Lefevre v. Rosen, Esq.
MEMORANDUM-DECISION and ORDER - That Lefevre's 23 request to file a surreply is DENIED. That Rosen's 8 motion to dismiss is GRANTED. That Lefevre's amended complaint (Dkt. No. 16) is DISMISSED. Signed by Judge Gary L. Sharpe on 12/15/2015. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LARRY ROSEN ESQ.,
FOR THE PLAINTIFF:
Levidow, Levidow & Oberman
299 Broadway - Suite 1800
New York, NY 10007
FOR THE DEFENDANT:
Hinckley, Allen Law Firm
30 South Pearl Street, Suite 901
Albany, NY 12207
PETER P. LODUCA, ESQ.
CHRISTOPHER V. FENLON,
MICHAEL L. KOENIG, ESQ.
Gary L. Sharpe
MEMORANDUM-DECISION AND ORDER
Plaintiff Sudane Lefevre commenced this diversity action against
defendant Larry Rosen Esq., alleging negligence, legal malpractice, and
breach of fiduciary duty. (Am. Compl. ¶¶ 5-9, Dkt. No. 16.) Pending is
Rosen’s motion to dismiss the complaint for failure to state a claim. (Dkt.
No. 8.) Lefevre opposes the motion. (Dkt. No. 17.) For the reasons that
follow, Rosen’s motion is granted.1
Also pending is Lefevre’s request for leave to file a surreply to address “an argument
made by [Rosen] for the first time in his [r]eply [m]emorandum of [l]aw,” (Dkt. No. 23), which
Rosen opposes, (Dkt. No. 24). “Neither the Federal Rules of Civil Procedure nor the Local
Rules permit such a surreply, and the [c]ourt is under no obligation to give plaintiff another
chance to make his arguments.” Clark v. City of Oswego, No. 5:03-CV-202, 2007 WL 925724,
at *7 n.9 (N.D.N.Y Mar. 26, 2006) (citation omitted); see N.D.N.Y. L.R. 7.1(b)(1) (“A surreply is
not permitted.”). Accordingly, Lefevre is denied leave to file a surreply and the proposed
surreply submitted with his request will not be considered. Notably, the court is also well
aware of the principle that new arguments raised in a reply should typically be disregarded.
See Ditullio v. Vill. of Massena, 81 F. Supp. 2d 397, 408-09 (N.D.N.Y. 2000). Here, Lefevre
objects to Rosen’s reliance on a decision cited for the first time in his reply papers. (Dkt. No.
23 at 1.) However, as Rosen points out, he did not raise a new argument in his reply papers,
but rather, “cited a new case in response to [Lefevre’s] opposition and in further support of the
same arguments raised in the motion to dismiss.” (Dkt. No. 24 at 1.)
Unless otherwise noted, the facts are drawn from Lefevre’s amended complaint and
presented in the light most favorable to him. The court notes that the parties have provided
with their motion papers various documents from the underlying criminal prosecution for the
court to consider. The court may look to matters of public record when considering a motion to
dismiss for failure to state a claim. See Byrd v. City of New York, No. 04-1396-CV, 2005 WL
1349876, at *1 (2d Cir. June 8, 2005) (explaining that the court, on a motion to dismiss
pursuant to Rule 12(b)(6), may consider matters that are subject to judicial notice without
converting the motion to one for summary judgment). To that end, “‘[a] court may take judicial
notice of a document filed in another court not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such litigation and related filings.’” Global Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int’l Star Class
Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)). In this
case, the court has considered the May 9, 2012 Uniform Sentence and Commitment form,
(Dkt. No. 9, Attach. 3), and the transcript of the February 20, 2013 proceedings before County
Court, (Dkt. No. 17, Attach. 1), for the factual background of the case. See L–7 Designs, Inc.
v. Old Navy, LLC, 647 F.3d 419, 421-22 (2d Cir. 2011). The other two documents which
Rosen offers, the February 27, 2012 decision and order of County Court (Herrick, J.), (Dkt. No.
9, Attach. 1), and the May 9, 2012 special information charging Lefevre with a predicate
offense, (Dkt. No. 9, Attach. 2), are irrelevant to the court’s analysis set forth below, and,
On July 9, 2011, Lefevre was arrested for possession of drugs and
loitering, pursuant to N.Y. Penal Law §§ 220.09 and 240.36. (Am. Compl.
¶ 2.) Apparently, Lefevre was arrested after calling 911 in need of medical
attention for another individual. (Id. ¶¶ 5, 10; Dkt. No. 17, Attach. 1 at 3.)
After Lefevre’s arrest, but before an indictment was returned, the New York
State legislature, on July 20, 2011, passed a “Good Samaritan Law,” which
was to become effective on September 18, 2011. (Am. Compl. ¶¶ 2, 5);
see N.Y. Penal Law § 220.78. This law states that, with certain limited
exceptions, “[a] person who, in good faith, seeks health care for someone
who is experiencing a drug or alcohol overdose or other life threatening
medical emergency shall not be charged or prosecuted for a controlled
substance offense under article two hundred twenty” of the Penal Law.
