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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLK
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BARBARA PORTER, BARBARA PORTER as Index No. 622758/18
the ADMINISTRATOR OF THE ESTATE OF
PHILIP PORTER, III, and THE ESTATE OF
PHILIP PORTER, III,
Plaintiffs, Return Date: March 21, 2019
-against-
JEANNE R. BURTON, ESQ.,
Defendant.
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REPLY MEMORANDUM OF LAW
L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P.
Attorneys for Defendant
JEANNE R. BURTON, ESQ.
1001 Franklin Avenue
Garden City, New York 11530
(516) 294-8844
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TABLEOF CONTENTS
Page
PRELIMINARY STATEMENT ............................................................................................... 1
POINT I
PLAINTIFFS HAVE NOT COME CLOSE TO
DEMONSTRATING A REASONABLE EXCUSE FOR
THEIR INEXPLICABLE FAILURE TO TIMELY FILE
AND SERVE A COMPLAINT..................................................................................... 1
POINT II
PLAINTIFFS' PROPOSED CAUSES OF ACTION ARE
BASELESS AND WITHOUT MERIT......................................................................... 5
CONCLUSION.......................................................................................................................... 24
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PRELIMINARY STATEMENT
This memorandum of law is submitted in reply to the opposition of plaintiffs,
Barbara Porter, Barbara Porter as the Administrator of the Estate of Philip Porter, III ("Ms.
Porter") and the Estate of Philip Porter III (the "Estate") (collectively, "Plaintiffs"), to the motion
of the defendant, Jeanne R. Burton, Esq. ("Defendant"), for an Order pursuant to CPLR 3012(b),
dismissing this lawsuit due toPlaintiffs'
failure to timely file and serve a complaint.
First and foremost,Plaintiffs'
opposition should be rejected by this Court since it
was not timely served. Specifically, Defendant's motion was originally returnable on March 7,
2019, but this Court did not assign the instant motion to the DCM Part until March 12d'. At that
time, the Court made the motion returnable the next day, March 13th. InStead of reaching out to
our office and requesting an adjournment or an extension of time to serve opposition papers,
Plaintiffs served their opposition (annexed to which was a proposed verified complaint), on the
afternoon of March 12d'. For these reasons, Defendant submits thatPlaintiffs'
opposition be
disregarded accordingly.
In the alternative, in the event this Court decides to considerPlaintiffs'
opposition, it is respectfully submitted that Plaintiffs have utterly failed to demonstrate: (i) a
reasonable excuse for their failure to timely file and serve a complaint; or (ii) a potentially
meritorious cause of action.
POINT I
PLAINTIFFS HAVE NOT COME CLOSE TO DEMONSTRATING A REASONABLEEXCUSE FOR THEIR INEXPLICABLE FAILURE TO TIMELY FILE AND SERVE A
COMPLAINT
In her affidavit, Ms. Porter does not even attempt to explain her failure to timely
file and serve a complaint. Rather, Plaintiffs rely solely upon the affirmation of their counsel,
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which lacks any probative value. See, McCovey v. Williams, 105 A.D.3d 819, 962 N.Y.S.2d 690
(2d Dep't 2013) ("However, in the instant case, the plaintiffs submission in support of the
unpleaded cause of action was an affirmation of an attorney with no personal knowledge of the
facts. That affirmation was not sufficient to raise a triable issue of fact to defeat the defendant's
prima facie showing of entitlement to judgment as a matter of law with respect to the allegations
in the plaintiffs pleadings"); Lampkin v. Chan, 68 A.D.3d 727, 891 N.Y.S.2d 113 (2d Dep't
2009) ("The defendants interposed only an affirmation of their attorney who...lacked knowledge
of the facts"); Dupree v. Voorhees III, 68 A.D.3d 810, 891 N.Y.S.2d 422 (2d Dep't 2009) ("The
affidavits submitted in opposition were of the plaintiff, the attorney who was substituted for the
appellant in the matrimonial action upon the appellant's release from representation, and the
plaintiffs counsel on this motion and appeal. None of those parties possessed personal
knowledge of what transpired on the day in question").
A review of this affirmation, coupled with the relevant evidence, reveals that it
utterly fails to establish a reasonable excuse forPlaintiffs'
failure to timely file and serve a
complaint.
Defendant served its demand for a complaint (the "Demand") on December 13,
2018. A copy of the Demand is annexed to the affirmation of Matthew J. Bizzaro, Esq. dated
February 14, 2019 (the "Bizzaro Aff.") as Exhibit 3.
Plaintiffs'counsel requested an extension of time to do so, and the parties agreed
thatPlaintiffs'
time to file and serve a complaint be extended until January 24, 2019. See,
Bizzaro Aff., Exhibit 4.
Plaintiffs'counsel never requested a further extension of time prior to the January
24thdeadline.
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Moreover,Plaintiffs'
counsel did not even contact our office when the instant
motion was filed on February 14, 2019, a full three weeks (21 days) after the stipulation ended.
To clarify,Plaintiffs'
counsel made no attempt to contact my office during that
three week period. In fact, the first time I heard fromPlaintiffs'
counsel's office was on March
5"', when his assistant contacted me asking for an extension of time to file and serve the
complaint (not opposition papers). A copy of this e-mail is annexed to the Reply Affirmation of
Matthew J. Bizzaro, Esq. dated March 19, 2019 ("Reply Aff.") as Exhibit 1.
I responded to this e-mail by rejecting his request to file and serve a complaint,
but as a professional courtesy, I offered him an extension of time to serve opposition until March
12tl', if he agreed to extend Defendant's time to reply until March 27tl'. See Reply Aff., Exhibit
2.
Plaintiffs'counsel never responded to my e-mail. Instead, knowing that the
instant motion had been assigned to the DCM Part and made returnable on March 13ti', he served
his opposition papers in the late afternoon of March 12 .
