Motion-Secondary: Troy Williams, Makesha Coye-Williams v. Steinvurzel & Levy Law Group, Ronald Steinvurzel

On June 26, 2020 a Motion-Secondary was filed involving a dispute between Makesha Coye-Williams, Troy Williams, and Ronald Steinvurzel, Steinvurzel & Levy Law Group, for Torts - Other Professional Malpractice (Legal Malpractice) in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 08/03/2022 05:18 PM INDEX NO. 56628/2020
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/03/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-------------------------------------------------------------------------X
TROY WILLIAMS and MAKESHA COYE-WILLIAMS,
Index No.: 56628/2020
Plaintiffs,
AFFIRMATION IN
-against- SUPPORT OF MOTION
TO LIFT STAY, RENEW
AND TO DISMISS
STEINVURZEL & LEVY LAW GROUP and
RONALD STEINVURZEL,

Defendants.
-------------------------------------------------------------------------X

JONATHAN B. ISAACSON, an attorney duly admitted to practice before the Courts of

this State, aware of the penalties of perjury, affirms the truth of the following:

1. I am a partner of the law firm of Kaufman Dolowich & Voluck LLP, attorneys for

defendants Steinvurzel & Levy Law Group and Ronald Steinvurzel (collectively referred to

herein as “Defendants”). As such, I am fully familiar with the facts and circumstances set forth

herein.

2. I respectfully submit this Affirmation in support of Defendants’ motion seeking

an Order:

a) pursuant to CPLR §2201, CPLR §5015, and any other rules as may be applicable,

lifting and/or vacating the stay of this action, as set forth in this Court’s Order

dated December 30, 2020;

b) pursuant to CPLR §2221, granting Defendants renewal of their prior motion to

dismiss;

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c) pursuant to CPLR §3211 (a)(1) and (a)(7) dismissing the Complaint of plaintiffs

Troy Williams and Makesha Coye-Williams (collectively referred to herein as

“Plaintiffs”) in its entirety; and

d) granting such other, further, and different relief as this Court deems just and

proper.

PRELIMINARY STATEMENT

3. The instant legal malpractice action must be dismissed based upon Plaintiffs’

failure to plead the essential elements of a legal malpractice claim. Plaintiffs assert that

Defendants, their prior counsel with regard to an underlying property damage claim, were

negligent by failing to timely submit a Sworn Proof of Loss statement to their homeowner’s

insurer, Liberty Insurance Corporation (“Liberty”), resulting in Liberty’s denial of the claim. In

crafting their malpractice claim, Plaintiffs completely ignore the uncontroverted fact that Liberty

denied coverage on numerous other grounds unrelated to the Sworn Proof of Loss issues,

including rampant fraud and malfeasance by Plaintiffs, which Liberty uncovered during the

course of adjusting and investigating Plaintiffs’ claims. As such, there is simply no plausible

basis for Plaintiffs to alleged that the Defendants’ alleged malpractice (failing to timely submit a

proof of loss to Liberty for Plaintiffs), was the proximate cause of Liberty’s coverage denial.

4. When the instant action was commenced, Plaintiffs were still embroiled in

coverage litigation with Liberty, pursuant to which they sought to challenge Liberty’s denials of

coverage. In doing so, Plaintiffs argued that Liberty waived the right to assert the untimeliness

of the Sworn Proof of Loss as a defense to coverage because Liberty’s own agent and

remediation contractor made it impossible for Plaintiffs to comply with the Sworn Proof of Loss

requirement under the subject policy. Plaintiffs also argued that they did not commit the acts of

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fraud and misrepresentation alleged by Liberty. At the time that Defendants herein filed their

initial motion to dismiss, Liberty had already been denied summary judgment in the coverage

action, meaning that if Plaintiffs prevailed at trial, Liberty would be required to cover their claim.

5. When the instant action was commenced, Defendants moved to dismiss on a

variety of grounds, including that this action was premature in light of the fact that Plaintiffs’

action was still pending. Rather, than dismiss this action, an Order was issued staying this case

pending the resolution of Plaintiffs’ coverage action. In doing so, this Court recognized that the

adjudication of Liberty’s coverage positions in the coverage action, could potentially impact

liability in the instant action. However, those issues, which the Court saw as critical to

Plaintiffs’ malpractice claim, were never adjudicated. Instead, Plaintiffs chose to settle and

discontinue all claims against Liberty, rendering their malpractice claims hopelessly speculative.

