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Boye v. Rubin & Bailin, LLP

Supreme Court of New York, First Department

May 30, 2017

Frank Boye, Plaintiff-Appellant,
v.
Rubin & Bailin, LLP, etc., et al., Defendants, Eric Vaughn-Flam, P.C., et al., Defendants-Respondents.

         Plaintiff appeals from the judgment of the Supreme Court, New York County (Kathryn E. Freed, J.), entered October 28, 2015, to the extent appealed from as limited by the briefs, dismissing the complaint as against defendant Eric Vaughn-Flam, P.C. (the firm), and bringing up for review, an order of the Supreme Court, New York County (Louis B. York, J.), entered January 17, 2012, which, upon granting leave to reargue, partially granted the firm's CPLR 3211(a)(1) and (a)(7) motion to dismiss the claims against it to the extent of dismissing the legal malpractice claims based on the firm's alleged withdrawal of certain claims previously asserted on plaintiff's behalf in the underlying federal suit, and an order of the same court (Louis B. York, J.), entered July 24, 2012, which granted the firm's CPLR 3212 motion for summary judgment dismissing the remaining claims against it.

          Andrew Lavoot Bluestone, New York, for appellant.

          Ortoli Rosenstadt LLP, New York (Eric Vaughn-Flam of counsel), for respondents.

          Peter Tom, J.P., Karla Moskowitz, Paul G. Feinman, Judith J. Gische, Barbara R. Kapnick, JJ.

          OPINION

          TOM, J.P., J.

         This action seeks damages for alleged legal malpractice committed by, as is relevant to this appeal, defendants Eric Vaughn-Flam, PC (the firm) and Eric Vaughn-Flam, Esq. We find that Supreme Court properly dismissed the legal malpractice claims against defendants based on, inter alia, defendants, alleged withdrawal of certain causes of action previously asserted on plaintiff's behalf in an underlying federal suit. Separately, our review of the history of this litigation contained in the record and this frivolous appeal persuades us to impose sanctions on plaintiff's counsel.

         Plaintiff, a Danish citizen, owned or was the authorized agent for many works of fine art that he brought to New York to sell. He contracted with Jurdem Associates, Inc., a public relations firm, to facilitate the sales, and, on its recommendation, contracted with Jan Amory to display the art in her Manhattan apartment. In March 2003, plaintiff realized numerous works of art were missing from the apartment.

         Plaintiff retained defendants to commence the underlying federal action. On March 20, 2006 - more than three years after plaintiff discovered the missing art - defendants filed a complaint (the federal complaint) on his behalf in the Southern District of New York against Jurdem Associates, its sole shareholder, Arnold Jurdem (collectively the Jurdem defendants), and Amory, in connection with approximately 47 works of art that were improperly taken or lost. The federal complaint alleged fraud, conversion, and breach of the "Amory Contract" against all the defendants, and an additional claim of breach of the "Jurdem Contract" against the Jurdem defendants.

         On November 1, 2006, after their relationship with plaintiff had deteriorated, the firm moved to withdraw as his counsel in the federal action, and on November 14, 2006, the Southern District granted the motion.

         On January 18, 2007, successor counsel Jan Meyer of Jan Meyer & Associates P.C. filed a notice of appearance in the federal action on plaintiff's behalf. On August 2, 2007, Meyer filed an amended federal complaint, which alleged seven causes of action which included the four counts in the original complaint filed by Vaughn-Flam, and the additional claims of negligence, breach of fiduciary duty, and piercing the corporate veil against the Jurdem defendants.

         On November 26, 2007 the Jurdem defendants moved for summary judgment dismissing all claims against them. On December 17, 2007, Meyer - plaintiff's successor counsel - opposed the motion in part, and voluntarily withdrew the conversion and breach of the Armory contract claims against the Jurdem defendants.

         In an order dated August 27, 2008, the Southern District (Kevin Castel, J.), granted the Jurdem defendants' motion in part . Initially, the court deemed the voluntarily withdrawn conversion and breach of the Amory contract claims dismissed. The court also dismissed in part the negligence and breach of fiduciary duty claims against the Jurdem defendants as time-barred. Because the court found both were tort claims, and the statutes of limitations began to run "upon injury, " the court dismissed as time-barred those negligence and breach of fiduciary duty claims "that are based on the sale or other removal of Artwork from Amory's apartment that occurred prior to March 20, 2003, " i.e., more than three years before the complaint was filed. The Southern District also denied summary judgment on the breach of the Jurdem contract, fraud, and piercing the corporate veil claims against Jurdem Associates. However, it dismissed the breach of the Jurdem contract, negligence, breach of fiduciary duty, and fraud claims against Arnold Jurdem individually. On February 4, 2009 Boye settled the case with the Jurdem defendants.

         In the meantime, Amory never appeared or answered the complaint, so claims against her were not addressed in the motion papers in the federal action. Yet, successor counsel never sought a default judgment against her on the conversion and breach of the Amory contract claims (which successor counsel had not withdrawn), or on the fraud claim.

         On March 6, 2010, plaintiff, through his attorney, Andrew Lavoott Bluestone, who represents him on this appeal, commenced this action against defendants, alleging legal malpractice and breach of fiduciary duty. Significantly, the complaint alleges, inter alia, that defendants "negligently failed to render competent legal service when, they unilaterally, without notice and without consent, voluntarily withdrew all claims of conversion and breach of contract against [the Jurdem defendants]." It also alleges that they failed to file the federal complaint in a timely manner. The ...


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