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Cusimano v. Wilson

Supreme Court, New York County

September 9, 2013

RITA S. CUSIMANO, Plaintiff,
v.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKLER, LLP and ED BOYLE, Defendant. Index No. 152754/2013

Unpublished Opinion

DECISION/ORDER

CYNTHIA S. KERN, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered

Notice of Motion and Affidavits Annexed....................................1

Answering Affidavits......................................................................2

Cross-Motion and Affidavits Annexed...........................................

Answering Affidavits to Cross-Motion...........................................

Replying Affidavits......................................................................

Exhibits......................................................................................3

Plaintiff commenced the instant action alleging that defendants negligently represented her in an underlying arbitration. Defendants now move pursuant to CPLR § 3211(a)(1), (a)(5) and (a)(7) to dismiss plaintiffs complaint with prejudice on the grounds that: (1) the record from the underlying litigation unequivocally establishes that plaintiffs claim is without merit; (2) plaintiff is barred from asserting her claims by collateral estoppel; and (3) plaintiffs complaint fails to state a cause of action as a matter of law. For the reasons stated below, defendants' motion is granted.

The relevant facts are as follows. In April of 2010, plaintiff retained defendants Ed Boyle ("Ed Boyle") and Wilson, Elser, Moskowitz, Edelman & Dicker LLP ("Wilson Elser") to represent her interests in connection with a family asset. Thereafter, Boyle and Wilson Elser initiated a special proceeding on behalf of plaintiff against her sister in Supreme Court, Nassau County seeking dissolution of the Strianese Family Limited Partnership ("FLIP"). Bernard and Carmella Strianese, plaintiffs parents, intervened in the action for an accounting and dissolution, asserting that they remained the majority owners of the FLIP. They further asserted that the FLIP Agreement governed the dispute and as such was subject to arbitration. The Supreme Court, Nassau County permitted intervention by stipulation and order dated May 24, 2010, and granted interveners' motion to compel arbitration.

In December 2010, arbitration commenced before the American Arbitration Association (the "AAA"). The issue on arbitration was whether the parents transferred 100% of the FLIP to their daughters. During arbitration, plaintiff argued that her parents gifted full ownership of the FLIP to herself and her sister Bernadette and no longer owned any part of the FLIP. Specifically, plaintiff and her sister sought to invoke, inter alia, the doctrine of tax estoppel on the ground that the tax returns of the FLIP did not reflect her parents' ownership and as such her parents should be estopped from claiming ownership during arbitration. In opposition to this argument, plaintiffs parents offered evidence demonstrating that the FLIP'S accountant and plaintiffs sister Bernadette were responsible for preparing the FLIP's tax returns from 2001 on and that those tax returns were signed by Bernadette, not Bernard. Bernadette herself testified that the 2001-2009 tax returns for the FLIP were signed by her in Bernard Sudanese's name.: Only the FLIP's tax returns were offered into evidence.

On February 10, 2011, the AAA issued a decision and award, as modified, determining that the parents retained roughly 91 % ownership in the FLIP, while plaintiff and her sister had amassed 4.5% ownership interests each (the "Award"). Specifically, the. arbitration panel stated: "We did not find either [of respondent's] position[s] credible, nor the various tax and Florida filing documents they offered sufficient to equitably estop ...


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