N.Y. Penal Law § 220.78(1).
On October 28, 2011, Lefevre was indicted by a grand jury for drug
possession and loitering. (Am. Compl. ¶ 2.) Subsequently, in February
2012, Lefevre retained Rosen to act as his defense counsel. (Id.) Relying
on Rosen’s advice, Lefevre ultimately pleaded guilty to criminal possession
of a controlled substance in the fourth degree. (Id. ¶ 6; Dkt. No. 9, Attach.
therefore, the court excludes them from its consideration.
3 at 2.) In May 2012, he was sentenced to three and one-half years in
prison. (Am. Compl ¶ 6.) While incarcerated, he moved pro se to vacate
the judgment. (Id. ¶ 10.) On February 20, 2013, after Lefevre had been
incarcerated for approximately one year, his conviction and sentence were
vacated and the indictment was dismissed because County Court (Herrick,
J.) found the Good Samaritan Law precluded his prosecution. (Id. ¶¶ 9-10;
Dkt. No. 17, Attach. 1.)
Lefevre commenced this action by filing a complaint on October 27,
2014. (Compl., Dkt. No. 1.) Before filing an answer, Rosen moved to
dismiss the complaint for failure to state a claim. (Dkt. No. 8.) In response
to that motion, and less than twenty-one days after it was filed, Lefevre
filed an amended complaint.3 (See generally Am. Compl.) In his amended
complaint, Lefevre alleges that Rosen committed negligence and/or
malpractice, and breach of fiduciary duty in his legal representation of
Because Lefevre had not previously amended his pleading, he was entitled, as a
matter of course, to amend the complaint within twenty-one days after service of Rosen’s
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Fed. R. Civ. P. 15(a)(1)(B).
Accordingly, the operative pleading is Lefevre’s amended complaint.
Lefevre.4 (Id. ¶¶ 5-9.) Thereafter, the court granted Rosen’s letter motion
seeking to construe his motion to dismiss as against the amended
complaint. (Dkt. No. 20.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on other
grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d
Rosen first argues that Lefevre’s claim for malpractice is not legally
cognizable. (Dkt. No. 10 at 7-10.) Specifically, Rosen contends that,
because the Good Samaritan Law went into effect after the date of
Lefevre’s criminal conduct, the law does not apply to Lefevre’s conduct,
Although the parties agree that Lefevre’s fraud claim should be dismissed, this claim
is not asserted in Lefevre’s amended complaint. (Dkt. No. 17 at 3; Dkt. No. 21 at 7; see
generally Dkt. No. 16.)
The parties appear to agree, and the court concurs, that New York law applies to this
and Rosen did not commit malpractice by failing to raise it as a defense.
(Id.) On the other hand, Lefevre argues that his arrest prior to the effective
date of the statute is immaterial, because his indictment and conviction
occurred after the statute’s effective date. (Dkt. No. 17 at 4-5.) For the
reasons that follow, the court agrees with Rosen that dismissal is
Under New York law, a cause of action to recover damages for legal
malpractice must allege: “(1) that the attorney failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by a
member of the legal profession[;] (2) that the attorney’s breach of the duty
proximately caused the [client] actual and ascertainable damages”; and (3)
that the attorney’s negligence was “the ‘but for’ cause of any damage to
the client.” Byrne & Storm, P.C. v. Handel, No. 1:12-CV-716, 2013 WL
2444092, at *4 (N.D.N.Y. June 5, 2013) (internal quotation marks and
citations omitted); see Hanlin v. Mitchelson, 794 F.2d 834, 838 (2d Cir.
1986). “For malpractice actions arising from allegations of negligent
representation in a criminal matter, the plaintiff must have at least a
colorable claim of actual innocence—that the conviction would not have
resulted absent the attorney’s negligent representation.” Dombrowski v.
Bulson, 19 N.Y.3d 347, 350-51 (2012) (citation omitted).
Here, Lefevre asserts that Rosen was negligent in: (1) failing to
explain that the charges against Lefevre should have been dismissed
pursuant to the Good Samaritan Law; (2) recommending that Lefevre plead
guilty and accept a prison sentence of three and one-half years; (3) “not
representing the best interest of [Lefevre] and not informing [him] that all
charges against him should be dismissed”; and (4) “taking large sums of
money under the guise of ‘non-refundable’ retainers without any account
therefor.” (Am. Compl. ¶¶ 5-8.) According to Lefevre, Rosen’s negligence
caused him to unnecessarily serve one year of his prison sentence, which
resulted in “his loss of liberty, loss of enjoyment of life, financial hardship
and damage to reputation.” (Id. ¶ 9.) Finally, Lefevre asserts that his
conviction was eventually vacated, and the indictment dismissed, because
the Good Samaritan Law barred his prosecution. (Id. ¶ 10.) Ultimately,
Lefevre’s malpractice claim hinges on his assertion that his conviction
would not have resulted, but for Rosen’s failure to assert the Good
Samaritan Law as a defense of Lefevre’s conduct. Thus, if, as Rosen
alleges, the Good Samaritan Law does not apply to Lefevre’s conduct,
Lefevre’s malpractice claim must be dismissed. See Simmons v.