In this regard, Plaintiffs can offer nothing more in support of their claim for proximately caused

damages than speculation regarding what could have occurred if they had hypothetically litigated

their coverage claims to conclusion. Under well settled law, such speculation and surmise

concerning hypothetical future events is insufficient to plead a viable malpractice claim and, as

such, Defendants are entitled to dismissal.

SUMMARY OF THE ALLEGATIONS IN THE COMPLAINT AND
THE DOCUMENTARY EVIDENCE

A. The Underlying Claim and Liberty’s Denial of Same

6. On or about November 29, 2016, Plaintiffs experienced a fire at their home (the

“Fire”) located at 9 Woodland Place, White Plains, New York (the “Premises”). See Exhibit

“A”1 [NYSCEF 1]2 at ¶9.

1
Numerous Exhibits to this motion had been previously filed as part of Defendants’ initial motion to dismiss and
stay. While Defendants link to those prior filings for the convenience of the Court, they are also resubmitted as
exhibits to the instant motion as well.

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7. According to Plaintiffs, the Fire caused extensive damage to the Premises as well

as to Plaintiffs’ personal property (contents). See Exhibit “A” at ¶10.

8. At the time of the Fire, Plaintiffs had a policy of insurance issued by Liberty

Insurance Company (“Liberty”), which included fire damage provisions (the “Policy”). See

Exhibit “A” at ¶11-12.

9. After the Fire, Plaintiffs timely filed a claim with Liberty related to the damage

caused by the Fire (the “Claim”). See Exhibit “A” at ¶13

10. On February 1, 2012, Plaintiffs retained Defendants to represent them with

respect to the Claim. See Exhibit “A” at ¶14.

11. Plaintiffs assert that Defendants undertook to represent them with regard to all

aspects of the Claim, including the filing of necessary forms and other paperwork with Liberty.

See Exhibit “A” at ¶16.

12. On or about April 26, 2017, Liberty’s counsel, Feldman Rudy, Kirby &

Farquhanson, P.C., sent a letter and Sworn Proof of Loss advising Defendants that Liberty

required the Plaintiffs to file a Sworn Proof of Loss in support of the Claim. See Exhibit “A” at

¶17; Exhibit “B” for a copy of the April 25, 2017 letter [NYSCEF 7].3

13. Plaintiffs assert that Defendants received Liberty’s April 26, 2017 letter on May

1, 2017. See Exhibit “A” at ¶19.

14. Defendants sent Liberty’s April 26, 2017 letter and Sworn Proof of Loss forms to

Plaintiffs by e-mail on or about April 26, 2017. See Exhibit “C” for the transcript from the

2
The NYSCEF number refers to the docket number in which a document was previously filed in the instant action.
3
The version of the April 26, 2017 letter attached as Exhibit “B” was filed by Plaintiffs in an underlying coverage
action that they commenced against Liberty. As such, it contains the NYSCEF stamp from that action, as well as
this action.

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deposition of Makesha Coy-Williams from Plaintiffs’ underlying coverage action against Liberty

at 91:10 – 92:2 [NYSCEF 8]; Exhibit “D” for Defendant’s e-mail to Plaintiff transmitting the

Proof of Loss [NYSCEF 22].

15. Plaintiffs received the April 26, 2017 letter and Sworn Proof of Loss forms but

never completed them. See Exhibit “C” at 92:3-12 and Exhibit “D”.

16. The Sworn Proof of Loss was not returned to Liberty within 60 days. See Exhibit

“A” at ¶21; Exhibit “C” at 92:6-15.

17. On or about July 7, 2017, Liberty denied coverage for the Claim (the “Denial

Letter”). See Exhibit “A” at ¶¶22-23; Exhibit “E” for the Denial Letter [NYSCEF 9].4

18. Liberty denied coverage to Plaintiffs under several provisions in the Policy. See

Exhibit “E”

19. First, Liberty denied coverage under the “Concealment or Fraud” Condition and

“Intentional Loss” Exclusion of the Policy. In doing so, Liberty asserted:

The fraudulent concealments and misrepresentations concerning the facts and
circumstances of the alleged loss violated the Concealment or Fraud provision of
the policy. Fraudulent acts were committed which intentionally exaggerated and
enhanced the claimed damages.

