The opinion
Goldstein v Scott Seidler Family Trust
2025 NY Slip Op 31422(U)
April 22, 2025
Supreme Court, New York County
Docket Number: Index No. 156268/2021
Judge: Judy H. Kim
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
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publication.
FILED: NEW YORK COUNTY CLERK 04/22/2025 04:36 PM INDEX NO. 156268/2021
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 04/22/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDY H. KIM PART 04
Justice
---------------------------------------------------------------------------------X INDEX NO. 156268/2021
MARK I. GOLDSTEIN, as Executor of the Estate of DORON
ZANANI, MOTION DATE 03/10/2023
Plaintiff, MOTION SEQ. NO. 003
-v-
SCOTT SEIDLER FAMILY TRUST, STEPHANIE SEIDLER DECISION + ORDER ON
FAMILY TRUST, and STEVEN SEIDLER, MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 83,
84, 85, 86, 87, 88, 89, 90, 91
were read on this motion for PARTIAL SUMMARY JUDGMENT .
Upon the foregoing documents, plaintiff’s motion for summary judgment on his account
stated claim and to dismiss defendants’ second, third, and fourth counterclaims is denied, without
prejudice.
On July 1, 2021, plaintiff Doron Zanani commenced a special proceeding, by notice of
petition and petition alleging that defendants retained him to represent them in three lawsuits filed
in New York State Supreme Court, Kings County, in 2014, 2018, and 2019 (the “Kings County
Actions”), but discharged him on June 8, 2021, without cause (NYSCEF Doc No. 1, complaint at
¶¶6, 19, 22, 39, 58). Plaintiff further alleged that he contemporaneously emailed invoices for his
services to defendants at various times between December 1, 2015, and June 3, 2021, which
defendants received without objection and failed to pay (id. at ¶¶99, 102, 104). The petition
asserted claims for breach of contract, unjust enrichment, and quantum meruit and sought a
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declaratory judgment directing that the first $521,455.03 of any recovery in the Kings County
Actions be paid to him (id. at ¶¶89-134).
Defendants interposed an Answer asserting various affirmative defenses and, as pertinent
here, counterclaims for legal malpractice and breach of fiduciary duty based upon allegations that
defendants informed plaintiff they wanted to settle the Kings County Actions for approximately
$2,000,000.00 but plaintiff refused to convey an offer of $1,850,000.00 to them (because he
“refused” to settle for less than $4,000,000.00) and, as a result, defendants eventually agreed to a
settlement offer of $1,425,000.00 (NYSCEF Doc No. 34, Amended Answer at ¶¶74-78).
In decision and order dated November 4, 2021, the Court (Hon. Frank P. Nervo) denied
the petition and dismissed the special proceeding without prejudice on the grounds that, inter alia,
plaintiff had an adequate remedy of law in a plenary breach of contract action (NYSCEF Doc No.
77, decision and order). Justice Nervo noted, in passing, that “[t]he petition and answer present
issues of fact as to whether petitioner committed malpractice or otherwise failed to render proper
services” (id.).
That order was subsequently reversed by the Appellate Division, First Department, which
converted the special proceeding to a plenary action, deemed the petition a complaint with respect
to plaintiff’s breach of contract and account stated claims, and remanded the matter for further
proceedings (NYSCEF Doc No. 82, remittitur). In that decision, the Appellate Division
decline[d] petitioner’s request to construe the petition and answer as summary
judgment papers and to summarily adjudicate his remaining claims at this stage.
When a special proceeding is converted into a plenary action in accordance with
CPLR 103(c), the petition is deemed a complaint, not a motion for summary
judgment (see Matter of David H. Berg & Assoc. v Weksler, 193 AD3d 612, 613
[1st Dept 202l]). The record may present material issues of fact as to whether
petitioner is entitled to recover under either remaining cause of action, or whether
he committed legal malpractice, and these issues are for the motion court to address
in the first instance …
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Motion No. 003
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(id. [emphasis added]).
Approximately three week after the Appellate Division issued this decision, and prior to
the commencement of discovery, plaintiff filed the instant motion for summary judgment.1 In this
motion, plaintiff argues that he has established his prima facie case for account stated and that
defendants’ counterclaims should be dismissed because defendants’ Answer does not allege that
defendants would have accepted a settlement offer if it had been conveyed to them, a necessary
element of a malpractice claim, citing Drasche v Edelman & Edelman, 201 AD3d 434, 435 (1st
Dept 2022). Plaintiff also argues that defendants’ assertion that he refused to convey settlement
offers between defendants and the other litigants in the Kings County Actions is refuted by emails
exchanged between Seidler and Zanani in 2020 and 2021 which, plaintiff asserts, establish that he
conveyed a settlement offer of $2,500,000.00 to opposing counsel and relayed a settlement offer
of $1,850,000.00 to defendants (see NYSCEF Doc No. 56, 58, 59).
In opposition, defendants argue that it is the law of the case that issues of fact preclude
summary resolution of plaintiff’s account stated claim and defendants’ malpractice counterclaims.
Defendant also submit an affirmation by defendant Steven Seidler reiterating the allegations in
defendants’ Answer and attesting that “[t]he conversations regarding the case and settlement of
the actions were conducted both by telephone and email” and that the emails submitted by plaintiff
“do not portray an accurate or truthful reflection of what was discussed and agreed between the
parties” (NYSCEF Doc No. 88, Seidler aff. at ¶¶4-6).
