        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

432
CA 15-00412
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


CELLINO & BARNES, P.C., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LAW OFFICE OF CHRISTOPHER J. CASSAR, P.C., AND
CHRISTOPHER J. CASSAR, DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


THE LAW OFFICES OF CHRISTOPHER J. CASSAR, P.C., HUNTINGTON
(CHRISTOPHER J. CASSAR OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered December 9, 2014. The order denied the motion
of defendants to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting those parts of the motion seeking dismissal of
the second and third causes of action and as modified the order is
affirmed without costs.

     Memorandum: This dispute between law firms over attorney’s fees
arises from legal services provided to a client in a personal injury
action against an allegedly negligent motorist. Over two years after
she had retained plaintiff as counsel and nearly four months after
plaintiff had commenced the personal injury action on her behalf in
Supreme Court, Suffolk County, the client discharged plaintiff and
retained defendants. Following substitution of counsel, plaintiff
sent a letter to defendants asserting a charging lien pursuant to
Judiciary Law § 475 to secure its interest in attorney’s fees. With
defendants as counsel, the client subsequently commenced a legal
malpractice action against plaintiff in Suffolk County alleging that
plaintiff negligently failed to file a workers’ compensation claim for
the client. Thereafter, defendants secured a settlement in the
client’s personal injury action. Defendants then sought an order
within that action directing that a portion of the settlement funds be
held in escrow while the validity of the charging lien was resolved
and that the remainder of the settlement funds be released to the
client. Two days later, plaintiff commenced the instant action
against defendants in Supreme Court, Erie County, i.e., the county in
which plaintiff’s principal place of business is located, alleging in
the first cause of action that it is entitled to attorney’s fees
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                                                         CA 15-00412

related to the settlement on a quantum meruit basis, and further
alleging in the second and third causes of action that defendants
engaged in frivolous and fraudulent conduct in commencing the legal
malpractice action. On the same day, but after the instant action was
commenced in Erie County, Supreme Court, Suffolk County, issued an
order directing plaintiff to show cause why the order sought by
defendants should not be granted. In appeal No.1, defendants appeal
from an order denying their motion to dismiss the complaint in the
instant action pursuant to CPLR 3211 and, in appeal No. 2, defendants
appeal from an order denying their motion to transfer venue to Suffolk
County.

     We agree with defendants in appeal No. 1 that the court erred in
failing to grant the motion to dismiss with respect to the second and
third causes of action for failure to state a cause of action pursuant
to CPLR 3211 (a) (7). We therefore modify the order in appeal No. 1
accordingly. To the extent that such is asserted in those causes of
action, we note that New York does not recognize a separate cause of
action to impose sanctions for frivolous conduct pursuant to 22 NYCRR
130–1.1 (see Young v Crosby, 87 AD3d 1308, 1309). To the extent that
the second and third causes of action assert a cause of action for
fraud, we conclude that plaintiff failed to allege the essential
elements of such a cause of action (see Robertson v Wells, 95 AD3d
862, 864).

     Defendants’ contention in appeal No. 1 that the court should have
dismissed the first cause of action for failure to state a cause of
action is not properly before us because they did not seek dismissal
of that cause of action on that ground in their motion (see Ciesinski
v Town of Aurora, 202 AD2d 984, 985). We reject defendants’ further
contention in appeal No. 1 that the court abused its discretion in
denying their motion to dismiss the first cause of action pursuant to
CPLR 3211 (a) (4). That provision “vests a court with broad
discretion in considering whether to dismiss an action on the ground
that another action is pending between the same parties on the same
cause of action” (Whitney v Whitney, 57 NY2d 731, 732). “While
complete identity of parties is not a necessity for dismissal under
CPLR 3211 (a) (4) . . . , there must at least be a ‘substantial’
identity of parties ‘which generally is present when at least one
plaintiff and one defendant is common in each action’ ” (Proietto v
Donohue, 189 AD2d 807, 807-808; see Forget v Raymer, 65 AD2d 953,
954). Here, in the underlying personal injury action, the parties are
the client and the motorist. The parties in the instant action,
however, are plaintiff and defendants. There are thus no common
parties to either action nor the requisite substantial identity of
parties (see Winters v Dowdall, 63 AD3d 650, 651; Credit-Based Asset
Servicing & Securitization v Grimmer, 299 AD2d 887, 887; Blank v
Schafrann, 167 AD2d 745, 746; see generally Proietto, 189 AD2d at
808). Further, although we agree with the dissent that defendants
were not required to commence a separate action to determine and
enforce a charging lien pursuant to Judiciary Law § 475 (see Westfall
v County of Erie, 281 AD2d 979, 980), we conclude that it does not
follow that the court abused its broad discretion in refusing to
dismiss the action properly commenced by plaintiff in Erie County
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                                                         CA 15-00412

before similar relief was sought within a pending action between
different parties in Suffolk County (see generally Whitney, 57 NY2d at
732; Forget, 65 AD2d at 954).