See Exhibit “E” at pp. 1-2.

20. Second, Liberty denied coverage based upon Plaintiffs’ purported failure to

provide a Sworn Proof of Loss to Liberty. See Exhibit “E” at p.3.

21. After Liberty issued the Denial Letter, Defendants were discharged as counsel for

Plaintiffs and Plaintiffs retained attorney Seth Rosner to commence an action against Liberty

asserting, in part, that Liberty breached the Policy by denying coverage for the Claim. See

Exhibit “F” [NYSCEF 10]

4
The version of the Denial Letter attached as Exhibit “D” was filed in an underlying coverage action that Plaintiffs
commenced against Liberty. As such, it contains the NYCSEF stamp from that action, as well as this action.

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B. Plaintiffs Commence and Abandon Their Breach of Contract Action Against
Liberty

22. On or about February 14, 2018, Plaintiffs commenced an action against Liberty in

the Supreme Court, Westchester County, under index number 52108/2018 (the “Liberty

Action”). See Exhibit “F” for the Complaint in the Liberty Action.

23. The Complaint in the Liberty Action (the “Liberty Complaint”) was verified by

both Plaintiffs. See Exhibit “F”

24. The first cause of action in the Liberty Complaint for breach of contract asserts

that Liberty breached the terms of the Policy by wrongly failing and refusing to reimburse

Plaintiffs for what they are owed for damages caused by the Fire and by failing to perform other

obligations that it owed under the Policy. See Exhibit “F” at ¶26

25. The breach of contract claim seeks actual damages suffered as a result of

Liberty’s breach, including costs associated with “recovering, repairing and/or replacing the

damaged property, including compensatory damages…” See Exhibit “F” at ¶27. In other words,

they seek to recover the losses from the Fire.

26. The second cause of action in the Liberty Complaint for bad faith and

consequential damages is based upon Liberty’s refusal to fully pay the Claim. See Exhibit “F” at

¶¶28-32.

27. On or about April 9, 2018, Liberty interposed its Verified Answer with

Affirmative Defenses and Counter-Claims in the Liberty Action. See Exhibit “G” [NYSCEF 11]

28. In its Verified Answer, Liberty denied that itbreached the Policy. See Exhibit

“G” at p. 3.

29. Liberty’s Verified Answer also asserted numerous Affirmative Defenses based

upon various provisions/conditions in the Policy. These included Plaintiff’s failure to comply

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with the “Concealment or Fraud” condition based upon Plaintiffs’: (i) willful concealment and

misrepresentation of material facts and circumstances related to the Claim; (ii) intentional and

fraudulent exaggeration of both dwelling and contents damages arising from the Fire; and (iii)

submission of false, altered, and spurious documentation in support of their Claim. See Exhibit

“G” at p. 3-6.

30. Liberty’s Verified Answer also asserted an affirmative defense based upon the

“Intentional Loss” provision of the Policy. This affirmative defense was premised upon acts

committed and directed by Plaintiffs in attempting to increase, exacerbate and cause further loss

to the Premises for the purpose of enhancing the value of the Claim. See Exhibit “G” at pp. 6-7.

31. Finally, Liberty included as an affirmative defense, Plaintiffs’ failure to submit a

Sworn Proof of Loss. See Exhibit “G” at pp. 7-8.

32. Liberty also asserted a counter-claim against Plaintiffs alleging that once it is

established that Plaintiffs violated the “Concealment or Fraud” conditions of the Policy,

coverage will be deemed vitiated, and Liberty will be entitled to recover $69,372.35 that it has

already paid Plaintiffs towards the Claim. See Exhibit “G” at pp. 10-11.

