintiffs'

allegations on behalf of both the Estate and Ms. Porter

also fail since Defendant enjoys quasi-judicial immunity from claims pertaining to conduct

related to the performance of her duties as AFC in the Family Court Case. See, In re TM, 19

Misc.3d 1113(A), 859 N.Y.S.2d 907 (Fam. Ct. Kings Co, 2008); Blunt supra; Bradt v. White,

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190 Misc.2d 526 (Sup Ct. Greene County 2002); Marquez v. Presbyterian Hosp., 159 Misc.2d

617 (Sup Ct. Bronx County 1994); Saucedo v. Pierangelo, 19 Misc.3d 1113(A), 859 N.Y.S.2d

907 (Sup. Ct. New York Co, 2008).

In In re TM, the mother in a child protective proceeding moved to have the Law

Guardian relieved and new counsel assigned to represent the child's interests. The Court denied

the mother's request, and in doing so, it relied upon the rationale and public policy

considerations set forth in several other cases in this State (cited above):

In Bluntt v. O'Connor (291 A.D.2d 106), the Appellate Division,Fourth Department held that the mother lacked standing to bring a

legal malpractice claim on behalf of the child against the court-

appointed Law Guardian since she had her own adversarial

interests in the action and had a motive to dispute the Law

Guardian's opinion. In addition, the Court held that the mother

lacked standing to bring the action individually since she was a

third party who was not in privity with the Law Guardian. Absent

fraud, collusion, malicious acts or other special circumstances, an

attorney is not liable to third parties, not in privity, for harm caused

by alleged professional negligence (citing Maurer v. Maurer, 243

A.D.2d 672 [2d Dept 1997], quoting Spivey v. Pulley, 138 A.D.2d

563 [2d Dept 1988] ). The Court stated that the mother had not

demonstrated a "relationship so close as to approach that ofprivity"

as to allow her to maintain the action on her own behalf

(Bluntt v. O'Connor, 291 A.D.2d 106, 114-115). The Appellate

Division looked to decisions in other states and found that most

courts that have considered suits by disgruntled parents against

attorneys appointed by courts to protect children have granted, on

public policy grounds, absolute quasi-judicial immunity to the

attorneys for actions taken within the scope of their appointments

(291 A.D.2d at 116). The Court explained that quasi-judicial

immunity is necessary because exposure of Law Guardians to

liability under such circumstances would affect the willingness ofqualified attorneys to accept such appointments. "That

disincentive is against public policy and should beeliminated"

(Id.

at 119). The Court stated that "from a public policy perspective, it

is better to have a diligent, unbiased, and objective advocate to

assist the court in determining and protecting the best interests ofthe child than it is to assure that the minor child may later recover

damages intort"

(Id. at 118) (Emphasis Added).

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Similarly, in Bradt v. White (190 Misc.2d 526), the Supreme Court

held that a Law Guardian enjoys quasi-judicial immunity from

civil liability in actions brought by a parent for conduct directly

relating to the performance of the Law Guardian's duty to further

the best interests of the child. The Court explained that a Law

Guardian must be able to function fee fom the threat ofharassment from retaliatory litigation brought by dissatisfied

parents (190 Misc.2d at 534). The threat of civil liability for

conduct directly relating to the performance of the Law Guardian's

duties should not be available to inhibit the Law Guardian from

necessary investigation and advocacy on behalf of the child (190

Misc.2d at 531) (Emphasis Added).

Likewise, in Marquez v. Presbyterian Hosp. (159 Misc.2d 617), the

Supreme Court held that the Law Guardian appointed for a five-

year-old child in a child protective proceeding, cannot be held

liable in a legal malpractice action by the parents individually or

on behalf of the subject child based on the Law Guardian's alleged

inadequate representation in failing to call a particular witness at

the fact-finding hearing. The court emphasized that since the Law

Guardian had served in a guardian ad litem role, requiring an

independent position based on an evaluation of the best interests of

the child, liability could not attach absent a showing that the LawGuardian had failed to act in good faith in exercising discretion or

failed to exercise any discretion at all. In the instant case, the

child's court-appointed Law Guardian enjoys quasi-judicial

immunity from claims brought by respondent mother on behalf ofthe child since she has her own adversarial interests in the

proceeding and has a motive to dispute the Law Guardian's

opinion (Emphasis Added).

