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NARDELLA v. BRAFF

November 21, 1985

JANET NARDELLA, as Administratrix of the Estate of MATTHEW NARDELLA, and JANET NARDELLA, individually, Plaintiffs,
v.
HAROLD I. BRAFF, MICHAEL I. LITVAK, LEO ERTAG, FREDERICK A. WORTMANN, BRIAN C. HARRIS, IRA SUKONECK and BRAFF, LITVAK, ERTAG, WORTMANN, HARRIS and SUKONECK, GEORGE C. NARDELLA, NARDELLA & NARDELLA, and ROY J. KONRAY, Defendants



The opinion of the court was delivered by: STANTON

OPINION AND ORDER

LOUIS L. STANTON, D.J.

This case is before the court on plaintiff Janet Nardella's motion pursuant to Fed. R. Civ. P. 15(a) for leave to amend the complaint. Janet Nardella is proceeding individually and as administratrix of the estate of Matthew Nardella against the law firm of Braff, Litvak, Ertag, Wortmann, Harris and Sukoneck ("Braff") and some of its individual members, alleging legal malpractice. Plaintiff's motion is granted in part, on consent, and denied as to the balance.

 The action has its source in an automobile accident in which Matthew Nardella was killed. His wife Janet Nardella retained the defendants to prosecute a negligence action against four potential defendants for the wrongful death of Matthew Nardella and for the concomitant loss of services suffered by her. (Compl. [P] 2) She charges that defendants accepted and investigated the case, but failed to institute suit before the statute of limitations expired. (Compl. [PP] 3-7).

 Plaintiff seeks to amend her complaint in four respects. She wishes to add the individual attorneys George Nardella, Esq. and Ron Konray, Esq. and the law firm of Nardella & Nardella, as additional defendants. She also would add a second cause of action alleging breach of contract. Defendants do not oppose these amendments. *fn1" Plaintiff is accordingly granted leave to amend the complaint, adding those defendants and the cause of action alleging breach of contract.

 Plaintiff also seeks to add two statutorily-based causes of action. The first is a claim under § 487 of the New York Judiciary Law, and the second is a claim under § 349 of the New York General Business Law. Defendants oppose the addition of these statutory claims.

 Leave of court is required for a party to amend his pleading when the adverse party has already served a responsive pleading and does not consent to the amendment. Fed. R. Civ. P. 15(a). That is the situation here. The rule provides that "leave shall be freely given when justice so requires," and the Supreme Court has stated that "this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).

 The Court went on in Forman, however, to note that "futility of amendment" is sufficient reason to deny a motion for leave to amend. Id. at 182. It is well settled that it is not an abuse of discretion to deny leave to amend a complaint when the new claims could not withstand a motion to dismiss. Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1973); Wrenn v. New York City Health and Hospitals Corp., 104 F.R.D. 553, 557 (S.D.N.Y. 1985). As one court has stated, "[t]he liberal amendment rules of Fed. R. Civ. P. 15(a) do not require that courts indulge in futile gestures." De Loach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968). Thus plaintiff may not be granted leave to amend if the statutory claims fail to state a cause of action. *fn2"

 Section 487 of the New York Judiciary Law

 In the proposed amended complaint, plaintiff alleges that defendants practiced "a deceit upon their former client, Janet Nardella," in that they "has themselves retained by plaintiff [and] they advised plaintiff, both expressly and impliedly, that they were legally competent to prosecute such a case when in fact they were not." (Proposed Amended Compl. [P] 32).

 The facts as alleged in plaintiff's proposed amended complaint fail to state a cause of action under § 487 of the New York Judiciary Law. *fn3" First, the statute has been held by the Second Circuit not to apply extraterritorially. Schertenleib v. Traum, 589 F.2d 1156, 1166 (2d Cir. 1978). The proposed complaint alleges no conduct within the borders of the New York State. Second, the statute applies only to attorneys who are guilty of deceit with intent to deceive "any party." For a civil action to lie for violation of § 487 the deceit complained of must occur during the pendency of a court action. Singer v. Whitman & Rowan, 83 A.D.2d 862, 442 N.Y.S.2d 26, 27 (1981). Here plaintiff's grievance is that no action was ever filed. For both reasons, plaintiff's proposed amended complaint fails to state a cause of action under § 487.

 Section 349 of the New York General Business Law

 In the proposed amended complaint, plaintiff alleges that "defendants engaged in deceptive acts and practices, illegal under New York General Business Law Section 349." *fn4" The charge is based upon defendants' failure to bring an action on behalf of Janet Nardella before the expiration of the period of limitations, and upon defendants' allegedly false assurances that "they were legally competent to prosecute Nardella's case when in fact they were not." (Proposed Amended Compl. [PP] 23, 32, 35) Plaintiff's allegations are not cognizable under § 349. On its face the statute proscribes "deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." (emphasis added) As previously stated, plaintiff makes no allegations of conduct by defendants within New York. *fn5"

 Plaintiff has cited no case in which § 349 was applied to an attorney's handling of a case for an individual client, and the legislative history of § 349 argues against such an application. The intention of the New York Legislature "in enacting § 349 of the General Business Law was to follow in the steps of the Federal Trade Commission with respect to the interpretation of deceptive acts and practices outlawed in Section 5 of the Federal Trade Commission Act (15 ...


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