Thomas v Weitzman · Perecman Finn, P.L.L.C. and Baron Associates P.C." Weitzman affirmation, ,-i 17. The Weitzman Defendants allegedly failed to serve the Underlying Action's summons

Thomas v Weitzman2018 NY Slip Op 30528(U)

March 26, 2018Supreme Court, New York County

Docket Number: 151876/2016Judge: Kathryn E. Freed

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

State and local government sources, including the NewYork State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for officialpublication.

[FILED: NEW YORK COUNTY CLERK 03/30/2oia 03:14 PM[ INDEX NO. 151876/2016

NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 03/30/2018

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. KATHRYN E. FREED, J.S.C.

Justice -----------------------------------------------------------------------------x

TIFFANY THOMAS,

Plaintiff,

-v-

RAPHAEL WEITZMAN and WEITZMAN LAW OFFICES, LLC., WEITZMAN LAW OFFICES, l.l.C., TIFFANY THOMAS, THE PERECMAN FIRM, L.L.C., BARON ASSOCIATES, P.C., RICHMOND UNIVERSITY MEDICAL CENTER AKA RICHMOND MEDICAL CENTER, MARK BRANDON,

Defendants.

--------------------------------------------------------------------------------x WEITZMAN LAW OFFICES. L L C ,

Third-Party Plaintiff,

-V-

TIFFANY THOMAS. THE PERECMAN FIRM, PL LC. BARON ASSOCIATES, P C , RICHMOND UNIVERSITY MEDICAL CENTER AKA RICHMOND MEDICAL CENTER, and MARK L. BRANDON, MD,

Third-Party Defendants. ---------------------------------------------------------------------------------x

PART -~2~

INDEX NO. 151876/2016

MOTION SEQ. NO. 001.002

DECISION AND ORDER

The following e-f1led documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42,43,44,46,49

were read on this motion to/for DISMISS

The following e-filed documents, listed by NYSCEF document number {Motion 002) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84,85, 86, 87,88

were read on this motion to/for DISMISS

Upon the foregoing documents, it is ordered that the motions are decided as follows.

Motion sequence numbers 001 and 002 are consolidated for disposition ..

15187612016 THOMAS, TIFFANY vs. WEITZMAN, RAPHAEL Motion No. 001 002

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Plaintiff Tiffany Thomas (Thomas) brings this legal malpractice action against her fonner

attorneys, defendants Raphael Weitzman (Weitzman) and Weitzman Law Offices, l,.L.C.

(Weitzman Law, together with Weitzman, Weitzman Defendants), for their alleged failure to

ti1nely serve a summons and complaint in an underlying action for medical malpractice and

personal injury (Underlying Action). The three-count complaint asserts causes of action for legal

malpractice in connection with the underlying personal injury and medical malpractice claims

(first and second causes of action, respectively) and a claim for treble damages pursuant to New

York Judiciary Law§ 487.

The Weitzman Defendants filed an answer asserting numerous affirmative defenses and

cross claims against Thomas. Weitzman Law also commenced a related action iri the Supreme

Court of Monroe County, entitled Weitzman LaVi1 O.ffices, L.L.C. v Thomas, et al., under Index No.

00495/2017 (M0nroe County Action), which has been consolidated, as a third-party action, with

the instant suit. The six-count third-party complaint asserts claims for contribution,

indemnification and/or a declaratory judgement declaring that Weitzman Law is entitled to such

from third-party defendants the Perecman Firm, P.L.L.C. (the Perecman Finn) and Baron

Associates, P.C. (Baron Associates), which previously represented Thomas, and third-party

defendants Richmond University Medical Center, also known as Richmond Medical Center, and

Mark L. Brandon, MD (Dr. Brandon), the medical malpractice defendants in the Underlying

Action (first, fourth, fifth, and sixth causes of action, respectively). 1 In addition, the third-party

1 The third-party complaint does not i.dentify the causes of action it is asserting and the first, fourth, fifth, and sixth causes of action can be read as seeking indemnity, contribution and/or· declaratory relief. The Weitzman Defendants' submissions on the instant motions do not clarify the matter.

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complaint asserts claims for interference with a prospective business relationship against the

Perecman Firm (second cause of action) and defamation against Thomas (third cause of action).

The Weitzman Defendants now move (in motion sequence number 001) to dismiss the

complaint for improper service and for failure to state a claim. In the alternative, they seek a

change of venue to Monroe County. In addition, the Weitzman Defendants seek an order

disqualifying Thomas's attorneys, the Pcrecman Firm.

Third-party defendant Baron Associates ~aves (in motion sequence number 002) to

distniss the third-party complaint for failure to state a claim and based upon documentary evidence.

In addition, it seeks all costs, attorneys' fees, legal fees and disbursements incurred in connection

with this litig8tion and sanctions against Weitzman Law, pursuant to 22 NYCRR 130-1.1.

)

I. Background and Procedural History

On November 20, 2011, Thomas was allegedly injured at premises owned by the New

York City Housing Authority (NYCHA). According to Thomas, due to her injuries, she underwent

surgery at Richmond University Medical Center, which Dr. Brandon performed. She alleges that

she received treatment which fell beloW, and deviated from, proper and acceptable standards of

care in the medical community.

Thon1as retained third-party defendant Baron Associates to assert a personal injury claim

against NY CHA. She also retained third-party defendant the Perecman Firm to pursue a medical

malpractice claim against third-party defendants Richmond University Medical Center and Dr.

Brandon.

On December 21, 2011, Baron Associates served and filed a notice of claim against

NYCHA and the City of New York. According to Baron Associates, Thomas failed to appear for


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her initial General Municipal Law (GML) § 50-h examination, scheduled for February 21, 2012,

as well as a rescheduled examination on April 30, 2012. Subsequently, Baron Associates sent

Thomas a disengagement letter (Disengagement Letter), dated May 17, 2012. The Disengagement

Letter advised Thomas that: Baron Associates would no longer represent her, due to her "lack of

cooperation and failure to participate in the case"; the statute of limitations for a negligence claim

against NYCHA was one year and 90 days and would expire on February 15, 2013; and her

appearance at a 50-h examination was a prerequisite for commencing a lawsuit. McDonald

affirmation, exhibit Q. Baron Associates asserts that it had no further contact with Thomas.