Id. at 2.

Based upon this well-founded rationale, the Court in In re TM held in relevant

part as follows:

The Law Guardian cannot be required to satisfy expectations or

standards of performance laid down for her by counsel for

respondent mother. His motives are dictated by his obligation to

represent his client, with his own interests, which do not

necessarily coincide with the interests of the child. A rule that

would make a Law Guardian answerable to parent's attorney for

the manner of her representation, would affect the willingness ofqualified attorneys to accept appointments, inhibit the Law

Guardian fom necessary investigation and advocacy on behalf of

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the child and punish her for taking a position adverse to the

parent. That disincentive is against public policy and should be

eliminated (Emphasis Added).

Id. at 3.

The role of a Law Guardian, assigned to represent a child too

young to make considered judgments, is to be an advocate for the

best interests of the child, not the parents. Accordingly, the fact

that the Law Guardian disagrees with the position advanced bycounsel for respondent mother and supports a finding of neglect,

does not suggest that removal is warranted...(Emphasis Added).

Id

Furthermore, in Saucedo, the Court applied the same rationale to an action for

"negligence/malpractice"against the defendant, Roger Pierangelo, a Nassau County Parent

Coordinator, during the pendency of a custody action in Nassau County Supreme Court. The

defendant filed a motion seeking, in part, an order pursuant to CPLR § 3211(a)(7), dismissing the

complaint on the grounds that it fails to state a cause of action and on the grounds that the

Eleventh Amendment bars plaintiff from seeking damages against him, since he was acting in his

quasi-official capacity as a Court-approved Nassau County Parent Coordinator, and as such

should be afforded judicial immunity from the instant action. The Court granted the defendant's

motion and held in pertinent part as follows:

Public policy supports the protection afforded a court-appointed

expert based on immunity from suit. In certain matters, a court

may rely on the opinions of experts to fully and fairly determine

the issues raised in litigation. Judicial immunity protects judges in

the...performance of their judicial functions so as to allow them to

exercise independent judgment without the threat of legal reprisal,

which is "critical to our judicialsystem."

Ashmore v. Lewis, 2012

N.Y. LEXIS 337 (Sup Ct. New York County 2012), citing,

Mosher-Simons v. County of Allegany, 99 NY2d 214, 219, 783

N.E.2d 509, 753 N.Y.S.2d 444 (2002), quoting Tarter v. State of

New York, 68 NY2d 511, 518, 503 N.E.2d 84, 510 N. Y.S.2d 528

(1986). "A logical extension of this premise is that 'other neutrallypositioned [individuals], regardless of title, who are delegated

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judicial or quasi-judicial functions should also not be shackled

with the fear of civil retribution for theiracts.'."

Id. citing, Mosher-

Simons, 99 NY2d at 220, quoting Tarter, supra.

Here, because Dr. Pierangelo was a court-approved Parent

Coordinator, serving a quasi-judicial function, and Judge Bennett

relied on his testimony and conclusions in rendering her decision,

he is entitled to immunity from suit regarding the work he

performed as a court-approved Parent Coordinator. As such, this

action must be dismissed as it is barred by the doctrine of judicial

immunity.

Id. at 5-6.

The same rationale and public policy considerations cited in the foregoing cases

warrant granting Defendant immunity from the baseless claims asserted against her, as they all

pertain to her alleged acts and/or omissions while acting as the AFC in the Family Court Case.

Specifically, as AFC, Defendant was appointed to represent the child pursuant to Rule 7.2 of the

Appellate Division, Second Department, State of New York (annexed). If this Court permitted

parents (individually and/or on behalf of the estates of deceased children) to assert claims against

AFCs related to actions taken within the scope of their duties, this would strongly dissuade

attorneys from accepting such appointments.

In the case at bar, the fact that this young man passed away after the age of

majority is not relevant to the causes of action in the proposed complaint, and does not give

Plaintiffs any additional or expanded rights.