In his affirmation,Plaintiffs'
counsel states:
In the month of February, I was forced to undergo major oral
surgery involving bone grafts, sinus lifts, several extractions and
perhaps a half-dozen root canal surgeries. Without getting into too
much detail, these procedures were necessitated and the byproduct
of a car accident years ago in which I suffered a jaw and orbital
fracture that caused bone loss in my upper jaw. In the month of
February, I counted at least 100 injections of Novocain and still
dealt with a very heavy practice including jury selection
concerning a murder in the second-degree indictment (Emphasis
Added).
While I am empathetic toPlaintiffs'
counsel's condition, the fact remains that he
failed to explain why the procedures he underwent in February prevented him from abiding by
the stipulation he entered into wherein it was agreed that the complaint would be filed and served
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by January 24, 2019, or why he failed to even contact me to request additional time to do so,
either: (i) before the January24th
deadline; or (ii) when Defendant filed the instant motion on
February14th
It is particularly odd thatPlaintiffs'
counsel did not attempt to contact me until
March5th
(Via hiS aSSistant) which was 39 days after the stipulation ended, especially when he
admits in his affirmation that he continued to deal with "a very heavy practice including jury
selection...."See, Affirmation of Robert J. Del Col, Esq., dated March 12, 2019 ("Del Col
Aff."), paragraph "8".
Furthermore, it is worth noting that the proposed complaint annexed toPlaintiffs'
opposition was verified on March 5, 2019, while the opposition was not served until the late
afternoon of March12th
(the day before the original return date), as this further demonstrates the
sharp tactics employed to attempt to defeat the instant motion.
Finally,Plaintiffs'
counsel's claim that Defendant will not suffer any prejudice if
Plaintiffs are permitted to serve a complaint at this juncture is absurd. In fact, if Plaintiffs are
allowed to proceed with this lawsuit, Defendant will be compelled to incur a tremendous amount
of additional time and resources defending a meritless claim (as discussed below).
Based upon the foregoing, it is respectfully submitted that since Plaintiffs have
failed to demonstrate a reasonable excuse for their failure to timely file and serve a complaint,
this lawsuit should be dismissed. See, Khamis v. Corporate Transp. Group, Ltd., 135 A.D.3d
825, 23 N.Y.S.3d 375 (2d Dep't 2016) ("The Supreme Court providently exercised its discretion
in granting the defendant's motion, as the plaintiff failed to proffer a reasonable excuse for her
delay in serving the complaint upon the defendant"); Lobel v. Hilltop Village Cooperative, No. 4,
138 A.D.3d 938, 28 N.Y.S.3d 633 (2d Dep't 2016) ("Here, the Supreme Court providently
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exercised its discretion in determining that the plaintiff failed to show a reasonable excuse for the
delay in serving the complaint"); McIntosh v. Genesee Valley Laser Centre, 121 A.D.3d 1560,
993 N.Y.S.2d 844 (4th Dep't 2014) ("We conclude that plaintiff failed to provide any reasonable
excuse for the delay...").
POINT II
PLAINTIFFS' PROPOSED CAUSES OF ACTION ARE BASELESS AND WITHOUTMERIT
Plaintiffs'counsel argues that this matter is "an important
case"that involves "a
new and novel question that may have statewideimplications"
(see, Del Col Aff., paragraph
"6"), clearly suggesting that Defendant should have acted in violation of the current Appellate
Division Rule 7.2, governing the manner in which AFC's are directed to practice in the State of
New York (annexed). Yet, counsel fails to attempt to explain why he did not file and serve the
complaint by the agreed upon January 24, 2019 deadline, or even attempt to contact our office to
request another extension of time to do so until March 5, 2019 (two days prior to the original
return date of the instant motion, and 39 days after the stipulation ended). If, however, this Court
determines that Plaintiffs somehow demonstrated a reasonable excuse, this lawsuit should still be
dismissed since their proposed claims are contradicted by the relevant documentary evidence and
are meritless.
The only "new and novel question which may have statewideimplications"
is
whether Plaintiffs can convince the Court that Ms. Porter who was an adversarial party, could
unilaterally fire a judicially appointed attorney for the child, as she attempted to do, as a strategy
to prevent the attorney from being able to respond to the motion to dismiss. In addition, another
Notably, Plaintiffs cite the case of Weiss v. Kahan, 209 A.D.2d 611, 619 N.Y.S. 2d 112 (2d Dep't 1994), where thecourt determined that the lawsuit should be dismissed on the grounds that plaintiffs failed to demonstrate a
reasonable excuse for their delay in serving the complaint.
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"new and novelquestion"
presented is whether the Court will condone the use of coercive threats
and other claims of ethical violations against a court-appointed attorney for the child, as a way
for family lawlitigants'
attorneys to practice in the State of New York.
Initially, Defendant notes that whilePlaintiffs'
summons with notice states that
Plaintiffs'action includes claims for the intentional infliction of emotional distress and the
negligent infliction of emotional distress (see, Bizzaro Aff., Exhibit 1), these claims are not
included in the proposed complaint. For this reason, Defendant does not address these claims in
response toPlaintiffs'
opposition.
A. Plaintiffs' Claims Are Contradicted By The Relevant Documéñtary Evidence
All of the allegations contained in the proposed complaint are flatly contradicted
by the relevant documentation.
In the underlying Family Court matters involving Philip J. Porter, III (deceased)
("PJ"), PJ's father (deceased), his paternal grandmother, Camille Porter, and his mother, Ms.
Porter, (the "Family Court Case"), Ms. Porter filed an order to show cause on August 20, 2018
(almost 5 months after PJ's death on March 25, 2018), wherein she sought, in part, the removal
of Defendant as Attorney for the Child ("AFC"), and in doing so, asserted many of the same
unfounded allegations set forth in her proposed complaint.
Clearly, when Ms. Porter filed this order to show cause, the Family Court no
longer had jurisdiction over this case since PJ had reached the age of 18 on March 6, 2018.