According to the Perecman Firm, it never commenced an action on Thomas's behalf. By

letter dated April 26, 2012, Thomas informed the firm that she was discharging it and that she had

retained the Weitzman Defendants. Enclosed was a "Consent to Change Attorney" form (Change

of Attorney Form), already executed by Thomas and Weitzman, as well as a letter from Weitzman,

instructing the Pe.recman Firm to contact Weitzman Law regarding the transfer of Thomas's file

and payment of the Perecman Finn's disbursements. Rigelhaupt affirmation, exhibit 4. According

to the Perecman Firm, it executed and returned the Change of Attorney Form, along with a request

for payment of its disbursements. It allegedly sent follow-up requests for payment by letters dated

August 9 and October 2, 2012, but Weitzman Law never paid.

Weitzman maintains that, on April 26, 2012, Weitzman Law sent letters to the Perecman

Firm and Baron Associates, to substitute them as Thomas's attorneys. These letters allegedly went

unanswered, and Weitzman Law faxed the letters on June 11, 2012 and contacted both firms by

telephone on July 7, 2012. 2 Weitzman states that the Perecman Firm did not return an executed

2 Notably, the Weitzman Defendants do not submit any documentary evidence of their alleged communications with Baron Associates.


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Change of Attorney Form and that the Perecman Finn's subsequent demands for payment

·"confirm[] lthat] no substitution or transfer of tiles [had] tak[en] place." Weitzman reply

affirmation, ~I 15.

On February 17, 2013, the Weitzman Defendants commenced the Underlying Action on

Thomas's behalf by filing a summons and complaint in the Supreme Court, Richmond County

(under Index No. 0150118/2013), naming the NY CHA, Richmond University Medical Center and

Dr. Brandon as defendants. Weitzman executed the attorney verification that accompanied the

complaint, jdentifying the Weitzman Defendants as Thomas's "attorneys of record" in the

Underlying Action, and "certiflied] that lhe] reviewed the facts of this case and [had] consulted

with a physician ... and that [he had] concluded, on the basis of such review and consultation, that

there [was] a reasonable basis for the commencement of this action." McDonald affirmation,

exhibit Eat 11, 12. Weitzman now states that the Weitzman Defendants "mistakenly filed a

Summons and Complaint on February 17, 2013, . . . while Plaintiff was represented by The

Perecman Finn, P.L.L.C. and Baron Associates P.C." Weitzman affirmation, ,-i 17.

The Weitzman Defendants allegedly failed to serve the Underlying Action's summons and

complaint on Richmond University Medical Center and Dr. Brandon, and did not serve NYCHA

until April 28, 2014. They _also allegedly failed to move for leave to extend the time to serve.

NYCHA moved to dismiss the complaint and the Weitzman Defendants cross-moved to extend

the time to plead or compel acceptance of a pleading untimely served. In the affirmation in support

of the cross motion, Weitzman stated that the summons and complaint were properly and timely

served, but that NYCHA refused to accept service "due to issue with legibility of the index number,

which as a result of misfiling did not get addressed promptly.'' Complaint, ,-i 32 (internal quotation

marks omitted). Thomas states, on information and belief, that this statement was false. The


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Weitzman Defendants failed to appear on the return date for the motions and, by order dated

October 24, 2014, the court granted NYCHA's motion, dismissing the summons and complaint

with prejudice.

The Weitzman Defendants then filed a motion for leave to renew and reargue. In his

affirmation is support of the motion, Weitzman stated that he failed to appear on the return date of

the original motions because "his ... office sustained water damage when a water "pipe broke

halting operations of the office for over ten days, causing Plaintiff to miss argument of the

motions.'' Id., ~ 37 (internal quotation marks omitted). In addition, Weitzman stated that

'"[c]ounsel fof Plaintiff have been otherwise diligent in the prosecution of this matter, completing

discovery in a timely manner and placing the case on the calendar in a timely manner." Id.,~ 39

(internal quotation marks omitted). Thomas asserts, on information and belief, that these

statements to the court were false. On December 8, 2014, Dr. Brandon filed a motion to dismiss

the complaint in the Underlying Action based on the lack· of service. By order dated January 9,

2015, the court granted Dr. Brandon's motion to dismiss, and denied the Weitzman Defendants'

motion to renew and reargue. Although the Weitzman Defendants filed a notice of appeal, they

failed to perfect the same.

Thomas maintains that the Weitzman Defendants never informed her that her claims

against NYCHA and Dr. Brandon had been dismissed and that they failed to serve Richmond

University Medical Center. She alleges that she "was falsely told that her case was proceeding

without difficulty." Id.,~ 48.

Thomas commenced the instant legal malpractice action on March 4, 2016. On April 8,

2016, the Weitzman Defendants filed their verified answer, which raised lack of personal

jurisdiction as an affirmative defense. In addition, the Weitzman Defendants filed a demand to


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change venue from New York County to Monroe County, pursuant to CPLR 503, and filed a notice

of removal seeking removal of the action to the United States District Court for the Western

District of New York (Western District).

In the .Western District, the Weitzman Defendants filed a third-party complaint against

Baron Associates, the Perecman Firm, Richmond University Medical Center and Dr. Brandon

(Western District Third-Party Complaint). On May 4, 2016, Thomas moved to remand the action

back to state court and, on May 12, 2016, the Weitzman Defendants cross-moved, inter alia, to

dismiss the action as against Weitzman, pursuant to Federal Rule of Civil Procedure (FRCP) 12

(b) (6). Baron Associates filed papers in support ofThomas's motion to remand and entered into

a stipulation with the Weitzman Defendants, extending Baron Associates' time to respond to the

Western District 'fhird-Party Complaint to 30 days from receipt of the court's decision on either

of the pending motions.

Baron Associates sought to convince the Weitzman Defendants to discontinue their third-

party claim against it. By letters dated August 25 and November 2, 2016, Baron Associates

explained that its brief representation of Thomas ended long before the Weitzman Defendants

comn1enced the Underlying Action, and provided copies of the served notice of claim, the

Disengagement Letter, and an executed closing statement. By. email dated September 19, 2016,

Weitzman claimed that the supporting documents were "incomplete and illegible" and requested

access to the originals. McDonald affirmation, exhibit S.

By decision and order dated December l, 2016, the Western District found that the basis

for removal to federal court was improper, granted the motion to remand the action back to New

York County Supreme Court, dismissed the Western District Third-Party Complaint without

prejudice, and.denied the remaining motions as moot.


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By motion dated January 11, 2017, the Weitzman Defendants moved to dismiss the instant

action.