Therefore,Plaintiffs'

unfounded and meritless claims against Defendant also fail

due to the immunity enjoyed by Defendant to the claims alleged in the proposed complaint.

Based upon the foregoing, not only isPlaintiffs'

claim for legal malpractice: (i)

contradicted by the relevant documentary evidence; and (ii) not adequately pled, but it also fails

due to the immunity afforded to Defendant.

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In addition, while the proposed complaint contains a myriad of allegations that

Defendant violated numerous professional and ethical rules of conduct (which Defendant

vehemently denies and which is contradicted by the finding of the Office Of AFC that she acted

in "accordance with statutory standards and present case law,") this is also insufficient to state a

valid cause of action for legal malpractice. See, Guiles v. Simser, 35 A.D.3d 1054 (3rd Dep't

2006) ("Defendant's sexual encounters with plaintiff clearly constituted...ethical violations...,

but '[t]he violation of a disciplinary rule does not, without more, generate a cause of action'"),

citing Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193 (1st Dep't 2003)

("The violation of a disciplinary rule does not, without more, generate a cause of action.");

McPhillips v. Bauman, 133 A.D.3d 998 (3rd Dep't 2015) ("Even if there was a conflict of

interest constituting an ethical violation as alleged by plaintiff, such a violation would not give

rise to a viable claim absent pecuniary damages..."); Kyle v. Heiberger & Associates, P.C., 25

Misc.3d 1218(A) (Sup. Ct. Bronx Co. 2015) ("Where, as here, plaintiffs do not sufficiently

allege the elements of the claim, dismissal is properly granted-even if there were allegations of

ethical violations, and negligence."). To reiterate, the Defendant denies any allegations of ethical

violations.

Furthermore, to the extent that the Estate is even permitted to assert claims against

Defendant (which for the reasons set forth above it has not and cannot), such claims would

necessarily have to be based upon Defendant's alleged acts taken prior to PJ reaching the age of

eighteen, since Defendant's attorney-client relationship with PJ ended at that time. Many of the

purported ethical violations referenced in the proposed complaint, however, appear to pertain to

actions allegedly taken after PJ reached the age of majority. This too is improper and further

warrants the rejection of the malpractice claim.

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Finally, Plaintiffs baselessly allege that Defendant improperly disclosed

privileged communications in her Affirmation in Response to Ms. Porter's order to show cause.

These communications, however, were properly disclosed in response to Ms. Porter's allegations

that Defendant committed legal malpractice and ethical violations, and is liable for wrongful

death. See, New York Rule of Professional Conduct 1.6(b)(5)(i) (which allows an attorney to

disclose "confidential information"... "to defend the lawyer or the lawyer's employees and

associates against an accusation of wrongful conduct..."). Also, these communications were

only disclosed to the Court, the parties to the Family Court Case, and their attorneys due to the

specious motion that the mother filed after jurisdiction ceased to exist.

In summation, Plaintiffs attempt to throw everything but the kitchen sink into this

cause of action for legal malpractice in the proposed complaint, all in a desperate attempt to

convince this Court that they possess a meritorious claim against Defendant. A perusal of the

allegations, however, reveals thatPlaintiffs'

cause of action for legal malpractice fails since: (i)

Plaintiffs have failed to adequately allege any negligence on the part of Defendant; (ii) Plaintiffs

have failed to identify any actual and ascertainable damages sustained by PJ, which were

proximately caused by Defendant's purported negligence; (iii) Defendant is afforded a quasi-

immunity toPlaintiffs'

claims, regardless of the fact that PJ has now passed; and (iv) Ms. Porter

lacks privity with Defendant.

C. Plaintiffs Have Failed To State A Valid Cause OfAction For Breach Of Fiduciary Duty

First and foremost,Plaintiffs'

claim for breach of fiduciary duty cannot be made

on behalf of Ms. Porter, individually. It can only be asserted on PJ's behalf.