Subsequently, Ms. Porter and her attorney spent almost one year making frivolous
allegations that Defendant was liable for legal malpractice and wrongful death, and committed
various ethical violations. At the same time, Ms. Porter and her attorney argued that Defendant
was not permitted to respond to these absurd allegations, and could not opine as to whether
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Family Court had jurisdiction over same. As set forth above, Ms. Porter went so far as to seek
removal of the AFC and to be granted the authority to hire a replacement AFC. This was her
attempt to try and prevent the Defendant from being allowed to submit an affirmation with
regard to the pending motion to dismiss on jurisdictional grounds and to refute the allegations of
malpractice, wrongful death and ethical violations.
Defendant submitted an Affirmation in Response to Ms. Porter's order to show
cause, wherein she addressed the baseless allegations asserted against her and properly argued
that the Family Court no longer had jurisdiction after PJ's death. See, Exhibit 3.
On November 30, 2018, the Honorable Bernard Cheng, J.F.C. issued a Decision
and Order deferring Ms. Porter's request to remove Defendant as AFC until after the Court
rendered a decision on a motion filed by Camille Porter to dismiss the neglect proceeding for
lack of jurisdiction commenced against her by Ms. Porter. See, Exhibit 4. In doing so, Judge
Cheng found in relevant part as follows:
The Court rejects Barbara Porter's assertion that because it appears
that no formal order of appointment was ever issued, "it is possible
that Ms. Burton has been inappropriately appearing in this matter
since January 13,2017."
Review of the court file shows that
Jeanne Burton was appointed as P.J.'s attorney on February 10,
2017 by the Court Attorney Referee presiding over V-00363-17 at
that time. The digital recording of the case proceedings on
February 10, 2017 reveals that during the proceeding, the Court
Attorney/Referee repeatedly voiced her intention to assign an
attorney to represent P.J. and then verbally notified the attorneys
and parties on the record that she was appointing Jeanne Burton to
represent P.J. Further, this Court issued a written order appointingJeanne Burton as P.J.'s attorney on the custody petitions V-00636-
17 and V-00637-17 on April 21, 2017. This written order also
specified that it was
Ordered, that during the pendency of this matter, Jeanne R.
Burton, Esq., is hereby appointed as Attorney for the Child
as to new petitions that are filed within this Court that relate
to the child(ren) listed herein; and it is further
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Ordered that Jeanne R., Burton, Esq. shall be served with all
pleadings, notices, requests for adjournment and other
documents filed with the Court by another party to the
proceeding; and it is further Ordered that the appointment of
Jeanne R. Burton, Esq. shall continue through any appeal of
an order or judgment of the Court unless relieved by the
Appellate Division.
As such, it is clear to this Court that effective February 10, 2017,Jeanne R. Burton, Esq., was the properly appointed attorney for
P.J. Porter and this appointment was reiterated by this Court's
written order of April 21, 2017.
Id, p. 6.
Clearly, Judge Cheng's decision anticipated a future ruling on the issue of
jurisdiction post PJ's18*
birthday, as was set forth in the opposition papers. There would be no
need to rule on any removal, since everyone was aware that the case was over, except for Ms.
Porter and her attorney.
Additionally, on November 7, 2018, Defendant met with Harriet R. Weinberger,
Esq., who is the Director of the Supreme Court Appellate Division, Second Judicial Department,
the Office Of Attorneys For Children ("Office Of AFC"). See, Defendant's Affidavit, sworn to
on March 19, 2019, paragraph"2."
At that time, she was asked to respond to a complaint filed
against her by Michael Porcelain (Ms. Porter's fiancé) concerning the Family Court Case. Id,
paragraph"3."
In response, Defendant sent to Ms. Weinberger "a very largebox"
containing the
litigation motions with the exhibits to the Panel in Brooklyn. Id
On March 7, 2019, Ms. Weinberger provided Defendant with a copy of a letter
dated March 7, 2019 sent to Mr. Porcelain. The letter to Mr. Porcelain stated as follows:
Please be advised that this office has concluded its inquiry into
your complaint against Jeanne Burton, Esq.
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Our investigation reveals that Ms. Burton's representation has
been is in [sic] accordance with statutory standards and present
case law. Accordingly, the matter has now been closed. (Emphasis
Added.)
See, Exhibit 5.
As explained in Defendant's affidavit, this clearly was the complaint of Ms.
Porter by her fiancé concerning the Defendant's representation of PJ in the Family Court Case.
This determination made by the Office Of AFC demonstrates that all of the allegations asserted
against Defendant in the proposed complaint are entirely without merit.
The next day, March 8, 2019, Judge Cheng issued a Decision and Order in the
Family Court Case granting Camille Porter's motion to dismiss the neglect proceeding
commenced against her by Ms. Porter, dismissing Ms. Porter's contempt application against
Camille Porter, and denying Ms. Porter's application to remove Defendant as AFC as moot, due
to the dismissal of the neglect petition and contempt petition. Clearly, Judge Cheng found that
jurisdiction ceased on March 6, 2018, and Defendant's representation ceased, except for motion
practice seeking to create jurisdiction with no valid theory of law to support the absurd claims
being asserted by Ms. Porter.
Thereafter, on March 11, 2019, Judge Cheng issued a Corrected Decision and
Order. See, Exhibit 6.
In his decision Judge Cheng noted the following:
Despite the Family Court's jurisdiction to adjudicate the neglect
petitions filed against the Mother and Grandmother after PJ turned
eighteen, the Court, the attorneys and the parties fully expected all
the petitions and applications involving PJ to be withdrawn when
PJ turned eighteen. This expectation was based in the definition of
a neglected child as being "a child less than eighteen years ofage"
(F.C.A. §1012(f)), as well as the usual and regular practice of
ending article 10 case orders when a subject child reaches his or
her eighteenth birthday...