On January 17, 2017, Weitzman Law commenced the Monroe County Action. On January

24, 2017, Weitzman Law sought to consolidate the Monroe County Action with the instant action

and demanded that venue of the consolidated action be transferred to Monroe County. On March

23, 2017, Baron Associates cross-moved for an order to venue the consolidated action in New

York County, or, in the alternative, dismissing the complaint. The other defendants also moved,

among other things, to dismiss the complaint. By decision and order dated July 31, 2017, the court

granted the motion to consolidate the Monroe County Action with the instant action as a third-

party action, established New York County as the venue and denied the remaining motions without

prejudice. By order dated August 14, 2017, the Supreme Court, Monroe County directed its Clerk

to transfer the Monroe County action to New York County.

IL Analysis

A. The Weitzman Defendants' Motion (Motion Sequence Number 001)

1. Lack of Personal Jurisdiction

·rhe Weitzman Defendants contend that the complaint should be dismissed because

Thomas failed to properly serve the summons and complaint within 120 days from commencement

of the action, as required by CPLR 306-b. They argue that service on Weitzman and Weitzman

Law failed to comply with CPLR 308 and CPLR 311, respectively. 3 Thomas counters that the

motion to dismiss is not timely, that defendants chose to chart a different course by improperly

3 Notably, CPLR 31 J provides for personal service upon a corporation. Because Weitzman Law is a limited liability company, CPLR 311-a is the pertinent provision.

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RECEIVED NYSCEF: 03/30/2018

removing this matter to federal court, and that they should not be rewarded with a second bite at

the apple.

Pursuant to CPRL 3211 (e) "an objection that the summons and complaint ... was not

properly served is waived if, having raised such an objection in a pleading, the objecting party

does not move for judgment on that ground within sixty days after serving the pleading, unless the

court extends th·e time upon the ground of undue hardship." In addition, "[a ]n objection based

upon a ground [of lack of personal jurisdiction] ... is waived if a party moves on any of the

grounds set forth in [CPLR 3211] (a) without raising such objection .... " Id. In this way, CPLR

321 l(e) "requirersl a party with a genuine objection to service to deal with the issue promptly and

at the outset of the action [to] ferret out unjustified objections and ... provide for prompt resolution

of those that have merit." Wade v Hyung Yang Kim, 250 AD2d 323, 325 (2d Dept 1998) (iotemal

quotation marks and citation omitted).

Generally, "defendants [do] not waive any defenses based on lack of personal jurisdiction

by removing the action to f(:deral court." Magwitch, L.L. C. v Fusser's Inc., 84 A03d 529, 530 (1st

Dept 2011 ). Indeed, "one of the very purposes of removal may be to have the federal court dispose

of [an] objection to.personal jurisdiction." Benffits by Design Corp. v C'ontractor Mgt. :::;ervs ..

lf,C, 75 AD3d 826, 828 (3d Dept 20 I 0) (internal quotation marks and citation omitted); see also

Magwitch, LLC, 84 AD3d at 531 (approving of Benijits By Design Corp., 75 AD3d 826).

Under the FRCP, "[a] defendant who wishes to raise the defense of no personal jurisdiction

or improper venue must do so in its first defensive move, be it a Rule 12 motion or an answer."

Hartling v Woodloch Pines, Inc., 1998 WL 575138, 'l, 1998 U.S. Dist. LEXIS 14060, '2 (SD

NY, Sept. 8, 1998, No. 97-Civ-2587 [JSM]). Pursuant to FRCP 12, a party may make a pre-answer

motion to dismiss based on, among other things, lack of personal jurisdiction, insufficient process,


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insufficient service of process and failure to state a claim. FRCP 12 (b) (2), (4)-(6). However,

one bringing a Rule 12 motion waives these defenses by failing to raise them. FRCP 12 (h) (I).

Here, the Weitzman Defendants served an answer asserting lack of personal jurisdiction as

an affirmative defense. Instead of promptly moving to dismiss on that ground, they chose to

remove this action to federal court. Although the removal did not waive their right to raise

jurisdictional objections (see Magwitch. L.IJ:C., 84 AD3d at 530), their subsequent conduct did.

In the Western District, the Weitzman Defendants made a Rule 12 motion to dismiss the action as

against Weitzman only, on the ground that the complaint failed to state a claim against him. As in

state court, under the FRCP, a failure to raise the defense of improper service in a motion to dismiss

waives the said defense. Thus, the Weitzman Defendants waived the defense by failing to raise

it.4 Compare FRCP 12 (h) (1), with CPLR 3211 (e). However, they ask that this Court grant them

a second bite at the apple because the Western District denied their Rule 12 motion as moot.

While there are no cases addressing this particular scenario,5 instances where defendants

have been allowed to raise a jurisdictional objection upon remand from federal court generally

4 It would appear that the motion in the Western DistriCt was also procedurally improper. A rule 12 motion is a pre-answer motion. However, the Weitzman Defendants served their answer prior to removing the action to the Western District. 5 It should be noted that the practice commentaries for CPLR 3211 (e) have anticipated this very scenario and have the following advice for the prudent litigant:

"If the ground of the jurisdictional objection is improper service and the defendant has chosen to assert it as a defense in the answer-and the answer has already been served at the time of removal .... the defendant should promptly, after removal, make a motion for judgment in the federal court based on the jurisdictional objection .... And if the defendant chooses to remove the case before answering, the defendant would do well to make a prompt motion to dismiss in the federal court after the removal, under Rule 12 (b) of the [FRCl'], based on the improper service objection.


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involve a defendant who acts with the utmost care to preserve his jurisdictional objection by

asserting it at the first opportunity. For example, in Benifits By Design Corp., the Appellate

Division, Third Department, held that the defendant in that action "did not submit itself to New

York jurisdiction by removing the action to federal court," and "properly asserted its jurisdictional

objection by motion as required by CPLR 3211 (e)," under the following circumstances:

"Defendant's notice of removal explicitly provided that the removal did not waive any available defenses or counterclaims. In federal court, defendant moved to dismiss the complaint for lack of personal jurisdiction; while that motion was pending, the parties remanded the action by a stipulation providing that all pending motions were 'disposed of as moot, without prejudice to any rights[d]efendants may have to move against [p]laintiffs' [a]mended [c]omplaint in the Supreme Court, Saratoga County.' Upon remand, defendant promptly reasserted its jurisdictional defense."

