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
Lavoot Bluestone, New York, for appellant.
Rosenstadt LLP, New York (Eric Vaughn-Flam of counsel), for
Tom, J.P., Karla Moskowitz, Paul G. Feinman, Judith J.
Gische, Barbara R. Kapnick, JJ.
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.
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.
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.
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.
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.
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
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.
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.
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 ...