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In this matter, in recognition that the neglect proceedings would
terminate when PJ turned eighteen, the attorneys and parties
focused upon providing voluntary therapeutic services to PJ prior
to this birthday, with the hope that PJ would benefit from these
services and that family members would repair their relationships.
It is significant to note that PJ was not placed by the Court to live
with his Grandmother in these neglect cases. PJ elected on his
own to live with his Grandmother when he was sixteen, manymonths before the first neglect petition was filed. As such, there
was no placement to be extended when PJ turned eighteen. The
Court also notes that the Department of Social Services Child
Protective Services [DSS/CPS] conducted an investigation
pursuant to F.C.A. §1034 in February and March of 2017 but did
not file neglect cases against either of PJ's parents or his
Grandmother, and DSS is not a party to the cases before the Court.
The neglect cases filed on PJ's behalf arose out of the previouslyfiled custody and family offense petitions.
In sum, the parties did not envision the Court continuing the
neglect cases after PJ's eighteenth birthday. Discontinuing the
neglect cases after PJ's eighteenth birthday was anticipated. The
Mother's position changed, however, when PJ passed away on
March 25, 2018.
ld., pp. 5-6.
Notably, Judge Cheng referenced Ms. Porter's actions in attempting to assert
certain argument as "a pretext", and the voluminous nature of her counsel's affirmation. Id., p.
13, fn 8. Particularly, the Court stated:
It is apparent that the Mother's new argument that the Court must
protect these grandchildren and un-named Chaminade, East
Northport, and Northport students is just a pretext to justify a fact-
finding hearing.
ld., p. 13.
The foregoing documentation demonstrates the falsity of the allegations contained
in the proposed complaint, and establishes that Plaintiffs do not have a potential meritorious
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cause of action. In addition to these documents, however, and as discussed below,Plaintiffs'
allegations fail to state a valid claim upon which relief can be granted.
B. Plaintiffs Fail To State A Valid Claim For Legal Malpractice
Plaintiffs'claim for legal malpractice cannot be made on behalf of Ms. Porter,
individually. It can only be asserted on PJ's behalf.
In order to state a cause of action to recover damages for legal malpractice, a
plaintiff must allege: (1) that the attorney "failed to exercise the ordinary reasonable skill and
knowledge commonly possessed by a member of the legalprofession,"
and (2) that the attorney's
breach of the duty proximately caused the plaintiff actual and ascertainable damages. See,
Dempster v. Liotti, 86 A.D.3d 169, 924 N.Y.S.2d 484 (2d Dep't 2011); see also, Leder v.
Spiegel, 9 N.Y.3d 836, 872 N.E.2d 1194, 840 N.Y.S.2d 888 (2007).
Initially,Plaintiffs'
claim fails since they have not adequately alleged any
negligence on the part of Defendant, which proximately caused them any actual or ascertainable
damages. Specifically, Plaintiffs fail to identify any of Defendant's acts or omissions which
constitute a departure from the reasonable standard of care. Instead, Plaintiffs rehash the same
unfounded and baseless arguments, which were rejected in the Family Court Case and/or the
Office Of AFC.
The only relevant time period would be from late February 2017 until PJ reached
eighteen years of age March 6, 2018.
Plaintiffs also fail to allege any damages, which were caused by Defendant's
purported negligence.
For these reasons,Plaintiffs'
cause of action for legal malpractice clearly fails.
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Moreover, New York courts impose a strict privity requirement to claims for legal
malpractice, where "absent fraud, collusion, malicious acts or other specialcircumstances"
an
attorney is not liable to a third party for negligence in performing services on behalf of his client.
See, Estate of Schneider v. Finmann, 15 N.Y.3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119 (2010)
("In New York, a third party, without privity, cannot maintain a claim against an attorney in
professional negligence, 'absent fraud, collusion, malicious acts or other special
circumstances'"); Federal Ins. Co. v. North American Specialty Ins. Co., 47 A.D.3d 52, 847
N.Y.S.2d 7 (1st Dep't 2007), citing Lavanant v. General Acc. Ins. Co. of America, 164 A.D.2d
73, 561 N.Y.S.2d 164 (1st Dep't 1990).
Defendant represented the child, and not Ms. Porter. Therefore, Ms. Porter
clearly lacks the necessary privity to proceed with a claim for legal malpractice on her behalf.
See, Kerley v. Kerley, 131 A.D.3d 1124, 17 N.Y.S.3d 150 (2d Dep't 2015) (Husband in divorce
proceeding lacked standing to seek disqualification of attorney for children and disallowance of
fee on the ground of legal malpractice); Drummond v. Drummond, 291 A.D.2d 368, 737
N.Y.S.2d 628 (2d Dep't 2002) ("The plaintiff did not have an attorney-client relationship with
the Law Guardian...and, therefore, did not have standing to assert a direct claim of malpractice
against her"); Bluntt v. O'Connor, 291 A.D.2d 106, 737 N.Y.S.2d 471 (4th Dep't 2002) ("Nor
does plaintiff have standing to bring the action individually because she is a third party who was
not in privity with the Law Guardian").
Additionally,Plaintiffs'
allegations on behalf of both the Estate and Ms. Porter
also fail since Defendant enjoys quasi-judicial immunity from claims pertaining to conduct
related to the performance of her duties as AFC in the Family Court Case. See, In re TM, 19
Misc.3d 1113(A), 859 N.Y.S.2d 907 (Fam. Ct. Kings Co, 2008); Blunt supra; Bradt v. White,
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190 Misc.2d 526 (Sup Ct. Greene County 2002); Marquez v. Presbyterian Hosp., 159 Misc.2d
617 (Sup Ct. Bronx County 1994); Saucedo v. Pierangelo, 19 Misc.3d 1113(A), 859 N.Y.S.2d
907 (Sup. Ct. New York Co, 2008).