75 AD3d at 828. Similarly, in Magwitch. L.L.C., the Appellate Division, First Department,

affirmed dismissal for lack of personal jurisdiction, where: the plaintiff commenced an action in

the Supreme Court, New York County, which the defendants removed to federal court before the

expiration of their time to respond by answer or motion; the plaintiff then moved to remand the

action back to state court and defendants moved to dismiss for lack of personal jurisdiction; the

federal court remanded the matter, including the pending motion to dismiss, to state court; and,

upon remand, the state court granted the motion to dismiss. 84 AD3d at 530-531 (1st Dept 2011 ).

Here, unlike in Magwitch, L.L.C'. and Benifits By Des;gn Corp, the Weitzman Defendants failed

"By so proceeding, the defendant should be able to preserve the objection through the process of removal to federal court, and eVen through the process of removal and remand, should the case be sent back."

John R. Higgitt, McKinney's Cons Laws of NY, 2017 Electronic Update, CPLR 3211.


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to avail themselves of the first possible opportunity to challenge personal jurisdiction and, by

failing to make such a prompt challenge, waived the defense.6

l'o the extent that the Weitzman Defendants argue that they raised the issue of imp_roper

service in federal court, but that the Western District did not consider these arguments, this is a

mischaracterization of the record. In its decision and order granting the motion to remand, the

Western District specifically noted that, although the Weitzman Defendants claimed that Thomas

failed to comply with CPLR 308 and 311, "the brief indicated that Weitzman and Weitzman Law

were raising the ineffective-service-of-process argument in order to show the Court that the third-

party defendants were guilty of the same misconduct of which Weitzman and Weitzman Law were

being sued by Thomas." McDonald affinnation, exhibit I at 11 n 7; see also Weitzman reply

affinnation, exhibit Kat 34-35. The Weitzman Defendants never made a timely motion to dismiss

the complaint for lack of personal jurisdiction.

For the foregoing reasons, the Weitzman Defendants' motion to dismiss pursuant to CPLR

306-b is denied.

11. Failure to State a Claim

The Weitz1nan Defendants argue that the complaint must be dismissed because Thomas's

failure to submit to a GML § 50-h examination, prior to commencing the Underlying Action,

means that she cannot demonstrate that, but for the Weitzman Defendants' alleged malpractice,

6 Interestingly, the CPLR supplemental practice commentaries come to the same conclusion, noting that "the key to preservation of the personal jurisdiction objection in the removal-remand context should be a showing of compliance with both CPLR 3211 ( e) and Fed.R.Civ.P. 12(b) & (h)-rules that arc similar in all relevant respects." Vincent C. Alexander, McKinney's Cons I~aws of NY, 2017 Electronic Update, CPLR 320.


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she would have prevailed in the Underlying Action. In addition, they argue that Thomas's

attorney-client relationship was with Weitzman Law, a limited liability company. Therefore, they

contend, Thomas's claim against Weitzman must be dismissed, because the complaint fails to

allege facts sufficient to pierce the corporate veil. Thomas counters that her alleged failure to

appear for the 50-h examination is: irrelevant at this stage of the litigation; may be additional

evidence of defendants' malpractice; and, in any event, would not have had any impact on her

ability to pursue the medical malpractice claim in the Underlying Action. In addition, Thomas

argues that Weitzman should not be dismissed from the action before discovery takes place, since

it may demonstrate that Weitzman represented plaintiff in his individual capacity or that he

dominated Weitzman law, allowing this Court to pierce the corporate veil. Thomas also points out

that, at the very least, Weitzman cannot be dismissed from the action, because the third cause of

action, for violation of Judiciary Law § 487, states a claim against Weitzman in his individual

capacity.

·'[O]n a motion to dismiss a complaint for failure to state a cause of action, .the complaint

must be construed in the light most favorable to the plaintiff and all factual allegations must be

accepted as true." Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 (1st

Dept 2004); see also Amaro v Gani Realty Corp .• 60 AD3d 491, 492 (1st Dept 2009) ("[t]he court

must ... accord the plaintiff1] the benefit of every possible favorable inference"). The court is not

permitted "to assess the merits of the complaint or any of its factual allegations, but only to

determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally

cognizable cause of action." Skillgames. LLC v Brod~v, 1 AD3d 247, 250 (1st Dept 2003).

"However, factual allegations that do not state a viable cause of action, that consis.t of bare legal


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conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are

not entitled to such conside.ration." Id.

A plaintiff alleging legal malpractice must "establish that counsel failed to exercise the

ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession

and that 'but for' the attorney's negligence the plaintiff woi.ild have prevailed in the matter or would

have avoided damages." Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d

1, 10 (1st Dept 2008) (internal quotation marks and citations omitted).

I-Jere, Thomas's failure to appear at the 50-h examination does not prevent her from

establishing that, but for the Weitzman Defendants' alleged malpractice, she would have prevailed

in the Underlying Action. Generally, an appearance at a 50-h hearing is a prerequisite for

commencing an action against a municipality, and noncompliance will result in dismissal. See

General Municipal Law § 50-h (5) (stating that an action against a municipality "may not be

commenced until compliance with the demand for examination ... "); see also Ward v Neu' York

City Health & Hosps. Corp., 82 AD3d 471, 472 (1st Dept 2011) (refusing to vacate dismissal

where the plaintiff"failed to comply with a precondition to commencing action by failing to appear

at a General Municipal Law§ 50-h hearing, after adjourning the hearing nine times"). However,

the complaint alleges that the Weitzman Defendants were the ones who commenced the

Underlying Action on Thomas's behalf. See complaint,~ 21. Thus, their argument for dismissal

is, in essence, that: Thomas cannot establish that, but for the Weitzman Defendants' failure to

timely serve the summons and complaint, she would have prevailed in the Underlying Action,

because their failure to ensure compliance with General Municipal Law § 50-h, prior to

commencing the Underlying Action, would have resulted in its dismissal. It may well be that the

Weitzman Defendants were not at fault. However, they do not allege, much less present evidence

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of, circumstances that excuse their role in commencing the Underlying Action without first

ensuring compliance with GML § 50-h. Therefore, assuming the truth of the allegations and

affording Thomas the benefit of every favorable inference, her alleged failure to appear for a 50-h

examination does not require dismissal of the malpractice claim at this time. ,'lee Allianz

Underivriters ins. Co., 13 AD3d at 174.