33. On December 5, 2019, Liberty filed a motion in the Liberty Action, seeking

summary judgment on its fifth affirmative defense based upon Plaintiffs’ failure to comply with

the Sworn Proof of Loss condition in the Policy and seeking to dismiss the Liberty Complaint in

its entirety based upon Plaintiffs’ failure to comply with the Sworn Proof of Loss condition and

their failure to sufficiently plead claims for bad faith and consequential damages. See Exhibit

“H” [NYSCEF 12]

34. Liberty’s summary judgment motion was supported by an affirmation of attorney

Gerald Kirby (the “Kirby Aff.”), which detailed numerous acts of fraud and concealment by

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Plaintiffs that were uncovered during Liberty’s investigation of the Claim. The Kirby Aff.

argued that based upon Liberty’s discovery of such fraud and concealment by Plaintiffs, Liberty

established a good faith basis for denying coverage for the Claim and that Plaintiffs’ claim for

bad faith and consequential damages must be dismissed. See Exhibit “I” at ¶¶23-38 [NYSCEF

13]

35. Among the acts of fraud and concealment identified in the Kirby Aff. was

Plaintiffs’ submission of false and fraudulent invoices. See Exhibit “I” at ¶¶32-38. Plaintiffs’

submission of such false and fraudulent invoices was also detailed in affidavits of Frank

Maccione and Jay Cohn, which were also submitted in support of Liberty’s motion. See Exhibit

“J” for the Maccione Affidavit [NYSCEF 14] and Exhibit “K” for the Cohn Affidavit [NYSCEF

15].

36. Liberty affirmatively alleged that Plaintiffs’ “fraudulent submissions and altered

invoices was a significant factor in the denial of [Plaintiffs’] claim.” See Exhibit “I” at ¶32.

37. On or about June 6, 2020, Plaintiffs interposed their opposition to Liberty’s

motion for summary judgment in the Liberty Action, through which Plaintiffs argued that they

had not been provided with sufficient notice and opportunity to respond to Liberty’s demand for

a Sworn Proof of Loss and that their claim for bad faith/consequential damages was sufficiently

plead. See Exhibit “L” for the memorandum of law in opposition.5

38. On or about February 19, 2020, Liberty interposed its opposition to Plaintiffs’

cross-motion and a reply in further support of its own motion. See Exhibit “M” at ¶¶3-14

[NYSCEF 16]

5
Plaintiffsalso cross-moved (i)to amend their Verified Complaint to include additional details concerning the
nature of the consequential damages they sustained as a result of the Fire and Liberty’s denial of the Claim and (ii)
to compel additional discovery from Liberty. Those applications were ultimately denied and are not relevant to
Defendants instant motion.

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39. On February 25, 2020, Plaintiffs interposed their reply in further support of their

cross-motion, through which they argued that even if Liberty had properly transmitted its

demand for a Sworn Proof of Loss, the actions of Rainbow, the remediation contractor hired by

Liberty to handle the Claim, made it impossible for Plaintiffs to comply with the Sworn Proof of

Loss request because the remediation contractor moved Plaintiffs’ belongings to a warehouse far

from Plaintiffs’ home, which was difficult for Plaintiffs’ to access. Moreover, the remediation

contractor hired by Liberty failed to provide Plaintiffs with an inventory of the contents that it

removed from the Property. See Exhibit “N” for Plaintiffs’ Reply Memo of Law at p. 2

[NYSCEF 18]

40. In fact, Plaintiffs noted that Liberty had commenced a lawsuit in Federal Court

against the same remediation contractor with regard to their handling of other claims for Liberty.

See Exhibit “N” at ¶¶3-4. As such, Plaintiffs could not be held responsible for the acts of those

contractors. See Exhibit “O” for Reply Affirmation at ¶¶3-6, 11, 14 [NYSCEF 19].

41. On May 4, 2010, the Court in the Liberty Action issued a Decision & Order

denying Liberty’s motion for summary judgment (the “SJ Order”). See Exhibit “P” [NYSCEF

20].

42. In rejecting Liberty’s contention that it was entitled to summary judgment based

on Plaintiffs’ purported failure to provide a Sworn Proof of Loss, the Court held that Plaintiffs

offered a reasonable excuse for not doing so. In this regard, the Court noted that the remediation

company assigned by Liberty to handle the Claim made it impossible for Plaintiffs to comply

with the Sworn Proof of Loss condition.

43. The Court further noted that at the time that Liberty hired the remediation

contractor to handle Plaintiffs’ Claim, Liberty already had concerns about that contractor’s

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conduct on other claims and stopped using the contractor for water damage cases. See Exhibit

“P” at pp. 7-8.