1
This action was stayed on December 21, 2023, due to the death of plaintiff (NYSCEF Doc No. 92, order) which stay
was lifted on March 25, 2024, after the substitution of Mark I. Goldstein as executor of plaintiff’s estate (NYSCEF
Doc No. 97, order).
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DISCUSSION
“The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact. Failure to make such prima facie showing requires a denial
of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been
made, however, the burden shifts to the party opposing the motion for summary judgment to
produce evidentiary proof in admissible form sufficient to establish the existence of material issues
of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]
[internal citations omitted]).
As a threshold matter, the law of the case does not bar this motion. Contrary to defendants’
claim, the Appellate Division did not conclude that issues of fact existed but left that determination
for the trial court to make “in the first instance.” In any event, plaintiff has submitted additional
materials on this motion that were not previously before the trial court or Appellate Division (see
Massey v Byrne, 164 AD3d 416, 416-17 [1st Dept 2018] [the law of the case “operates to foreclose
re-examination of the question absent a showing of subsequent evidence…”]). Accordingly, the
Court turns to the merits of the motion.
The Court first addresses the branch of plaintiff’s motion to dismiss defendants’ second,
third, and fourth counterclaims. While the motion is denominated as seeking summary judgment
pursuant to CPLR 3212, plaintiff offers arguments pursuant to both CPLR 3211 and 3212, neither
of which succeed. Plaintiff’s argument that defendants’ counterclaims are insufficiently pled relies
on Drasche v Edelman & Edelman but in that case, the Appellate Division concluded that the
complaint was properly dismissed because plaintiff failed to allege that “but for defendants’
alleged negligence, she would have accepted the settlement offer and would not have sustained
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any damages” (Drasche v Edelman & Edelman, 201 AD3d 434, 435 [1st Dept 2022] [internal
citations omitted]) whereas defendants here have alleged that they were prevented from accepting
an offer of $1,850,000.00 and eventually settled for $425,000.00 less than that amount.
Neither has plaintiff establishes his entitlement to summary judgment dismissing these
counterclaims. As an initial matter, this motion is premature, as it was filed “prior to the
preliminary conference or the opportunity of the parties to conduct discovery” (Downey v Local
46 2nd Holding Co., 34 AD3d 318 [1st Dept 2006] citing Bradley v Ibex Constr. LLC, 22 AD3d
380 [1st Dept 2005]; see also Sanchez v City of New York, 43 Misc 3d 1211(A) [Sup Ct, Bronx
County 2014]).
Even setting this aside, however, plaintiff has “failed to make a prima facie showing that
his representation of defendant met the applicable standard of professional care and/or did not
proximately cause any damages” (Glassman v Weinberg, 154 AD3d 407, 409 [1st Dept 2017]
[internal citations omitted]). The hundreds of pages of selected emails between Seidler and
plaintiff submitted are insufficient to do so, particularly in the face of Seidler’s sworn
representation that he had telephone conversations with plaintiff about settling the Kings County
Actions by telephone which are not accurately reflected in these email. In addition, plaintiff’s
February 4, 2020 email to Seidler appears to discuss the possibility that a future recovery in the
Kings County Actions may be limited to $1,850,000.00 but does not, on its face, indicate that this
amount was a settlement offer from opposing counsel. Accordingly, this email is insufficient to
rebut defendants’ allegation that plaintiff failed to relay a settlement offer in this amount to them.
Given the disputed issue of fact as to whether plaintiff conveyed all settlement offers to defendants
and whether he was discharged for cause, plaintiff’s motion for summary judgment dismissing
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defendants’ counterclaims is denied (see Brill & Meisel v Brown, 113 AD3d 435, 436 [1st Dept
2014]).
The foregoing mandates the denial of the branch of plaintiff’s motion seeking summary
judgment on his account stated claim. It is well-settled that “[i]f a defendant client’s legal
malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will
not be entitled to summary judgment on its account stated claim” (Emery Celli Brinckerhoff &
Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013]) and since the “alleged conduct which
forms the basis for the malpractice [counterclaims] occurred during the billing period at issue,” the
account stated claim and malpractice counterclaims here are sufficiently “intertwined” such that
summary judgment is inappropriate2 (Reem Contr. v Altschul & Altschul, 2022 NY Slip Op
34430[U], 15 [Sup Ct, NY County 2022] [internal citations omitted]).
Accordingly, it is
ORDERED that plaintiff’s motion for summary judgment is denied without prejudice to
renewal at the completion of discovery; and it is further
ORDERED that defendants shall, within ten days of the date of this decision and order,
serve a copy of this decision and order, with notice of entry, upon plaintiff as well as upon the
Clerk of the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk’s Office (60
Centre St., Room 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-
Filing” page on the court’s website); and it is further
2
The Court declines defendants’ request to sanction plaintiff pursuant to 22 NYCRR 130-1.1.
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NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 04/22/2025
ORDERED that the parties are to appear for a preliminary conference in Part 4 (80 Centre
Street, room 308) on June 12, 2025, at 9:30 a.m.
This constitutes the decision and order of the Court.
4/22/2025
~-~~
DATE HON. JUDY H. KIM, J.S.C.
□ ~ ~
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 003
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