Additionally, to the extent that the Underlying Action was against non-municipal

defendants Richmond University Medical Center and Dr. Brandon, Thomas's nonappearance at

the 50-h hearings did not impact her ability to prevail in the Underlying Action.

Moreover, the complaint states a claim against Weitzman in his individual capacity.

Weitzman may not be held personally "liable for [Weitzman Law's] obligations by virtue of his

status as a member thereof.'' Retropolis, inc. v 14th St. Dev. LLC, 17 AD3d 209, 210, 211 (!st

Dept 2005) (internal quotation marks and citations omitted) (stating that, in order to pierce the

corporate veil and hold a defendant personally liable for the actions of a corporation, the complaint

must contain specific allegations demonstrating that the defendant "was actually doing business

in [his] individual capacit[y], shuttling [hisJ personal funds in and out of the corporations 'without

regard to formality and to suit [his] immediate convenience"'). However, the complaint does not

seek to do so. Instead, it alleges that "Rafael Weitzman and/or Weitzman l,aw Offices, LLC"

entered into an attorney-client relationship with Thomas and that "Rafael Weitzman and/or

Weitzman Law Offices, LLC" committed legal malpractice. Complaint,~~ 19-30, 50-72. Because

the Weitzman Defendants do not offer any documentary evidence (i.e., a retainer agreement) to

contradict these allegations, this Court must assume that they are true. c')kfllgames. LLC, 1 AD3d

at 250. Therefore, at this preliminary stage of the litigation, this Court assumes that Weitzman

and/or Weitzman Law were in an attorney-client relationship with Thomas, allowing her to


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maintain a legal malpractice claim against both. Cf Shaya B. Pac., LLC v Wilson, Elser, Mokowitz,

Edelman & Dicker. LLP, 38 AD3d 34, 39 (2d Dept 2006) (declining to "place on the plaintiff the

initial burden of pleading sufficient evidentiary facts to establish that the scope of the defendant's

representation" included matters relating to the alleged malpractice).

In addition, the complaint alleges that Weitzman made false statements to the court which,

if true, may subject him to liability in his individual capacity . • "Jee Judiciary Law§ 487 (providing

that"[ a)n attorney ... who: (I) is guilty of deceit, ... with intent to deceive the court or any party

... forfeits to the party injured treble damages ... '").

For the foregoing reasons, the Weitzman Defendants' motion to dismiss the complaint is

denied in its entirety.

This Court takes note of several arguments the Weitzman Defendants raise on reply. First,

they argue that the complaint should be dismissed because they never substituted Thomas's

original attorneys, Baron Associates and the Perecman Firm. Not only is the argument

impermissibly raised for the first time on reply, but, as explained below, it is without merit. ,f;)ee

Givoldi, Inc. v United Parcel Serv., 286 AD2d 220, 220 (I st Dept 2001) (rejecting an argument

raised for the first time in a reply brief). In addition, they argue that Thomas's failure to dispute

the disparaging statements that Weitzman makes about her in his affirmation in support 9f the

motion to dismiss amounts to an admission that she was responsible for the injuries that gave rise

to the Underlying Action. Thus, they argue, she cannot prove that, but for the alleged malpractice,

she would have prevailed in the Underlying Action. Again, not only is the argument impermissibly

raised for the first time on reply, but it is completely devoid of legal merit, since Weitzman's

affirmation is neither a pleading nor a notice to admit requiring Thomas to admit or deny its

contents. :'Jee CPLR 3123, 3018.


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111. Change of Venue

The Weitz1nan Defendants argue that New York County, designated in the summons and

complaint as the place of trial, is improper because Weitzman, the only party with ties to New

York City, has been wrongfully added as a party to this suit.

"Except where otherwise prescribed by law, the place of trial shall be in the county in

which one of the parties resided when it was commenced .... " CPLR 503 (a).

Here, it is undisputed that Weitzman resides in New York County. See complaint,~ 3;

answer, ,-i 4. Therefore, New York County is a proper venue for trial. Accordingly, the Weitzman

Defendants' motion to change venue is denied.

1v. Disqualification of Plaintiff's Attorney

·rhe Weitzman Defendants contend that Thomas may have a malpractice claim against her

attorneys, the Perecman Firm, for its alleged failure to permit the Weitzman Defendants to take

over as Thomas's attorneys of record in the Underlying Action. They argue that this necessitates

the Perecman Firm's disqualification because: (1) there is a significant risk that its representation

of Thomas will be materially limited by its own interest; (2) a lawyer from the Perecman Firm will

be a witness in the action; and (3) the representation is violative of ethical, legal, and/or fiduciary

duties to a client or a former client. Thomas responds that the argument is factually and legally

without merit.

An attorney may not continue to represent a plaintiff in an action, if he "possesses a

financial interest in a lawsuit akin to that of a defendant." Greene v Greene, 47 NY2d 447, 452

( l 979). Nor may an attorney continue with a representation in violation of the advocate witness

rule, when "it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf


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of his client." H H.B. K 45th Street Corp. v Stern, 158 AD2d 395, 396 (1st Dept 1990) (internal

quotation marks and citation omitted). 'fo require disqualification, the attorney's testimony must

be necessary, not merely relevant. See id. In addition, an attorney may not continue in his

representation of a client where: "(I) [there exists] a prior attorney-client relationship between the

moving party and opposing counsel, (2) ... the matters involved in both representations are

substantially related, and (3) ... the interests of the present client and former client are materially

adverse." Pellegrino v Oppenheimer & C'o., inc., 49 AD3d 94, 98 (1st Dept 2008) (internal

quotation marks and citatio_n omitted).

Jn a motion to disqualify opposing counsel, the movant bears the burden of "present[ing]

facts which would support the allegation of a conflict .... " S'trongback Corp. v N.E.D. Cambridge

Ave. Dev. Corp., 32 AD3d 793, 794 (1st Dept 2006). "Courts adjudicating disqualification

motions must be mindful of the possibility that the motion is made for improper reasons, to 'stall

and derail the proceedings, redounding to the strategic advantage of one party over another."' id.,

quoting S & S Hotel Ventures Lid Partnership v 777 S H Corp., 69 NY2d 437, 443 (1987).