44. Specifically, the Court held:

Based upon the foregoing, the Court finds that there are issues of fact as to
whether Liberty waived the requirement or is estopped from asserting the
defense based on the plaintiffs possible inability to comply with the
demand pursuant to Insurance Law § 3407. Therefore, that part of
Liberty’s motion seeking summary judgment on its fifth affirmative
defense and dismissing the plaintiffs’ breach of contract cause of action, is
denied.

See Exhibit “P” at pp. 7-8

45. The Court, however, granted Liberty summary judgment dismissing Plaintiffs’

claim for bad faith/consequential damages and denied Plaintiffs’ cross-motion to amend to

amplify a consequential damages and bad faith claim. See Exhibit “P” at pp. 8-11.

46. Finally, the Court referred the Liberty Action for a preliminary conference to

address the outstanding discovery issues so that the parties could attempt to resolve their

discovery disputes in that forum. See Exhibit “P” at p. 10.

47. On or about August 10, 2020, Liberty filed a Notice of Appeal of the SJ Order,

asserting that the Court erred in denying its motion for summary judgment by “finding that there

were issues of fact as to whether Liberty either waived or was estopped from asserting Plaintiffs’

failure to file proofs of loss as an absolute defense for coverage under its policy. See Exhibit

“Q” [NYSCEF App. 1]6

48. On or about March 4, 2021, Liberty perfected its appeal of the SJ Order. In doing

so, Liberty argued that the Supreme Court erred by finding that there were issues of fact as to

6
The NYSCEF App. number refers to the docket number in which a document was previously filed in Liberty’s
Appellate Matter, bearing Second Department case number 2020-06762.

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whether Liberty waived or was estopped from relying upon Plaintiff’s purported late Proof of

Loss as a basis to deny the claim. See Exhibit “R” [NYSCEF App. 7]

49. Plaintiffs filed a Respondents’ Brief at the Appellate Division, through which they

made compelling arguments that based upon Liberty’s handling of the underlying loss, not only

was Liberty estopped from relying upon the purported “untimely” Proof of Loss as a defense to

coverage, but that under well settled appellate authority, they should be afforded the opportunity

to cure any alleged deficiencies with the Proof of Loss (which would render Liberty’s Proof of

Loss defense moot). See Exhibit “S” [NYSCEF App. 10]

50. In making these arguments, Plaintiffs noted that the conduct of Rainbow - - the

fire mitigation company assigned to the Claim by Liberty - - made it impossible for Plaintiffs to

prepare a proof of loss statement (i.e., Liberty’s own agent made it impossible for Plaintiff’s to

comply with Liberty’s request for a Proof of Loss Statement). See Exhibit “S”

51. In this regard, Rainbow had removed all contents from Plaintiffs’ home without

creating an inventory list and took them to a distant storage unity which was difficult of Plaintiffs

to access. See Exhibit “S”

52. Moreover, when Liberty assigned Rainbow to the Claim, Rainbow had already

been removed from Liberty’s list of approved water damage companies due to unspecified

concerns about the company. Plaintiffs noted that Rainbow was eventually removed from

Liberty’s panel of fire damage mitigation companies too. As such, Plaintiffs argued that they

should not be penalized or prejudiced by the mishandling of their claim by a fire mitigation

company assigned by Liberty, despite Liberty already having doubts about its ability to handle

such claims. See Exhibit “S”7

7 Liberty interposed a Reply brief, which essentially regurgitated the arguments made in its Appellant’s Brief and
which unconvincingly sought to distinguish the legal authority presented by Plaintiffs in support of their argument

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53. On April 29, 2021, while briefing on Liberty’s appeal was stillongoing, Justice

Lefkowitz issued Trial Readiness Order in the Liberty Action, pursuant to which motions for

summary judgment were required to be served and filed via NYSCEF “within 60 day following

filing of the Note of Issue.” See Exhibit “U” [NYSCEF Liberty 84]8

54. On April 30, 2021, Liberty filed the Note of Issue in the Liberty Action, certifying

that all discovery had been completed and demanding a trial by jury on all issues. See Exhibit

“V” [NYSCEF Liberty 85]

55. Neither Liberty nor Plaintiffs filed a motion for summary judgment in accordance

with the 60-day deadline set forth in the Trial Readiness Order in the Liberty Action. See

Exhibit “W” for NYSCEF docket from Liberty Action.