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The elements of a breach of fiduciary duty cause of action are: (i) the existence of

a fiduciary relationship; (ii) misconduct by the defendant; and (iii) damages directly caused by

defendant's misconduct. See, Stinner v. Epstein, 162 A.D.3d 819, 2018 WL 2945397 (2d Dep't

2018); Baldeo v. Majeed, 150 A.D.3d 942, 55 N.Y.S.3d 340 (2d Dep't 2017). These elements

must be pled with particularity. Stinner, citing CPLR 3016(b).

A fiduciary relationship arises "'between two persons when one of them is under

a duty to act for or to give advice for the benefit of another upon matters within the scope of the

relation.'"See, Pergament v. Roach, 41 A.D.3d 569, 838 N.Y.S.2d 591 (2d Dep't 2007), citing

EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 832 N.E.2d 26, 799 N.Y.S.2d 170 (2005),

quoting Restatement [Second] of Torts § 874.

"This definition expressly refers to an agency relationship and an advisory

relationship in thedisjunctive."

Id. at 593. "Hence, either is sufficient to establish the fiduciary

relationship."Id., citing Matter of Granirer, 131 A.D.2d 477, 516 N.Y.S.2d 244 (1987).

While there was a fiduciary relationship between PJ and Defendant as AFC, Ms.

Porter does not (and cannot) allege that she had a "fiduciaryrelationship"

with Defendant.

Therefore, Ms. Porter clearly lacks standing to pursue this claim on her behalf.

Moreover, there are no facts pled alleging any misconduct by Defendant or

damages proximately caused by the alleged conduct, which were sustained by PJ. Specifically,

Plaintiffs cannot simply allege damages to Ms. Porter. Rather, they are required to allege with

particularity specific damages suffered by PJ. The failure to do so also warrants the rejection of

this proposed claim.

Furthermore, they failed to plead any facts which could be considered to

constitute a breach of a fiduciary duty to anyone.

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Finally, for the reasons set forth in Point B above, the claim for breach of

fiduciary duty also fails due to the immunity afforded to Defendant as AFC, regardless of PJ's

subsequent passing.

As a result of the foregoing, it is respectfully submitted that Plaintiffs have also

failed to state a valid claim for breach of fiduciary duty.

D. Ms. Porter Has Failed To State A Valid

Cause Of Action For Malicious Prosecution

This is a claim that can only be asserted by Ms. Porter, individually.

To sustain a cause of action for malicious prosecution based upon prior civil

litigation, a plaintiff must show that: (i) the defendant initiated an action or proceeding that

terminated in the plaintiff's favor; (ii) there was no probable cause for the action or proceeding;

(iii) the defendant acted with malice; and (iv) the plaintiff suffered a special injury. See, Black v.

Green HarbourHomeowners'

Assoc., Inc., 37 A.D.3d 1013, 829 N.Y.S.2d 764 (3rd Dep't 2007);

Perryman v. Village of Saranac Lake, 41 A.D.3d 1080, 839 N.Y.S.2d 290 (3rd Dep't 2007) ("To

succeed on a claim for malicious prosecution, a plaintiff must show that the defendant initiated a

proceeding that terminated in favor of the plaintiff, an entire lack of probable cause in the prior

proceeding, malice, and special injury").

Initially, on March 13, 2017, the Honorable Theresa Whelan granted Defendant

permission to file the neglect proceeding against Ms. Porter, giving both counsel an opportunity

to present their arguments. See, Exhibit 7. Normally, in civil litigation, a party and his/her

attorney do not require pre-approval to file a lawsuit. The fact that Defendant was expressly

granted permission to file the neglect proceeding after her attorney opposed said application on

the record, further demonstrates that Ms. Porter's claim that it was initiated without probable

cause is baseless, and not supported by any of the documents or findings in the Family Court

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Case. After argument for and against the granting of permission to file, Judge Whelan granted

permission, which was tantamount to a finding of probable cause.

Second, there was no action or proceeding that was terminated inPlaintiffs'

favor.

