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Ferdinand v Crecca & Blair
2002 NY Slip Op 30160(U)
October 1, 2002
Supreme Court, Suffolk County
Docket Number: 02-12234
Judge: Robert W. Doyle
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SHORT FORM ORDER                                                                                        Action    Index No.
02-12234
SUPREME COURT  STATE OF NEW YORK
DCM PART  SUFFOLK COUNTY
P R E S E N T :
Motion Seq.  001
Hon.  ROBERT W. DOYLE                                                                                   Motion RD September 16, 2002
Justice of  the Supreme Court                                                                           MG Case Disp
Crecca & Blair and Andrew A. Crecca,
Defendants,
X
Plaintiffs Attorney                                                                                                                                                                             Attorney for Defendants
Robert                                                                                                  Esq.                                                                                    Balkan,                        & Contini, LLP
1400 Old Country Road                                                                                                                                                                           1050 Franklin Avenue
Westbury, New York 1 1590                                                                                                                                                                       Garden City, New York 1 1530
Motion and supporting papers                                                                                                                                                                                                   ;A nswering Affidavits and supporting papers   -   ; Replying Affidavits and supporting
papers                                                                                                  ;O ther                                                                                 ; it is
This Corrected Decision and Order is hereby issued to correct only                                      errors and does
not change or alter the Decision and Order of September 18,2002.
ORDERED application (001) by defendants Crecca   Blair and Andrew A. Crecca for an Order
granting dismissal of the complaint of plaintiff Paulette Ferdinand pursuant to CPLR
in that the statute of limitations has run as to the fifth and seventh causes of action, and pursuant
to CPLR                                                                                                 for failure to state a cause of action as to the first, second, third, fourth, sixth,
eighth and ninth causes of action, and pursuant to Part 130 of the Rules of the Chief Administrator
for an award for costs and sanction, unopposed by plaintiff, is decided as follows:
This action was commenced by the filing of a summons and verified                                       on May 21,2002.
It is not asserted that issue has been joined.  The causes of action set forth in the complaint are
premised upon defendants’ representation of plaintiff from on or about December 13,1999 through
August 3, 2001, wherein plaintiff sought a divorce from her husband. However, before the divorce
proceedings were completed, plaintiff and her husband entered into a stipulation discontinuing the
divorce action on August 3,2001, and plaintiff, Paulette Ferdinand discharged Crecca and Blair as
her attorneys as set forth on that stipulation dated August 3, 2001.  Procedurally, plaintiff did not
respond to defendants’ Notice of Right to Arbitrate with regard to the fee alleged to be owed
defendants by plaintiff, so defendants commenced an action in District Court to collect their fee.
Thereafter, plaintiff commenced the instant action.
In reviewing the complaint, plaintiff has set forth the following:




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first cause of action sounding in breach of contract wherein it is alleged that defendant
Crecca made reference to plaintiffs new born son, in front of her husband, that he could be the
father of that child which interfered with a negotiated divorce settlement and caused emotional
distress; and a
second cause of action sounding in fraud with regard to the concealing or alleged failure of
defendant Crecca and Blair to mention to plaintiff that they permitted the stay of eviction to lapse,
causing plaintiff to lose leverage to maintain interest in her house and to cause her to feel that her
husband was prevailing in the divorce action; and a
third cause of action sounding in negligence and/or wilful and reckless conduct wherein it
is claimed that defendants were negligent and caused plaintiff to suffer damages by sexually
harassing plaintiff and defendant Crecca stating in front of her husband that he could be the father
of her baby; and a
fourth cause of action sounding in fraud wherein it is alleged  defendants failed to inform
plaintiff that they allowed the stay to lapse and fraudulently deceived plaintiff by failing to advise
plaintiff that they allowed the                                                                           to lapse in the District Court action; and a
fifth cause of action sounding in intentional infliction of mental distress for the acts and
conduct of defendants; and a
sixth cause of action for sexual discrimination against plaintiff in violation of New York
Executive Law                                                                                             by failing to provide plaintiff with the same quality, accommodations, privileges
and kind of representation afforded members of the opposite sex at the same price and/or fees; and
seventh cause of action sounding in defamation by defendant Crecca based upon his
alleged slanderous comment that “I  could be the father of that child,” in front of her husband and
husband’s attorney; and an
eighth cause of action for defendant Crecca’s alleged violation of  various sections of the
New York State Code of Professional Responsibility; and a
ninth cause of action asserting that defendants were in violation of various sections of the
New York State Code of Professional Responsibility.
With regard to that part of defendants’ application pursuant to CPLR                                      1                                                                                                          asserting that the
fifth and seventh causes of action are barred by the expiration of the applicable  statute of
limitations,  it is determined that the fifth  cause of action sounding in intentional infliction of
emotional distress, and the seventh cause of action asserting defamation based upon an alleged
slanderous statement by defendant Crecca, are both governed by a one year statute of limitations
pursuant to CPLR                                                                                          719                                                                                                        606.   The alleged incidents giving rise
to the fifth cause of action premised upon intentional infliction of emotional distress are asserted to
have occurred on March 17, 2000, May 11, 2000, June 28,2000. The alleged incidents giving rise
to the seventh  cause of action are alleged to have occurred on August 8, 2000.  This action was
commenced on May, 21, 2002, beyond the applicable one year  statute of limitations for both
causes of action. Accordingly, the fifth and seventh causes of actions are barred by the applicable
statute of limitations and are therefore dismissed.
With regard to defendants’ application for dismissal of the complaint pursuant to CPLR
                                                                                                          it is well settled that in response to a motion pursuant to                                                                                                      pleadings shall be
                                                                                                          liberally construed, the facts as alleged accepted as true, and every possible favorable inference
given to plaintiffs, (Leon                                                                                                                                                                                           On such a motion, the Court is limited to examining
                                                                                                          the pleading to determine whether it states a cause of action,                                             v.                                                    43
401                                                                                                       182).  In examining the                                                                                    of the pleading, the Court must
                                                                                                          accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff
(Matter of Board                                                                                          Lakeland Cent. School                                                                                      Oak   State                                           Dept., 1 16
939, 498                                                                                                  516).  Only affidavits submitted by the plaintiff in support of the causes