56. The Liberty Action was reassigned to the Settlement Conference Part, and was

marked settled on September 24, 2021. See Exhibit “W”

57. A Stipulation of Discontinuance, discontinuing the Liberty Action with prejudice

was filed on October 21, 2021. See Exhibit “W” and “X” for the Stipulation [NYSCEF Liberty

88]

58. On October 27, 2021, a Stipulation was filed in the Appellate Division

withdrawing Liberty’s Appeal with Prejudice. See Exhibit “Y” [NYSCEF App. 14]

that they were entitledto a conditional order allowing them to serve a proof of loss to cure any purported
deficiencies with the timing of same. See Exhibit “T” [NYSCEF App. 13]

8 The NYSCEF Liberty number refers to the docket number in which a document was previously filed in the Liberty
Action in the Supreme Court, Westchester under index number 52108/2018.

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C. The Legal Malpractice Claims Asserted Against Defendants And Procedural
History

59. Plaintiffs commenced the instant malpractice action on or about June 26, 2020,

claiming that Defendants were negligent by failing to ensure that a Sworn Proof of Loss was

timely submitted to Liberty. See Exhibit “A” at ¶¶24-29.

60. In direct contradiction to the Denial Letter and the allegations by Liberty in the

Liberty Action, Plaintiffs assert that if a Sworn Proof of Loss had been timely submitted to

Liberty, the Claim would not have been denied and Plaintiffs would have received payment for

their losses from Liberty. See Exhibit “A” at ¶¶24, 29.

61. On September 2, 2020, Defendants served and filed a motion seeking to dismiss

Plaintiff’s malpractice action on the basis that Plaintiffs failed to plead proximately caused

damages and because their claims were premature. With regard to the failure to plead

proximately caused damages, Defendants noted that while the Complaint harped on Liberty’s

denial of coverage based upon the alleged untimely Proof of Loss, it failed to take into account

that Liberty also denied coverage based upon the fraud and intentional acts of Plaintiffs

uncovered by Liberty during its investigation into the Underlying Claim (i.e., Liberty had a

defense to coverage completely unrelated to any alleged conduct of Defendants). See Exhibit “Z”

at ¶59-64 [NYSCEF 4-22]. With regard to prematurity, Defendants argued that since Plaintiffs’

coverage action against Liberty was still pending and the Court had already denied summary

judgment to Liberty, it was premature to assert a legal malpractice claim, as Plaintiffs could

prevail against Liberty at trial. Finally, Defendants argued that if the action was not dismissed, it

should be stayed pending the resolution of the Plaintiffs’ coverage claims against Liberty, as the

adjudication of Liberty’s coverage positions in that action would bear directly upon Defendants’

potential liability in the malpractice action. See Exhibit “Z” at ¶59-64

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62. In opposition, Plaintiffs’ interposed an attorney affirmation, which essentially

argued that the Court should simply ignore the fact that Liberty denied coverage to Plaintiffs

based upon the fraud and intentional acts discovered by Liberty during its investigation of the

Underlying Claim, and proceed as if the only basis for denial of coverage was the purported

untimeliness of the Proof of Loss, because that was the only issue raised by Plaintiffs in their

malpractice complaint. See Exhibit “AA” [NYSCEF 24-27]

63. Defendants interposed a reply in further support of their motion to dismiss and

stay, which noted that Plaintiffs pretending that Liberty never disclaimed based upon intentional

acts and fraud does not mean it never happened and that based upon the multiple grounds for

Liberty’s denial of coverage, Plaintiffs could not viably plead any proximately caused damages

arising from the Proof of Loss issue and that the action should either be dismissed or stayed. See

Exhibit “BB” [NYSCEF 28]

64. On January 12, 2021, the Court issued Order which denied that part of

Defendants’ motion which sought dismissal, but which stayed the Malpractice Action, pending

the resolution of the Coverage Action. See Exhibit “CC” [NYSCEF 29] In doing so, the Court

stated:

Here, the defendants have submitted the denial letter, which this Court deems to be
sufficient documentary evidence to show that the plaintiffs' claim was denied for other
reasons in addition to the failure to submit the sworn proof of loss. However, the
plaintiffs are still litigating the matter with Liberty and a final determination has not been
made as to the denial of the plaintiffs' claim and it is not known whether Liberty will
prevail on all of the reasons for the denial of the claim. Therefore, for judicial economy,
the Court will not dismiss this action, but in the alternative stay the action until the
plaintiffs' case against Liberty is resolved.