Here, the Weitzman Defendants fail to satisfy their burden of demonstrating that the

Perecman Firm should be disqualified. The Weitzman Defendants state, in a conclusory manner,

that "all the criteria's [sic] are present to disqualify Plaintiffs counsel" for a conflict with an

existing or past client and that "the testimony of one or more of The Perecman Firm, P.L.L.C.'s

attorneys is both necessary and substantially likely to prejudice [Thomas's] case.'' Weitzman

Defendants' brief in support at 20. They make no attempt to demonstrate an existing conflict with

a past or present client or to explain why the Perecman Firm's testimony would be necessary in

the instant action. Therefore, the Weitzman Defendants fail to establish either ground for

disqualification. ,)ee S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 444-445 (internal


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quotation marks and citation omitted) (reversing disqualification, where movant failed to establish

that the "case would be tainted by the participation of an attorney or a firm''); see also Rivas v

Raymond Schwartzberg & Assoc .. PLLC, 52 AD3d 401, 402 (lst Dept 2008) (holding that

disqualification was "[ un]warranted under the advocate-witness rule in light of defendant's failure

to demonstrate that the attorney testimony was necessary''); .~trongback Corp., 32 AD3d at 794

(denying defendant's motion to disqualify plaintiffs attorneys, whom defendant impleaded as

additional defendants, where defendant failed to demonstrate that the attorney's testimony would

be necessary).

In addition, the Weitzman Defendants fail to establish that disqualification is required due

to the Perecman Finn's self-interest in avoiding a malpractice claim. Neither fact nor law supports

the Weitzman Defendants' position that they were never substituted for the Perecman Finn as

Thomas's attorneys in the Underlying Action.

The Weitzman Defendants' own submissions demonstrate that they took over as Thomas's

attorneys. See Weitzman reply affirmation, exhibit B (letter from Weitzman Defendants, dated

April 26, 2012, that: informed the Perecman Firm that they would be substituting as Thomas'

counsel; enclosed a letter from Thomas, discharging the Perecman Finn as her attorneys; and

enclosed the Change of Attorney Form). Importantly, the Change of Attorney Form, annexed to

Weitzman's affirmation in reply, is executed by Thomas, Weitzman Law, as "incoming attorney,"

and the Perecman Finn, as "outgoing attorney." Id. Despite this evidence, the Weitzman

Defendants deny that the Perecman Finn returned the executed Change of Attorney Form and

insist that they were never substituted as attorney for Thomas. 7 As evidence of this, they point to

7 The Weitzman Defendants deny that the Perecman Finn returned an executed Change of Attorney Form, but submit the executed form in support of their motion. Weitzman reply affirmation, exhibit B. They do not explain this obvious discrepancy.


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the fact that ·'Defendant Weitzman Law Offices LLC never paid The Perecman Firm's outstanding

disbursements'· (Weitzman reply affirmation. ,-116) and that the Perecman Finn never transferred

Thomas·s case file. However-, none of this nullifies Thomas's discharge of the Perecman Firm or

the executed Change of Attorney Form. ,';ee Farage v Ehrenberg, 124 AD3d 159, 165 (2d Dept

2014) ("[ a]n <iflinnative discharge of an attorney by the client is immediate'').

To the extent that defendants argue that the Perecman Firm never withdrew as the attorney

of record, as required by CPLR 321, the argument is wholly without merit. Generally, "from the

standpoint of adverse parties, counsel's authority as an attorney of record in a civil action continues

unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by

CPLR 321.'' Id; see CPLR 321 (b) (providing that "an attorney of record may be changed by tiling

with the clerk {an executed] consent to the change" or by "by order of the court in which the action

is pending"). Here, the Weitzman Defendants, and not the Perecman Firm, were Thomas'

attorneys of record in the Underlying Action, because the Weitzman Defendants were the ones to

commence and to litigate the Underlying Action on Thomas·s behalf. See Rodriguez v City ~(New

York, 66 NY2d 825, 827 (1985) (explaining that the appearance of an attorney's natne on the

retainer statement did not ·make him the attorney of record because his "name never appeared on

any of the pleadings, motion papers, <!.ffidavits, briefs or record in plaintiffs action"); see also

Cabukyuksel v Ascot Praps., LLC, 99 AD3d 405, 407 (1st Dept 2012) (stating that a law firm

"never co~1menced an action against [a defendant] and thus w~s never attorney of record" in that

action). Therefore, CPLR 321 did not govern the Perecman Firm's discharge as Thomas's counsel.

In any event,

"[tJhe purpose of CPI~R 321 (b) is to afford protection to adverse parties, by eliminating disputes and uncertainty as to whether and when the authority of an attorney representing an opponent terminated, and it has generally been construed to establish the


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authority of discharged counsel as to adverse parties and not as to the very party who discharged the attorney.''

MacArthur v Hall, McNicol, Hamilton & Clark, 217 AD2d 429, 429-30 (1st Dept 1995) (internal

quotation marks and citations omitted) (finding that, "notwithstanding the failure to comply with

CPLR 32I(b), [discharged attorney] was under no duty to continue litigating the assigned action

on plaintiffs behalt: the assignment being clear that plaintiff had retained another attorney for that

purpose and that defendant had consented to the substitution"). Therefore, the Weitzman

Defendants replaced the Perecman Firm as Thomas's attorneys before commencing the

Underlying Action. Thus, the Weitzman Defendants fail to demonstrate that Thomas has a

malpractice claim against her attorneys requiring their disqualification.

For the foregoing reasons, the Weitzman Defendants' motion to disqualify the Perecman

Finn as Thomas's counsel is denied.

B. Third-Party Defendant Baron Associates' Motion (Motion Sequence Number 002)

i. Motion to Dismiss the Third-Party Complaint

Baron Associates contends that the third-party complaint should be dismissed as against it,

because it fails to state a claim for declaratory relief and fails to set forth facts to support Weitzman

Law's claim for indemnification. lt argues that Thomas' damages are attributable solely to the

Weitzman Defendants and that the Disengagement Letter establishes that Baron Associates ended

its attorney-client relationship with Thomas before the Weitzman Defendants commenced the

Underlying Action. The Weitzman Defendants counter that the motion must be denied, because:

information necessary to oppose the motion is not in their possession; the documents submitted in

support of Baron Associates' motion are incomplete and illegible copies; and Baron Associates

approached this Court with unclean hands.·


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As explained above, on a motion to dismiss for failure to state a claim, the· court must give

the plaintiff the benefit of every favorable inference (Allianz Underwriters Ins. Co., 13 AD3d at

174), unless the allegations "consist of bare legal conclusions, ... or [are] clearly contradicted by

documentary evidence ... .'' Skil/games, LLC, I AD3d at 250 (citation omitted). To dismiss the

complaint based on documentary evidence, "the documentary evidence [must] utterly refute[]

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) (citation omitted).

