| Carde v Rodriguez |
| 2020 NY Slip Op 07451 |
| Decided on December 10, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: December 10, 2020
Before: Manzanet-Daniels, J.P., Mazzarelli, Gesmer, Moulton, Shulman, JJ.
Index No. 25261/19E Appeal No. 12610 Case No. 2020-03032
v
Jose Antonio Rodriguez, Defendant-Appellant.
Donovan & Valicenti, Scarsdale (Lawrence Donovan of counsel), for appellant.
Joan Iacono, Bronxville, for respondent.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered January 17, 2020, which granted defendant's motion to dismiss the complaint and denied his application for sanctions, unanimously modified, on the law, to the extent of clarifying that the dismissal of the complaint is with prejudice, and otherwise affirmed, without costs.
The complaint should have been dismissed with prejudice for res judicata purposes. The court addressed plaintiffs' legal malpractice claim and concluded, on the merits, that it did not state a cause of action. There is nothing in the record to indicate that allowing plaintiffs to replead would cure the fundamental deficiencies in their claim (see generally Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13—14 [2008]).
The court did not abuse its discretion in denying defendant's application for sanctions. Although ultimately rejected by the motion court, the legal malpractice claim advanced by plaintiffs was of colorable merit, and nothing suggests that it was made in bad faith or with an intent to harass or injure defendant (see Bloom v Westereich, 173 AD3d 427, 428 [1st Dept 2019]; cf. Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 10, 2020