In In re TM, the mother in a child protective proceeding moved to have the Law
Guardian relieved and new counsel assigned to represent the child's interests. The Court denied
the mother's request, and in doing so, it relied upon the rationale and public policy
considerations set forth in several other cases in this State (cited above):
In Bluntt v. O'Connor (291 A.D.2d 106), the Appellate Division,Fourth Department held that the mother lacked standing to bring a
legal malpractice claim on behalf of the child against the court-
appointed Law Guardian since she had her own adversarial
interests in the action and had a motive to dispute the Law
Guardian's opinion. In addition, the Court held that the mother
lacked standing to bring the action individually since she was a
third party who was not in privity with the Law Guardian. Absent
fraud, collusion, malicious acts or other special circumstances, an
attorney is not liable to third parties, not in privity, for harm caused
by alleged professional negligence (citing Maurer v. Maurer, 243
A.D.2d 672 [2d Dept 1997], quoting Spivey v. Pulley, 138 A.D.2d
563 [2d Dept 1988] ). The Court stated that the mother had not
demonstrated a "relationship so close as to approach that ofprivity"
as to allow her to maintain the action on her own behalf
(Bluntt v. O'Connor, 291 A.D.2d 106, 114-115). The Appellate
Division looked to decisions in other states and found that most
courts that have considered suits by disgruntled parents against
attorneys appointed by courts to protect children have granted, on
public policy grounds, absolute quasi-judicial immunity to the
attorneys for actions taken within the scope of their appointments
(291 A.D.2d at 116). The Court explained that quasi-judicial
immunity is necessary because exposure of Law Guardians to
liability under such circumstances would affect the willingness ofqualified attorneys to accept such appointments. "That
disincentive is against public policy and should beeliminated"
(Id.
at 119). The Court stated that "from a public policy perspective, it
is better to have a diligent, unbiased, and objective advocate to
assist the court in determining and protecting the best interests ofthe child than it is to assure that the minor child may later recover
damages intort"
(Id. at 118) (Emphasis Added).
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Similarly, in Bradt v. White (190 Misc.2d 526), the Supreme Court
held that a Law Guardian enjoys quasi-judicial immunity from
civil liability in actions brought by a parent for conduct directly
relating to the performance of the Law Guardian's duty to further
the best interests of the child. The Court explained that a Law
Guardian must be able to function fee fom the threat ofharassment from retaliatory litigation brought by dissatisfied
parents (190 Misc.2d at 534). The threat of civil liability for
conduct directly relating to the performance of the Law Guardian's
duties should not be available to inhibit the Law Guardian from
necessary investigation and advocacy on behalf of the child (190
Misc.2d at 531) (Emphasis Added).
Likewise, in Marquez v. Presbyterian Hosp. (159 Misc.2d 617), the
Supreme Court held that the Law Guardian appointed for a five-
year-old child in a child protective proceeding, cannot be held
liable in a legal malpractice action by the parents individually or
on behalf of the subject child based on the Law Guardian's alleged
inadequate representation in failing to call a particular witness at
the fact-finding hearing. The court emphasized that since the Law
Guardian had served in a guardian ad litem role, requiring an
independent position based on an evaluation of the best interests of
the child, liability could not attach absent a showing that the LawGuardian had failed to act in good faith in exercising discretion or
failed to exercise any discretion at all. In the instant case, the
child's court-appointed Law Guardian enjoys quasi-judicial
immunity from claims brought by respondent mother on behalf ofthe child since she has her own adversarial interests in the
proceeding and has a motive to dispute the Law Guardian's
opinion (Emphasis Added).
Id. at 2.
Based upon this well-founded rationale, the Court in In re TM held in relevant
part as follows:
The Law Guardian cannot be required to satisfy expectations or
standards of performance laid down for her by counsel for
respondent mother. His motives are dictated by his obligation to
represent his client, with his own interests, which do not
necessarily coincide with the interests of the child. A rule that
would make a Law Guardian answerable to parent's attorney for
the manner of her representation, would affect the willingness ofqualified attorneys to accept appointments, inhibit the Law
Guardian fom necessary investigation and advocacy on behalf of
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the child and punish her for taking a position adverse to the
parent. That disincentive is against public policy and should be
eliminated (Emphasis Added).
Id. at 3.
The role of a Law Guardian, assigned to represent a child too
young to make considered judgments, is to be an advocate for the
best interests of the child, not the parents. Accordingly, the fact
that the Law Guardian disagrees with the position advanced bycounsel for respondent mother and supports a finding of neglect,
does not suggest that removal is warranted...(Emphasis Added).
Id
Furthermore, in Saucedo, the Court applied the same rationale to an action for
"negligence/malpractice"against the defendant, Roger Pierangelo, a Nassau County Parent
Coordinator, during the pendency of a custody action in Nassau County Supreme Court. The
defendant filed a motion seeking, in part, an order pursuant to CPLR § 3211(a)(7), dismissing the
complaint on the grounds that it fails to state a cause of action and on the grounds that the
Eleventh Amendment bars plaintiff from seeking damages against him, since he was acting in his
quasi-official capacity as a Court-approved Nassau County Parent Coordinator, and as such
should be afforded judicial immunity from the instant action. The Court granted the defendant's
motion and held in pertinent part as follows:
Public policy supports the protection afforded a court-appointed
expert based on immunity from suit. In certain matters, a court
may rely on the opinions of experts to fully and fairly determine
the issues raised in litigation. Judicial immunity protects judges in
the...performance of their judicial functions so as to allow them to
exercise independent judgment without the threat of legal reprisal,
which is "critical to our judicialsystem."
Ashmore v. Lewis, 2012
N.Y. LEXIS 337 (Sup Ct. New York County 2012), citing,
Mosher-Simons v. County of Allegany, 99 NY2d 214, 219, 783
N.E.2d 509, 753 N.Y.S.2d 444 (2002), quoting Tarter v. State of
New York, 68 NY2d 511, 518, 503 N.E.2d 84, 510 N. Y.S.2d 528
(1986). "A logical extension of this premise is that 'other neutrallypositioned [individuals], regardless of title, who are delegated
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judicial or quasi-judicial functions should also not be shackled
with the fear of civil retribution for theiracts.'."