Pursuant to CPLR 3211 (d), the court may deny a motion to dismiss pending further

discovery on the ground "that facts essential to justify opposition may exist but cannot be stated."

The party opposing the motion to dismiss should "specify what facts warrant further discovery

[and] how they are relevant to his opposition to the motion to dismiss .... " Warshaw Burstein

C'ohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537 (1st Dept 2013); see also

C'raco/ici v Shah, 127 AD3d 413, 413 (I st Dept 20 IS) ("[t]he mere hope that discovery may reveal

rhelpful information], does not warrant denial of the motion").

"[A] third-party action for contribution or indemnification fis] not viable [where] third-

party defendants [do] not share in defendant's responsibility for plaintiffs alleged loss .... " See

Rivas v Raymond /ichl11artzberg & Assoc., PLLC', 52 AD3d 401, 401 (!st Dept 2008) (affirming

dismissal of third-party complaint for contribution and indemnification, brought by defendant

attorney being sued for malpractice, where third-party defendant did not represent plaintiff '·as

defendant's successor Uf1:1il after expiration of the limitations period on the [underlying] personal

injury claim").

Here, the precise nature of Weitzman Law's claim against Baron Associates is vague. It

may be read as seeking a declaration of its right to be indemnified by Baron Associates or a claim


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for indemnification and/or contribution against Baron Associates. Whatever the nature of the

claim, the third-party complaint fails to state a viable cause of action against Baron Associates.

The pleading is devoid of any factual allegations linking Baro'n Associates to Thomas's alleged

injury in the instant malpractice action. In short, the third~party complaint's "bare legal

conclusions'' fail to state a claim against Baron Associates . • ')kif/games, LLC, l AD3d at 250.

Moreover, the Disengagement Letter demonstrates that Baron Associates ended its

representation of Thomas approximately nine months before the Weitzman Defendants assumed

that role and commenced the Underlying Action. As with the Perecman Finn, Baron Associates

was not required to comply with CPLR 321 to withdraw as Thomas's attorneys, because it was not

the attorney of record in the Underlying Action. Its "name never appeared on any of the pleadings,

motion papers, affidavits, briefs or record." Rodriguez, 66 NY2d at 827. Nor was Baron

Associates required to file a closing statement with the Office of Court Administration, pursuant

to 22 NYCRR § 603.25 (b), to formally end its representation of Thomas. The rule is "regulatory

in nature, ... designed for the supervision of attorneys rather than to determine their status as the

attorney of record." Rodriguez, 66 NY2d at 827.8 Accordingly, Baron Associates ended its

representation of Thomas before the Weitzman Defendants commenced the Underlying Action

and, thus, "did not share in defendant's responsibility for plaintiff's alleged loss." Rivas, 52 AD3d

at 40 I.

Next, the Weitzman Defendants contend that Baron Associates' motion should be denied,

because it is in violation of Judiciary Law § 487, which provides penalties for intentionally

deceiving the court. This Court can find no basis for this assertion. The third-party complaint

8 Rodriguez discusses the application ofNYCRR § 603.7, which was renumbered as 22 NYCRR § 603.25, effective October I, 2016.

15187612016 THOMAS, TIFFANY vs. WEITi:MAN, RAPHAEL Motion No. 001 002

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does not contain a Judiciary Law§ 487-based cause of action or any allegations to support such a

claim. The Weitzman Defendants' opposition to the instant motion alludes to acts of fraud and

deceit, without any factual allegations describing these acts. See Weitzman affirmation in

opposition at 6-7. Accordingly, the Weitzman Defendants fail to demonstrate the applicability of

Judiciary Law§ 487. See Agostini v Sobol, 304 AD2d 395, 396 (1st Dept 2003) ("The court

properly dismissed the cause of action alleging a violation of Judiciary Law§ 487, since plaintiff

did not sufficiently plead facts demonstrating that defendant attorneys had the 'intent to deceive

the court or any party,"' quoting Judiciai-y Law§ 487 [l]).

To the extent that the Weitzman Defendants argue that the motion is premature, they fail

to "specify what facts warrant further discovery." Warshaw Burstein Cohen Schlesinger & Kuh,

LLP, I 06 AD3d at 537. Instead, this portion of the opposition merely quotes and cites extensively

to cases discussing CPLR 321 l (a) (7) and 3211 (d), and concludes that "the above controlling

authority'' requires denial of the motion: Weitzman affirmation in opposition at 8.

For the foregoing reasons, third-party defendant Baron Associates' motion to dismiss the

third-party complaint as against it is granted.

11. Sanctions

Baron Associates seeks costs and sanctions against the Weitzman Defendants because,

despite informing them, on several occasions, that the claim against Baron Associates was without

merit, the Weitzman Defendants refused to discontinue the third-party action. The Weitzman

Defendants counter that, to the extent Baron Associates seeks sanctions in connection with the

Western District Action, such relief should have been sought in the federal court. In addition, they

argue that Baron Associates is guilty of frivolous conduct because it refused to provide the original


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documents to demonstrate that it ended its attorney-client relationship with Thomas and failed

make a reasonable inquiry into the viability ofThomas's claims in the Underlying Action.

1'he court has wide discretion in determining whether to award costs, including reasonable

attorneys' fees, or impose sanctions for frivolous conduct. See 22 NYCRR 130-1.1 (a); see also

Pickens v Castro, 55 AD3d 443, 444 (1st Dept 2008). "fCJonduct is frivolous if: (1) it is

completely without merit in law ... ; (2) it is undertaken primarily to delay or prolong the resolution

of the litigation ... ; or (3) it asserts material factual statements that are false." 22 NYCRR 130-

1.1 (c). Among other factors, "[i]n detennining whether the conduct undertaken was frivolous,

the court shall consider ... whether or not the conduct was continued when its lack of legal or

factual basis was apparent, should have been apparent, or was brought to the attention of counsel

or the party." Id.