Edelstein, 32 A.D.3d 464, 466 (2d Dep’t 2006) (“To survive dismissal, the
complaint must show that, but for counsel’s alleged malpractice, the
plaintiff would not have sustained some actual ascertainable damages.”).
In New York, generally, non-procedural statutes will not be applied
retroactively without a clear expression of legislative intent. See CFCU
Cmty. Credit Union v. Little (In re Little), No. 05-69113, 2007 WL 2791122,
at *2 (N.D.N.Y. Sept. 24, 2007); People v Oliver, 1 N.Y.2d 152, 157 (1956);
People v. Weaver, 7 Misc. 3d 922, 925 (N.Y. Co. Ct. 2005); People v.
McFarlane, 7 Misc. 3d 1021(A), 2005 WL 1118112, at *2 (N.Y. Sup. Ct.
2005). When the Legislature passes an ameliorative amendment that
reduces the punishment for a particular crime, “‘the law is settled that the
lesser penalty may be meted out in all cases decided after the effective
date of the enactment, even though the underlying act may have been
committed before that date.’” People v. Behlog, 74 N.Y.2d 237, 240 (1989)
(quoting Oliver, 1 N.Y.2d at 160). However, “where a change in the law
removes all punishment for certain conduct[,] the ‘[s]tate may prefer to
retain the right to prosecute for the act previously committed in deliberate
defiance of the law as it then existed.’” Id. at 242 (quoting Oliver, 1 N.Y.2d
at 161 n.3).
The Good Samaritan Law was enacted on July 20, 2011 to
encourage a witness or victim of a drug-related overdose to call 911 or
seek other emergency assistance in order to save the life of an overdose
victim. See Governor’s Approval Mem., Bill Jacket, L. 2011, ch. 154. The
law protects such witnesses or victims from charge or prosecution for drug
possession but does not prohibit their arrest, so that “responding officers
[have] the ability to detain individuals who may or may not be entitled to the
statutory exemption from prosecution . . . in order to investigate all the
facts and circumstances of any criminal conduct and seek guidance from
the appropriate officials.” Id. The law became effective on the sixtieth day
after its enactment, September 18, 2011. See 2011 N.Y. Sess. Laws Ch.
154 § 5 (McKinney). There is nothing in the text or legislative history of the
law that indicates an intent to apply the statute to conduct occurring prior to
its effective date. Notwithstanding County Court’s contrary ruling, (Dkt. No.
17, Attach. 1), as Lefevre’s conduct occurred prior to September 18, 2011,
his prosecution was not barred by the Good Samaritan Law. Accordingly,
any negligence on the part of Rosen did not cause damage to Lefevre.
Rather, Lefevre’s own conduct was the proximate cause of his conviction
and sentence, and his claim for malpractice must be dismissed. See Britt
v. Legal Aid Soc’y, Inc., 95 N.Y.2d 443, 447 (2000) (explaining that a
criminal client must “bear the unique burden to plead and prove that the
client’s conviction was due to the attorney’s actions alone and not due to
some consequence of his guilt”).
Claims of negligence and breach of fiduciary duty that are predicated
on the same factual allegations and seek the same damages as those
supporting a legal malpractice claim, are duplicative and must be
dismissed. See Meador v. Albanese Law Office, No. 5:08-CV-562, 2010
WL 3807163, at *4 (N.D.N.Y. Sept. 23, 2010); Decker v. Nagel Rice LLC,
No. 09 CIV. 9878, 2010 WL 2346608, at *4 (S.D.N.Y. May 28, 2010).
Thus, Lefevre’s claims of negligence and breach of fiduciary duty premised
on Rosen’s failure to assert the Good Samaritan Law as a defense of
Lefevre’s conduct, (Am. Compl. ¶¶ 5-7), must be dismissed. Moreover, to
the extent that Lefevre may allege a separate cause of action premised on
Rosen’s “taking large sums of money under the guise of ‘non-refundable’
retainers without any account therefor,” (Id. ¶ 8), the complaint fails to meet
the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure.
See Zimmerman v. Burge, No. 9:06-CV-0176, 2009 WL 3111429, at *5
(N.D.N.Y. Sept. 24, 2009) (“There must . . . be enough facts alleged to
raise a right to relief above the speculative level to a plausible level, so that
the defendant may know what the claims are and the grounds on which
they rest (in order to shape a defense).”). Accordingly, Lefevre’s claims of
negligence and breach of fiduciary duty are dismissed in their entirety.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Lefevre’s request to file a surreply (Dkt. No. 23) is
DENIED; and it is further
ORDERED that Rosen’s motion to dismiss (Dkt. No. 8) is GRANTED;
and it is further
ORDERED that Lefevre’s amended complaint (Dkt. No. 16) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
December 15, 2015
Albany, New York
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