Id. citing, Mosher-
Simons, 99 NY2d at 220, quoting Tarter, supra.
Here, because Dr. Pierangelo was a court-approved Parent
Coordinator, serving a quasi-judicial function, and Judge Bennett
relied on his testimony and conclusions in rendering her decision,
he is entitled to immunity from suit regarding the work he
performed as a court-approved Parent Coordinator. As such, this
action must be dismissed as it is barred by the doctrine of judicial
immunity.
Id. at 5-6.
The same rationale and public policy considerations cited in the foregoing cases
warrant granting Defendant immunity from the baseless claims asserted against her, as they all
pertain to her alleged acts and/or omissions while acting as the AFC in the Family Court Case.
Specifically, as AFC, Defendant was appointed to represent the child pursuant to Rule 7.2 of the
Appellate Division, Second Department, State of New York (annexed). If this Court permitted
parents (individually and/or on behalf of the estates of deceased children) to assert claims against
AFCs related to actions taken within the scope of their duties, this would strongly dissuade
attorneys from accepting such appointments.
In the case at bar, the fact that this young man passed away after the age of
majority is not relevant to the causes of action in the proposed complaint, and does not give
Plaintiffs any additional or expanded rights.
Therefore,Plaintiffs'
unfounded and meritless claims against Defendant also fail
due to the immunity enjoyed by Defendant to the claims alleged in the proposed complaint.
Based upon the foregoing, not only isPlaintiffs'
claim for legal malpractice: (i)
contradicted by the relevant documentary evidence; and (ii) not adequately pled, but it also fails
due to the immunity afforded to Defendant.
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In addition, while the proposed complaint contains a myriad of allegations that
Defendant violated numerous professional and ethical rules of conduct (which Defendant
vehemently denies and which is contradicted by the finding of the Office Of AFC that she acted
in "accordance with statutory standards and present case law,") this is also insufficient to state a
valid cause of action for legal malpractice. See, Guiles v. Simser, 35 A.D.3d 1054 (3rd Dep't
2006) ("Defendant's sexual encounters with plaintiff clearly constituted...ethical violations...,
but '[t]he violation of a disciplinary rule does not, without more, generate a cause of action'"),
citing Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193 (1st Dep't 2003)
("The violation of a disciplinary rule does not, without more, generate a cause of action.");
McPhillips v. Bauman, 133 A.D.3d 998 (3rd Dep't 2015) ("Even if there was a conflict of
interest constituting an ethical violation as alleged by plaintiff, such a violation would not give
rise to a viable claim absent pecuniary damages..."); Kyle v. Heiberger & Associates, P.C., 25
Misc.3d 1218(A) (Sup. Ct. Bronx Co. 2015) ("Where, as here, plaintiffs do not sufficiently
allege the elements of the claim, dismissal is properly granted-even if there were allegations of
ethical violations, and negligence."). To reiterate, the Defendant denies any allegations of ethical
violations.
Furthermore, to the extent that the Estate is even permitted to assert claims against
Defendant (which for the reasons set forth above it has not and cannot), such claims would
necessarily have to be based upon Defendant's alleged acts taken prior to PJ reaching the age of
eighteen, since Defendant's attorney-client relationship with PJ ended at that time. Many of the
purported ethical violations referenced in the proposed complaint, however, appear to pertain to
actions allegedly taken after PJ reached the age of majority. This too is improper and further
warrants the rejection of the malpractice claim.
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Finally, Plaintiffs baselessly allege that Defendant improperly disclosed
privileged communications in her Affirmation in Response to Ms. Porter's order to show cause.
These communications, however, were properly disclosed in response to Ms. Porter's allegations
that Defendant committed legal malpractice and ethical violations, and is liable for wrongful
death. See, New York Rule of Professional Conduct 1.6(b)(5)(i) (which allows an attorney to
disclose "confidential information"... "to defend the lawyer or the lawyer's employees and
associates against an accusation of wrongful conduct..."). Also, these communications were
only disclosed to the Court, the parties to the Family Court Case, and their attorneys due to the
specious motion that the mother filed after jurisdiction ceased to exist.
In summation, Plaintiffs attempt to throw everything but the kitchen sink into this
cause of action for legal malpractice in the proposed complaint, all in a desperate attempt to
convince this Court that they possess a meritorious claim against Defendant. A perusal of the
allegations, however, reveals thatPlaintiffs'
cause of action for legal malpractice fails since: (i)
Plaintiffs have failed to adequately allege any negligence on the part of Defendant; (ii) Plaintiffs
have failed to identify any actual and ascertainable damages sustained by PJ, which were
proximately caused by Defendant's purported negligence; (iii) Defendant is afforded a quasi-
immunity toPlaintiffs'
claims, regardless of the fact that PJ has now passed; and (iv) Ms. Porter
lacks privity with Defendant.
C. Plaintiffs Have Failed To State A Valid Cause OfAction For Breach Of Fiduciary Duty
First and foremost,Plaintiffs'
claim for breach of fiduciary duty cannot be made
on behalf of Ms. Porter, individually. It can only be asserted on PJ's behalf.
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The elements of a breach of fiduciary duty cause of action are: (i) the existence of
a fiduciary relationship; (ii) misconduct by the defendant; and (iii) damages directly caused by
defendant's misconduct. See, Stinner v. Epstein, 162 A.D.3d 819, 2018 WL 2945397 (2d Dep't
2018); Baldeo v. Majeed, 150 A.D.3d 942, 55 N.Y.S.3d 340 (2d Dep't 2017). These elements
must be pled with particularity. Stinner, citing CPLR 3016(b).
