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Long Island Office Paul Black v. Jeffrey S. Schwartz and Law Office of Jeffrey S. Schwartz

September 17, 2012


The opinion of the court was delivered by: Seybert, District Judge:

FILED CLERK 9/17/2012 1:57 pm


Plaintiff Paul Black ("Plaintiff") sued Defendants Jeffrey S. Schwartz and the Law Office of Jeffrey S. Schwartz (together, "Defendants") for legal malpractice arising out of sanctions that Plaintiff was forced to pay in an earlier lawsuit in California. Pending before the Court are Defendants' motions for summary judgment (Docket Entry 65) and attorneys' fees relating to a discontinued portion of this suit (Docket Entry 46). Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Their motion for attorneys' fees is DENIED.


In 2005, Plaintiff retained Defendants to pursue civil claims against a real estate development company and other defendants in a case arising out of a real estate deal gone bad. The facts of that case, Black v. ebb Communities, Inc., No. 05-CV-8743 (C.D. Cal.) (the "California Action"), are set forth in U.S. District Judge S. James Otero's December 5, 2006 summary judgment decision (Defs. Ex. M) and his March 27, 2007 decision sanctioning Plaintiff for various litigation misconduct (Defs. Ex. K (the "Sanction Order")). The Sanction Order also contains a near-comprehensive discussion of the facts relevant to this case. Briefly, though, the Court will provide a few background facts to put the following analysis into context.

The California Action centered on a Nevada housing deal that didn't pan out. To put it mildly, the case did not go well for Plaintiff. He had sued the developer on the deal and others, including Land America Financial Group ("Land America"). Land America was the corporate grandparent of Lawyer's Title of Nevada, Inc. ("LTN"), the escrow agent for the project. At the motion to dismiss stage, the court found that an arbitration agreement covered most of Plaintiff's case and dismissed all defendants except for Land America. Later, the court awarded Land America summary judgment because, among other reasons, Land America (as opposed to its subsidiary) had nothing to do with the events that precipitated the lawsuit. Then, the court sanctioned Plaintiff and ordered him to pay Land America the attorneys' fees it incurred in defending the case.

The misconduct underlying the fee award is detailed in the thorough Sanction Order. Suffice it to say here that Plaintiff and Defendants--Plaintiff's counsel in the California Action--sharply disagree as to who should bear the payment. Plaintiff paid the sanction and, in the instant action, is suing Defendants in legal malpractice for repayment of that money.


The Court first addresses Defendants' motion for summary judgment and then considers their motion for attorneys' fees.

I. Summary Judgment

Defendants' summary judgment motion is granted in part and denied in part.

A. Legal Standard

Summary judgment is only appropriate where the moving party can demonstrate that there is "no genuine dispute as to any material fact" and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P. 56(c). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict ...

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