     Defendants contend in appeal No. 2 that the court improperly
denied their motion to transfer venue from Erie County to Suffolk
County (see CPLR 510 [3]). We reject that contention. “A motion for
a change of venue is addressed to the sound discretion of the court,
and absent a clear abuse the court’s determination will not be
disturbed on appeal” (McLaughlin v City of Buffalo, 259 AD2d 1014,
1014). We conclude that the court did not abuse its discretion in
denying the motion inasmuch as defendants failed to meet their burden
of proving that “the convenience of material witnesses and the ends of
justice [would] be promoted by the change” (CPLR 510 [3]; see
Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899,
899; Zinker v Zinker, 185 AD2d 698, 698).

     Finally, contrary to defendants’ further contention in both
appeals, the court did not improvidently exercise its discretion in
denying those parts of their motions seeking attorney’s fees and costs
(see generally 22 NYCRR 130-1.1 [a]).

      All concur except DEJOSEPH, J., who dissents in part and votes to
reverse in accordance with the following memorandum: I respectfully
dissent in part. I agree with my colleagues in appeal No. 1 that
Supreme Court erred in failing to grant defendants’ motion to dismiss
with respect to the second and third causes of action. I also agree
in appeal No. 2 that the court properly denied defendants’ motion to
transfer venue. I respectfully disagree, however, with the majority’s
conclusion in appeal No. 1 that the court did not abuse its discretion
in denying defendants’ motion to dismiss the first cause of action
pursuant to CPLR 3211 (a) (4). I would therefore reverse the order in
appeal No. 1, grant defendants’ motion in its entirety, and dismiss
the complaint.

     As a preliminary matter, I question how the majority concluded
that the court did not abuse its discretion. The court provided no
written or oral basis for its decision; it simply denied the motion.
I find it nearly impossible to determine whether the court did or did
not abuse its discretion when it failed to provide any reasoning for
denying the motion. This is even more troubling in light of the
letter submitted to the court by counsel for defendants, in which
counsel noted, inter alia, that the court had “fail[ed] to state the
legal basis for the . . . decision” and, because of a scheduling
hearing in Suffolk County on the issue of attorney’s fees, asked the
court for clarification. By all accounts in the record before us, the
court never responded. In my view, trial courts have an obligation to
the litigants to provide a basis for their decisions. Failing to do
so is unacceptable and continues to frustrate appellate review (see
generally McMillian v Burden, 136 AD3d 1342, 1343).

     Moving now to the merits, during oral argument of this appeal,
both parties agreed that: (1) the relief—attorney’s fees—sought in
Suffolk County was the same as that sought in Erie County; and (2) it
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                                                         CA 15-00412

affected the same two parties, i.e., plaintiff and defendants. It was
plaintiff’s primary contention that there was simply no other “action”
pending in Suffolk County in order to trigger CPLR 3211 (a) (4).
Interestingly, the majority does not address whether the relief sought
in both venues is substantially the same. Instead, the majority
concludes that “[t]here are . . . no common parties to either action
nor the requisite substantial identity of parties.” I disagree.
Although the captions of the two actions do not match, there is an
action pending in Suffolk County concerning the same relief that
affects the same two parties, i.e., not the underlying personal injury
action itself, but the proceeding brought within that action by
defendants. There is no dispute that within the underlying personal
injury action, defendants, by way of order to show cause and
supporting petition, sought a resolution of the issue concerning the
attorney’s fees between plaintiff and defendants. On that same day,
plaintiff commenced an action in Erie County also seeking, inter alia,
a resolution of the issue concerning the attorney’s fees. As conceded
by the majority, the “defendants were not required to commence a
separate action to determine and enforce a charging lien pursuant to
Judiciary Law § 475.” As I see it, defendants have been faulted for
following common and accepted procedure inasmuch as defendants’
attorney’s fees application in Suffolk County clearly constitutes
another action pending between the same parties for the same relief
(see CPLR 3211 [a] [4]).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