A fiduciary relationship arises "'between two persons when one of them is under
a duty to act for or to give advice for the benefit of another upon matters within the scope of the
relation.'"See, Pergament v. Roach, 41 A.D.3d 569, 838 N.Y.S.2d 591 (2d Dep't 2007), citing
EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 832 N.E.2d 26, 799 N.Y.S.2d 170 (2005),
quoting Restatement [Second] of Torts § 874.
"This definition expressly refers to an agency relationship and an advisory
relationship in thedisjunctive."
Id. at 593. "Hence, either is sufficient to establish the fiduciary
relationship."Id., citing Matter of Granirer, 131 A.D.2d 477, 516 N.Y.S.2d 244 (1987).
While there was a fiduciary relationship between PJ and Defendant as AFC, Ms.
Porter does not (and cannot) allege that she had a "fiduciaryrelationship"
with Defendant.
Therefore, Ms. Porter clearly lacks standing to pursue this claim on her behalf.
Moreover, there are no facts pled alleging any misconduct by Defendant or
damages proximately caused by the alleged conduct, which were sustained by PJ. Specifically,
Plaintiffs cannot simply allege damages to Ms. Porter. Rather, they are required to allege with
particularity specific damages suffered by PJ. The failure to do so also warrants the rejection of
this proposed claim.
Furthermore, they failed to plead any facts which could be considered to
constitute a breach of a fiduciary duty to anyone.
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Finally, for the reasons set forth in Point B above, the claim for breach of
fiduciary duty also fails due to the immunity afforded to Defendant as AFC, regardless of PJ's
subsequent passing.
As a result of the foregoing, it is respectfully submitted that Plaintiffs have also
failed to state a valid claim for breach of fiduciary duty.
D. Ms. Porter Has Failed To State A Valid
Cause Of Action For Malicious Prosecution
This is a claim that can only be asserted by Ms. Porter, individually.
To sustain a cause of action for malicious prosecution based upon prior civil
litigation, a plaintiff must show that: (i) the defendant initiated an action or proceeding that
terminated in the plaintiff's favor; (ii) there was no probable cause for the action or proceeding;
(iii) the defendant acted with malice; and (iv) the plaintiff suffered a special injury. See, Black v.
Green HarbourHomeowners'
Assoc., Inc., 37 A.D.3d 1013, 829 N.Y.S.2d 764 (3rd Dep't 2007);
Perryman v. Village of Saranac Lake, 41 A.D.3d 1080, 839 N.Y.S.2d 290 (3rd Dep't 2007) ("To
succeed on a claim for malicious prosecution, a plaintiff must show that the defendant initiated a
proceeding that terminated in favor of the plaintiff, an entire lack of probable cause in the prior
proceeding, malice, and special injury").
Initially, on March 13, 2017, the Honorable Theresa Whelan granted Defendant
permission to file the neglect proceeding against Ms. Porter, giving both counsel an opportunity
to present their arguments. See, Exhibit 7. Normally, in civil litigation, a party and his/her
attorney do not require pre-approval to file a lawsuit. The fact that Defendant was expressly
granted permission to file the neglect proceeding after her attorney opposed said application on
the record, further demonstrates that Ms. Porter's claim that it was initiated without probable
cause is baseless, and not supported by any of the documents or findings in the Family Court
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Case. After argument for and against the granting of permission to file, Judge Whelan granted
permission, which was tantamount to a finding of probable cause.
Second, there was no action or proceeding that was terminated inPlaintiffs'
favor.
The neglect proceeding referred to in the proposed complaint, which Plaintiffs claim was decided
in Ms. Porter's favor on August 20, 2018, was actually withdrawn on the record on May 9, 2018,
due to the lack of the Family Court's jurisdiction after the child turned 18, and following the
death of the child, as noted in Judge Cheng's most recent decision. See, Ex. 6, p. 3. As such,
this claim is demonstrably false. Thereafter, Ms. Porter spent almost a year pursuing baseless
legal theories, when the Court and the parties involved all realized that the Family Court no
longer had the requisite jurisdiction.
Third,Plaintiffs'
unfounded claim that Defendant commenced a neglect
proceeding against Ms. Porter out of a "personalvendetta"
is not only untrue, but is not even
sufficient to state a cause of action for malicious prosecution. See, Bradshaw v. Silversmith, 122
Misc.2d 544, 472 N.Y.S.2d 237 (Sup. Ct. New York Co. 1983) ("Want of probable cause must
also be proved, and these may not be inferred from defendant's malice alone"), citing Jestic v.
Long Island Sav. Bank, 81 A.D.2d 255, 440 N.Y.S.2d 278 (2d Dep't 1981); Burt v. Smith, 181
N.Y. 1, 73 N.E. 495 (1905) ("While malice is the root of the action, malice alone, even when
extreme, is not enough, for want of probable cause must also be shown.").
Fourth, Plaintiffs have failed to adequately allege that they suffered a "special
injury", or any injury, as a result of Defendant's purported actions.
Fifth, it is worth noting that Defendant filed neglect petitions against both parents
after full consultation with her client, after Ms. Porter filed a family offense petition on behalf of
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the child against the father, and after Child Protective Services conducted an investigation and
report. See, Reply Aff., Ex. 3.
Finally, for the reasons set forth in Point B above, the claim of malicious
prosecution additionally fails due to the quasi-immunity afforded to Defendant as AFC,
regardless of PJ's subsequent passing.
Based upon the foregoing, it is respectfully submitted thatPlaintiffs'
cause of
action for malicious prosecution also fails.
E. Ms. Porter Has Failed To State
A Valid Cause Of Action For
Abuse Of Process
This is a claim that can only be asserted by Ms. Porter, individually.