The neglect proceeding referred to in the proposed complaint, which Plaintiffs claim was decided

in Ms. Porter's favor on August 20, 2018, was actually withdrawn on the record on May 9, 2018,

due to the lack of the Family Court's jurisdiction after the child turned 18, and following the

death of the child, as noted in Judge Cheng's most recent decision. See, Ex. 6, p. 3. As such,

this claim is demonstrably false. Thereafter, Ms. Porter spent almost a year pursuing baseless

legal theories, when the Court and the parties involved all realized that the Family Court no

longer had the requisite jurisdiction.

Third,Plaintiffs'

unfounded claim that Defendant commenced a neglect

proceeding against Ms. Porter out of a "personalvendetta"

is not only untrue, but is not even

sufficient to state a cause of action for malicious prosecution. See, Bradshaw v. Silversmith, 122

Misc.2d 544, 472 N.Y.S.2d 237 (Sup. Ct. New York Co. 1983) ("Want of probable cause must

also be proved, and these may not be inferred from defendant's malice alone"), citing Jestic v.

Long Island Sav. Bank, 81 A.D.2d 255, 440 N.Y.S.2d 278 (2d Dep't 1981); Burt v. Smith, 181

N.Y. 1, 73 N.E. 495 (1905) ("While malice is the root of the action, malice alone, even when

extreme, is not enough, for want of probable cause must also be shown.").

Fourth, Plaintiffs have failed to adequately allege that they suffered a "special

injury", or any injury, as a result of Defendant's purported actions.

Fifth, it is worth noting that Defendant filed neglect petitions against both parents

after full consultation with her client, after Ms. Porter filed a family offense petition on behalf of

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the child against the father, and after Child Protective Services conducted an investigation and

report. See, Reply Aff., Ex. 3.

Finally, for the reasons set forth in Point B above, the claim of malicious

prosecution additionally fails due to the quasi-immunity afforded to Defendant as AFC,

regardless of PJ's subsequent passing.

Based upon the foregoing, it is respectfully submitted thatPlaintiffs'

cause of

action for malicious prosecution also fails.

E. Ms. Porter Has Failed To State

A Valid Cause Of Action For

Abuse Of Process

This is a claim that can only be asserted by Ms. Porter, individually.

In order to state a cause of action for abuse of process, a plaintiff must establish

that the defendant: (1) used regularly-issued process, either civil or criminal; (2) intended to do

harm without excuse or justification; and (3) used the process in a perverted manner to obtain a

collateral objective. See, Hudson Valley Marine, Inc. v. Town of Cortlandt, 79 A.D.3d 700, 912

N.Y.S.2d 623 (2d Dep't 2010); Bright View Trading Co., Inc. v. Park, 2004 WL 2071976

(S.D.N.Y. 2004).

The mere commencement of a legal action does not constitute abuse of process.

See, Greco v. Christofferesen, 70 A.D.3d 769, 896 N.Y.S.2d 363 (2d Dep't 2010) ("Moreover,

the mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging

abuse of process"); Matthews v. New York City Dept. of Social Services, Child Welfare Admin.,

217 A.D.2d 413, 629 N.Y.S.2d 241 (1st Dep't 1995); Tenore v. Kantrowitz, Goldhamer &

Graifman, 76 A.D.3d 556, 907 N.Y.S.2d 255 (2d Dep't 2010).

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Additionally, a malicious motive alone does not give rise to a cause of action to

recover damages for abuse of process. See, Matthews at 415; Tenore at 557.

The fact that Judge Whelan expressly granted Defendant permission to file the

neglect proceeding against Ms. Porter, after oral opposition, demonstrates that it was not issued

with the intent "to do harm without excuse orjustification."

See, Ex. 7. Even if Defendant did

commence the proceeding with a malicious motive (which clearly there was no such motive),

however, this is still not sufficient to state a cause of action for abuse of process.

Therefore,Plaintiffs'

baseless allegations that Defendant commenced the neglect

proceeding against Ms. Porter solely to "inflictharm"

upon her and to "elevate her status as a fair

AFC"is woefully insufficient to state a valid claim for abuse of process, and should be dismissed

accordingly. In fact, it is nonsensical and further demonstrates the frivolous nature of their

claims.

Furthermore, the fact that Defendant is afforded quasi-immunity from this claim

(as set forth in Point B above), also warrants its dismissal.