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of action may be considered on a motion of this nature (Rovello v.
633, 645-636, 389                                                                                         314). On such a motion, the Court’s sole inquiry is whether the facts
alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary
support for the complaint (Leon v.                                                                        supra).
In reviewing the remainder of the complaint, it is determined that plaintiff has pleaded a first cause
of action for breach of contract with regard to defendant Crecca’s representation of plaintiff in her
divorce action.  In that plaintiff reconciled with her husband, discontinued the divorce action by
entering into a stipulation signed by both plaintiff and her husband, this first cause of action has
been rendered academic.   Also, the cause of action sounding in contract is actually a redundant
claim for legal malpractice and is predicated upon the same factual allegations as the malpractice
claim based upon the alleged statement made by defendant Crecca concerning her son and seeks
                                                                                                          damages which may be recovered on that cause of action, (Mecca   Shang, 685                                                                                                                458;
v.                                                                                                        279                                                                           763,765,718                                                  489
Accordingly, the first cause of action sounding in breach of contract is dismissed for failure to state
a cause of action.
The second and fourth causes of action sounding in fraud are actually a restatement of the third
cause of action  which sounds in                                                                          conduct  and seeks the same damages
which may be recovered on that cause of action. Plaintiff has not set forth separate damages
relative to the claim of fraud  distinct from the claim of the alleged malpractice, and damages are
limited to  “actual pecuniary loss sustained as the direct result of the  ‘wrong”’,
supra. Additionally, an attorney’s failure to disclose a malpractice does not give rise
to claims for fraud and deceit separate from the underlying malpractice cause of action, Weiss v.
616                                                                                                       83                                                                            974.   Nor has plaintiff pleaded reliance upon defendants’
alleged fraudulent acts or representations. Therefore, the second and fourth causes of action
sounding in fraud are dismissed for failure to state a cause of action.
With regard to the third cause of action, it appears plaintiff attempted to set forth a cause of action
sounding in legal malpractice. To establish a cause of action for legal malpractice, plaintiff must
show that the attorneys were negligent, that negligence was the proximate cause of plaintiffs
damages, and that plaintiff suffered actual damages as a direct result of the attorneys’ actions,
Franklin v.                                                                                               606                                                                           162,199                                                      220. Plaintiff does not assert actual damages
claimed to be the result of any alleged malpractice on defendants’ behalf. Nor has plaintiff pleaded
the fourth element to be proven, this is, that plaintiff would have been successful in the underlying
action had the attorney exercised due                                                                     717                                                                           873.  Plaintiff reconciled
with her husband and voluntarily discontinued the divorce action.  Accordingly, the third cause of
action fails to state a cause of action for  legal malpractice or professional negligence and is
dismissed.
Turning to the sixth cause of action premised upon defendants’ alleged violation of Executive Law
plaintiff has failed to plead a cause of action in that she has not pleaded that she was a
member of the class of persons which the statute seeks to protect. Plaintiff does not allege she was
employed by defendants, or discriminated against by a labor organization or employment agency;
owner, lessee, proprietor, superintendent, manager, agent, or employee of a place of public
accommodation, or that she falls within any of the categories or sections set forth in Executive Law
5296. Accordingly, plaintiff has failed to state a cause of action premised upon defendants’ alleged
violation of New York Executive Law                                                                                                                                                     and the sixth cause of action is therefore dismissed,
599                                                                                                       841.
The eighth and ninth causes of action are premised upon defendants’ alleged violations of various
sections of the Code of Professional Responsibility and Disciplinary Rules.  A violation of a




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disciplinary rule, does not, in itself, generate a cause of action                                            v. Choe, 674                                                     17;
677                                                                                                           48, although some of the conduct constituting a violation of a
disciplinary rule may also constitute evidence of malpractice.  While plaintiff may have set forth
certain allegations in an attempt to support of a claim for breach of contract or negligence, plaintiff
has not set forth a cognizable cause of action in either the eighth or ninth causes of action,
therefore, the eighth and ninth causes of action, premised upon defendants’ alleged violations of
the various sections of the Code of Professional Responsibility, are hereby dismissed.  It is
ORDERED that application (001) by defendants for an Order dismissing the first, second, third,
fourth, fifth, sixth, seventh, eighth and ninth causes of action as asserted by plaintiff in the complaint,
is granted, and the action is hereby dismissed.  It is further
ORDERED that the moving defendants shall serve a copy of this Order with notice of entry on all
parties within thirty  days of the date of this Order.
Dated: October 1, 2002

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