In order to state a cause of action for abuse of process, a plaintiff must establish
that the defendant: (1) used regularly-issued process, either civil or criminal; (2) intended to do
harm without excuse or justification; and (3) used the process in a perverted manner to obtain a
collateral objective. See, Hudson Valley Marine, Inc. v. Town of Cortlandt, 79 A.D.3d 700, 912
N.Y.S.2d 623 (2d Dep't 2010); Bright View Trading Co., Inc. v. Park, 2004 WL 2071976
(S.D.N.Y. 2004).
The mere commencement of a legal action does not constitute abuse of process.
See, Greco v. Christofferesen, 70 A.D.3d 769, 896 N.Y.S.2d 363 (2d Dep't 2010) ("Moreover,
the mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging
abuse of process"); Matthews v. New York City Dept. of Social Services, Child Welfare Admin.,
217 A.D.2d 413, 629 N.Y.S.2d 241 (1st Dep't 1995); Tenore v. Kantrowitz, Goldhamer &
Graifman, 76 A.D.3d 556, 907 N.Y.S.2d 255 (2d Dep't 2010).
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Additionally, a malicious motive alone does not give rise to a cause of action to
recover damages for abuse of process. See, Matthews at 415; Tenore at 557.
The fact that Judge Whelan expressly granted Defendant permission to file the
neglect proceeding against Ms. Porter, after oral opposition, demonstrates that it was not issued
with the intent "to do harm without excuse orjustification."
See, Ex. 7. Even if Defendant did
commence the proceeding with a malicious motive (which clearly there was no such motive),
however, this is still not sufficient to state a cause of action for abuse of process.
Therefore,Plaintiffs'
baseless allegations that Defendant commenced the neglect
proceeding against Ms. Porter solely to "inflictharm"
upon her and to "elevate her status as a fair
AFC"is woefully insufficient to state a valid claim for abuse of process, and should be dismissed
accordingly. In fact, it is nonsensical and further demonstrates the frivolous nature of their
claims.
Furthermore, the fact that Defendant is afforded quasi-immunity from this claim
(as set forth in Point B above), also warrants its dismissal.
Finally, the proposed complaint cites to alleged conversations that Plaintiffs claim
Defendant had with Ms. Porter's attorney in the Family Court Case, some of which would
constitute confidential settlement negotiations that have now been improperly disclosed via
Plaintiffs'filing of same with this Court (most of those self-serving alleged comments to
Plaintiffs'attorney are vehemently denied by Defendant). See, CPLR 4547; Richmond County
Country Club v. Tax Com'n of City of New York, 53 A.D.3d 661, 862 N.Y.S.2d 560 (2d Dep't
2008) (Statement in letter from city's attorney to country club's attorney was an offer of
settlement, and thus was inadmissible in proceeding commenced by club to review property tax
classification); Stevens v. Atwal, 30 A.D.3d 993, 817 N.Y.S.2d 469 (4th Dep't 2006) (error from
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admission of evidence of plaintiffs settlements with former defendants was highly prejudicial,
and court's limiting instruction did not cure the error or alleviate that prejudice; evidence
permitted jury to infer that former defendants were responsible for plaintiffs injuries and that he
had been compensated therefor); Miller v. Sanchez, 6 Misc.3d 479, 789 N.Y.S.2d 850 (Sup. Ct.
Kings Co. 2004) (Insurer's offer to settle claim of driver whose vehicle collided with insured's
vehicle was not admissible evidence as to insured's liability nor as to the value of the claim).
Due to the circumstances of this case, it is worth noting that the courts in this
State promote and encourage free and open communications between attorneys who have an
adversarial relationship in a case. Under the ethical rules, however, attorneys risk having
unfounded, meritless claims being asserted against them, based upon oral communications with
other attorneys, who may have incorrect recollections and/or who may misrepresent
conversations to the courts and/or their clients.
CONCLUSION
The old saying of "quality overquantity"
certainly applies to the case at bar.
While Plaintiffs submit a 67 page proposed complaint, containing 202 paragraphs, they fail to
adequately assert a single valid allegation, which is not contradicted by the documentary
evidence, upon which Defendant can be found liable under the law in this State.
The "new andnovel"
theories asserted by Plaintiffs in the proposed complaint,
seek to compel Defendant to depart from all of her prior mandatory training and protocols,
violate Rule 7.2, and improperly act on a purely subjective basis. This would certainly violate
public policy, and is exactly why AFC's have quasi-immunity against claims such as those
asserted in the proposed complaint.
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Therefore, for the reasons set forth above and in the Reply Aff., together with
those asserted in Defendant's moving papers, it is respectfully submitted that Defendant's
motion be granted in its entirety.
Dated: Garden City, New York
March 19, 2019
Yours, etc.,
L'ABBATE, BALKAN, C LAVITA
& CONTINI, L.L.P.
By:
Matthew J. Bizzaro, Esq.
Attorneys for Defendant
1001 Franklin Avenue
Garden City, NY 11530
(516) 294-8844
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§ 7.2. Function of the Attorney for the Child, NY R CHIEF J § 7.2
McKinney's New York Rules of Court
State Rules of Court
Standards and Administrative Policies
Rules of the Chief Judge
Part 7. Law Guardians __
N.Y.Ct.Rules, § 7.2
§ 7.2. Function of the Attorney for the Child
Currentness
(a) As used in this part, "attorney for the child" means a law guardian appointed by the family court pursuant to section
249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court
might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to
constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest;
and becoming a witness in the litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorneyfor the child must zealously defend the child.
(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the
child's position.
(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of
and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circ-t2nces.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed
by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best
interests. The attorney should explain fully the options available to the child, and may recommend to the child a course
of action that in the attorney's view would best promote the child's interests.
(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and
considered judgment, or that following the child's wishes is likely to result in a substantial risk of immimt, serious harm
to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In
these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants
the attorney to do so, notwithstanding the attorney's position.
N. Y. Ct. Rules, § 7.2, NY R CHIEF J § 7.2
Current with amendments received through February 15, 2019.
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