Finally, the proposed complaint cites to alleged conversations that Plaintiffs claim

Defendant had with Ms. Porter's attorney in the Family Court Case, some of which would

constitute confidential settlement negotiations that have now been improperly disclosed via

Plaintiffs'filing of same with this Court (most of those self-serving alleged comments to

Plaintiffs'attorney are vehemently denied by Defendant). See, CPLR 4547; Richmond County

Country Club v. Tax Com'n of City of New York, 53 A.D.3d 661, 862 N.Y.S.2d 560 (2d Dep't

2008) (Statement in letter from city's attorney to country club's attorney was an offer of

settlement, and thus was inadmissible in proceeding commenced by club to review property tax

classification); Stevens v. Atwal, 30 A.D.3d 993, 817 N.Y.S.2d 469 (4th Dep't 2006) (error from

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admission of evidence of plaintiffs settlements with former defendants was highly prejudicial,

and court's limiting instruction did not cure the error or alleviate that prejudice; evidence

permitted jury to infer that former defendants were responsible for plaintiffs injuries and that he

had been compensated therefor); Miller v. Sanchez, 6 Misc.3d 479, 789 N.Y.S.2d 850 (Sup. Ct.

Kings Co. 2004) (Insurer's offer to settle claim of driver whose vehicle collided with insured's

vehicle was not admissible evidence as to insured's liability nor as to the value of the claim).

Due to the circumstances of this case, it is worth noting that the courts in this

State promote and encourage free and open communications between attorneys who have an

adversarial relationship in a case. Under the ethical rules, however, attorneys risk having

unfounded, meritless claims being asserted against them, based upon oral communications with

other attorneys, who may have incorrect recollections and/or who may misrepresent

conversations to the courts and/or their clients.

CONCLUSION

The old saying of "quality overquantity"

certainly applies to the case at bar.

While Plaintiffs submit a 67 page proposed complaint, containing 202 paragraphs, they fail to

adequately assert a single valid allegation, which is not contradicted by the documentary

evidence, upon which Defendant can be found liable under the law in this State.

The "new andnovel"

theories asserted by Plaintiffs in the proposed complaint,

seek to compel Defendant to depart from all of her prior mandatory training and protocols,

violate Rule 7.2, and improperly act on a purely subjective basis. This would certainly violate

public policy, and is exactly why AFC's have quasi-immunity against claims such as those

asserted in the proposed complaint.

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Therefore, for the reasons set forth above and in the Reply Aff., together with

those asserted in Defendant's moving papers, it is respectfully submitted that Defendant's

motion be granted in its entirety.

Dated: Garden City, New York

March 19, 2019

Yours, etc.,

L'ABBATE, BALKAN, C LAVITA

& CONTINI, L.L.P.

By:

Matthew J. Bizzaro, Esq.

Attorneys for Defendant

1001 Franklin Avenue

Garden City, NY 11530

(516) 294-8844

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§ 7.2. Function of the Attorney for the Child, NY R CHIEF J § 7.2

McKinney's New York Rules of Court

State Rules of Court

Standards and Administrative Policies

Rules of the Chief Judge

Part 7. Law Guardians __

N.Y.Ct.Rules, § 7.2

§ 7.2. Function of the Attorney for the Child

Currentness

(a) As used in this part, "attorney for the child" means a law guardian appointed by the family court pursuant to section

249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court

might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.

(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to

constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest;

and becoming a witness in the litigation.

(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorneyfor the child must zealously defend the child.

(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the

child's position.

(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of

and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circ-t2nces.

(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed

by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best

interests. The attorney should explain fully the options available to the child, and may recommend to the child a course

of action that in the attorney's view would best promote the child's interests.

(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and

considered judgment, or that following the child's wishes is likely to result in a substantial risk of immimt, serious harm

to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In

these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants

the attorney to do so, notwithstanding the attorney's position.

N. Y. Ct. Rules, § 7.2, NY R CHIEF J § 7.2

Current with amendments received through February 15, 2019.



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§ 7.2. Function of the Attorney for the Child, NY R CHIEF J § 7.2



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