Here, Baron Associates no longer represented Thomas at the time that the Weitzman

Defendants commenced the Underlying Action. As explained above, the Weitzman Defendants'

argutnents to the contrary are completely without merit. Despite having had ample opportunity to

do so, the Weitzman Defendants have yet to articulate any factual or legal basis for assigning any

fault to Baron Associates. Even assuming that the Weitzman Defendants were unaware that their

claim against Baron Associates was meritless, Baron Associates put them on notice of this fact on

August 25, 2016, after the Weitzman Defendants brought a third-party action against it in the

Western District. Nonetheless, the Weitzman Defendants opted to bring the Monroe County

Action and to oppose Baron Associates' motion to dismiss.

The frivolity ofthe.Wc.itzman Defendants' position is demonstrated by their submissions

to this Court. Their opposition fails to respond to the arguments raised by Baron Associates and

largely consists of, what appears to be, a sloppy "copy/paste" job of the pertinent- legal standards,


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followed by conclusory statements that Baron Associates' motion should be denied. These

conclusoty assertions are interspersed with a liberal sprinkling of aspersions cast against their

former client as well as Baron Associates, which allegedly conspired to mislead this court and to

"inveigle [the Weitzman Defendants] in order to maliciously sue [the Weitzman Defendants] for

professional malpractice." Weitzman affirmation in opposition at 6. No factual basis is provided

for these allegations.

The Weitzman Defendants' opposition also contains vague, half-formed arguments, which

only serve to underscore the frivolity of their position. For example, they argue that Baron

Associates' submissions are incomplete or illegible, stating that: "[t]he alleged Notice of Claim is

incomplete and has been improperly scanned. The Postage receipt too, is incomplete and was

intentionally scanned on top of the Notice ofClai'!1 rather than on a separate page to obscure the

notice of claim. The alleged closing Statement Lacks a filing stamp." Weitzman affirmation in

opposition at 9. However, they do not explain how these alleged defects translate into a viable

claim against Baron Associates. Another, and more disturbing, example is the Weitzman

Defendants' contention that "Third Party Defendants never disputes [sic] [the Weitzman

Defendants'] statements that Plaintiff Thomas' [sic] claims are statutorily. barred, fraudulent and

failed to reasonably inquire into same, consistent with legal and ethical requirements." Id. at 11.

This allegation is particularly troubling, as it implies that the Weitzman Defendants commenced

the Underlying Action, certifying that that there was a reasonable basis for the action, knowing

that it was "statutorily barred" and "fraudulent." Id.

The Weitzman Defendants have had ample time to investigate the legal and factual bases

of their claim against Baron Associates. In pursuing a claim that "is completely without merit in

law," Weitzman Law and Weitzman, as its attorney, are guilty of frivolous conduct. 22 NYCRR


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130~1.1 (c); see Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 (I st Dept 2002) (imposing

sanctions and awarding attorneys' fees for prosecuting a frivolous appeal, where the briefs

submitted, which were "completely devoid of relevant discussion, ... vividly reflect[ ed] ... the

appeal's utter lack of even arguable merif' and where the plaintiffs attorney insulted opposing

counsel, "ma[de] baseless, serious accusations against the motion court, ma[de] unsupported

accusations against defendant, seriously mischaracterize[d] the record and ma[ de} no reference to

recent adverse authority"); see also CGttani v Marfuggi, 26 Misc 3d 1053, 1059 (Sup Ct, NY

County 2009), affd 74 AD3d 553 (!st Dept 2010) (awarding reasonable attorneys' fees and

imposing sanctions, where "the lack of merit was brought to plaintiffs and his counsel's attention,

and they persisted in maintaining the action"). Therefore, to the extent that Baron Associates seeks

reasonable expenses and attorneys' fees arising from the Monroe County Action and the instant

action, including expenses incurred in connection with the instant motion, its motion is granted.

That branch of the motion seeking sanctions is denied.

Therefore, in light of the foregoing, it is hereby:

ORDERED that the motion of defendants Raphael Weitzman and Weitzman Law Offices,

L.L.C., to dismiss the complaint, change venue and disqualify plaintiffs attorneys (motion

sequence number 00 I) is denied in its entirety; and it is further

ORDERED that the branch of the motion by third-party defendant Baron Associates, P.C.

to dismiss the third-party complaint (motion sequence number 002) is granted and the third-party

complaint is dismissed in its entirety as against said third-party defendant, with costs and


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disbursements to said third-party defendant as taxed by the Clerk of the Court, and the Clerk is

directed to enter judgment accordingly in favor of said third-party defendant; and it is further

ORDERED that the third-party action is severed and continued against the remaining third-

party defendants; and it is further

ORDERED that the branch of the motion (motion sequence 002) by third-party defendant

Baron Associates, P.C. seeking reasonable expenses and attorneys' fees incurred in connection

with the Monroe County action and the instant action, including the instant motion, is granted and

defendants Weitzman Law Offices, L.L.C. and Raphael Weitzman, Esq. and third-party plaintiff

Weitzman Law Offices, I •. L.C. shall, due to their frivolous conduct as defined in Section 130-1.1

( c) of the Rules of the Chief Administrator, jointly and severally reimburse third-party defendant

Baron Associates, P.C. for such expenses and attorneys' fees; and it is further

ORDERED that the issue of reasonable expenses incurred and reasonable attorneys' fees

incurred by Baron Associates, P.C. in defending the claims by Weitzman Law Offices, L.L.C. is

referred to a Special Referee to hear and report; and it is further

ORDERED that counsel for the third-party defendant shall, within 30 days from the date

of this order, serve a copy of this order with notice of entry, together with a completed Information

Sheet (copies are available in Room 1l9M at 60 Centre Street and on the Court's website at

www.nycourts.gov/supctmanh under "References") upon the Special Referee Clerk in the Motion


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Support Office (Room 119M), who is directed to place this matter on the calendar of the Special

Referee's Part for the earliest convenient date; and it is further

ORDERED that counsel are directed to appear for a discovery conference at 80 Centre Street,

Room 280, on June 26, 2018, at 2: 15 P.M.; and it is further

ORDERED that this constitutes the decision and order of the court.

3126/2018 DATE

CHECK ONE:

§ CASE DISPOSED

GRANTED D DENIED

SETTLE ORDER

DO NOT POST

APPLICATION:

CHECK 1F APPROPRIATE:


~ NON·"NAC DISPOSITION

GRANTED IN PART

SUBMIT ORDER

FIDUCIARY APPOINTMENT

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D REFERENCE

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Documents

Thomas v Weitzman · Perecman Finn, P.L.L.C. and Baron Associates P.C." Weitzman affirmation, ,-i 17. The Weitzman Defendants allegedly failed to serve the Underlying Action's summons