See Exhibit “CC”

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ARGUMENT

THE STAY OF THIS ACTION IS NO LONGER NECESSARY
AND SHOULD BE FORMALLY LIFTED AND/OR VACATED

65. Defendants argued in support of their original motion to dismiss that the instant

legal malpractice action was premature because Plaintiffs were still actively litigating their

coverage claims against Liberty in the Liberty Action.

66. While this Court declined to dismiss this action, it ordered that “the action is

stayed until [the Liberty Action] is resolved.” See Exhibit “CC.” As the Liberty Action was

marked “settled” and all aspects of it have been discontinued with prejudice, there is simply no

basis for the stay in the instant action to remain. See Exhibits “W” “X” and “Y.”

67. As such, to the extent that the stay in the instant action is not yet lifted an order

should be issued lifting and or vacating it. See MOL at p. 2.

DEFENDANTS ARE ENTITLED TO RENEWAL
OF THEIR MOTION TO DISMISS

68. The general rule is that a motion to renew is based upon newly discovered

evidence which was not available at the time of the prior motion. However, the requirement that

a motion to renew be based on new facts is a flexible determination, and a court has broad

discretion to grant motions for renewal. See MOL at pp. 3-4.

69. In deciding Defendants’ prior motion, the action was stayed rather than dismissed

because itwas not yet known how the Liberty Action would be resolved. As this Court aptly

noted in its prior Order, since a final determination had not yet been made in that action, it was

“not known whether Liberty will prevail on all of the reasons for the denial of the claim.” See

Exhibit “CC”

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70. Now that Plaintiffs have settled and discontinued the Liberty Action, even after

receiving a favorable ruling during dispositive motion practice, it will never be known how that

action would have been resolved, rendering Plaintiffs’ claims in the instant legal malpractice

action hopelessly speculative. See Exhibits “W” “X” and “Y.”

71. As such, Defendants are entitled to reargument of their dismissal motion, and

upon reargument entitled to dismissal of the Complaint, as Plaintiffs’ settlement of the Liberty

Action has established the complete lack of viability of Plaintiffs’ malpractice claim.

STANDARD OF REVIEW

72. On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is afforded a

liberal construction. However, the “favorable treatment” given a plaintiff for purposes of a CPLR

3211(a)(7) motion “is not limitless.” Allegations consisting of bare legal conclusions as well as

factual claims either inherently incredible or flatly contradicted by documentary evidence, are

not presumed to be true and accorded every favorable inference.” See MOL at pp. 4-5.

73. While factual allegations in a claim should be accorded a favorable inference,

when a moving party offers evidentiary material, the court is required to determine whether the

proponent of the claim actually has a cause of action, not whether they have stated one. The

Court should dismiss a cause of action if the facts as alleged in the complaint, being accepted as

true, do not fit within any cognizable legal theory. See MOL at pp. 4-5.

74. The sufficiency of a pleading that

Case Info

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Document Filed Date

August 03, 2022

Case Filing Date

June 26, 2020

County

Parties

ISAACSON, JONATHAN BENJAMIN Attorney for the Defendant
Makesha Coye-williams Plaintiff
Ronald Steinvurzel Defendant
SCHER, BRETT A Attorney for the Defendant
STEINVURZEL & LEVY LAW GROUP Defendant
Troy Williams Plaintiff
VALET, THOMAS PAUL Attorney for the Plaintiff
JONATHAN LASKIN Attorneys for Plaintiffs
GERALD KIRBY Attorneys for Defendants
SETH ROSNER Attorneys for Plaintiffs
LISA SOLOMON Attorneys for Plaintiffs
ALAN BENDER Attorney

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Motion-Secondary: Troy Williams, Makesha Coye-Williams v. Steinvurzel & Levy Law Group, Ronald Steinvurzel

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