Ha, White Plains, NY, for appellants.
Brisbois Bisgaard & Smith LLP, New York, NY (Mark K.
Anesh and Paula Gilbert of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for legal malpractice, breach of
fiduciary duty, and abuse of process, the plaintiffs appeal
from an order of the Supreme Court, Kings County (Toussaint,
J.), dated October 29, 2014, which granted the
defendants' motion pursuant to CPLR 3211(a) to dismiss
the complaint, and denied their cross motion to deem the
summons and complaint to have been adopted by counsel the
plaintiffs retained after the summons and complaint were
filed and served or for leave to amend the complaint.
that the order is affirmed, with costs.
Supreme Court properly granted that branch of the
defendants' motion which was pursuant to CPLR 3211(a)(3)
to dismiss the complaint insofar as asserted by the
plaintiffs DeMartino Building Co., Inc., and 150 Centreville,
LLC, and denied that branch of the plaintiffs' cross
motion which was to deem the summons and complaint to have
been adopted by counsel they retained after the summons and
complaint were filed and served. A corporation and limited
liability company must be represented by an attorney and
cannot proceed pro se (see CPLR 321[a]; Boente v
Peter C. Kurth Off. of Architecture & Planning,
P.C., 113 A.D.3d 803; Michael Reilly Design, Inc. v
Houraney, 40 A.D.3d 592). Here, DeMartino Building Co.,
Inc., and 150 Centreville, LLC, did not appear by an attorney
when the summons and complaint were filed and served.
Accordingly, the complaint, insofar as asserted by them, was
a nullity, and the action as to them was improperly commenced
(see Hilton Apothecary v State of New York, 89
N.Y.2d 1024; Boente v Peter C. Kurth Off. of Architecture
& Planning, P.C., 113 A.D.3d 803; Cinderella
Holding Corp v Calvert Ins. Co., 265 A.D.2d 444).
Supreme Court also properly granted that branch of the
defendants' motion which was to dismiss the complaint
insofar as asserted by the plaintiff Frank DeMartino.
"Absent fraud, collusion, malicious acts, or other
special circumstances, an attorney is not liable to third
parties not in privity or near-privity for harm caused by
professional negligence" (Fredriksen v
Fredriksen, 30 A.D.3d 370, 372; see AG Capital
Funding Partners, L.P. v State St. Bank & Trust Co.,
5 N.Y.3d 582, 595). Affording the complaint a liberal
construction, accepting the facts alleged therein as true,
and according DeMartino the benefit of every possible
favorable inference (see Leon v Martinez, 84 N.Y.2d
83, 87-88), the complaint fails to plead specific facts from
which it can be inferred that DeMartino was in an
attorney-client or fiduciary relationship, privity, or a
relationship that otherwise closely resembles privity with
the defendants, who were retained to represent DeMartino
Building Co., Inc., and 150 Centerville, LLC, in the
underlying action. Accordingly, the court properly directed
dismissal pursuant to CPLR 3211(a)(7) of the causes of action
alleging legal malpractice and breach of fiduciary duty
insofar as asserted by DeMartino (see Fredriksen v
Fredriksen, 30 A.D.3d at 371; Conti v
Polizzotto, 243 A.D.2d 672, 673).
essential elements of a cause of action sounding in abuse of
process are: "(1) regularly issued process, either civil
or criminal, (2) an intent to do harm without excuse or
justification, and (3) use of the process in a perverted
manner to obtain a collateral objective" (Curiano v
Suozzi, 63 N.Y.2d 113, 116). Here, the Supreme Court
properly directed dismissal pursuant to CPLR 3211(a)(7) of
the cause of action alleging abuse of process insofar as
asserted by DeMartino, as the facts alleged in the complaint
failed to describe conduct on the defendants' behalf
constituting the second and third elements of a cause of
action alleging abuse of process.
Supreme Court also providently exercised its discretion in
denying that branch of the plaintiffs' cross motion which
was for leave to amend the complaint. Although leave to amend
should be freely given in the absence of prejudice or
surprise to the opposing party (see CPLR 3025[b]),
the motion should be denied where the proposed amendment is
palpably insufficient or patently devoid of merit (see
Scofield v DeGroodt, 54 A.D.3d 1017, 1018; Lucido v
Mancuso, 49 A.D.3d 220, 222). "Whether to grant
such leave is within the motion court's discretion, the
exercise of which will not be lightly disturbed"