FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07m2017 05:15 PM
`
`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 40
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`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
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`
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`
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`RfiCfiIVfiD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`
`
`Supreme Court of the State of New York
`County of Nassau
`
`
`YOSSEF KAHLON a/k/a JOSSEF KAHLON and
`
`ATLAS SOLAR HOLDINGS LLC,
`
`Plaintiffs,
`
`Index N0.: 607456/2016
`
`-against-
`
`NOTICE OF APPEAL
`
`MICHAEL V. DeSANTIS, ESQ. and KAUFMAN
`DOLOWICH VOLUCK LLP
`
`Defendants.
`
`
`PLEASE TAKE NOTICE that Plaintiffs Yossef Kahlon a/k/a Jossef Kahlon and Atlas
`
`Solar Holdings LLC hereby appeal to the Appellate Division of the Supreme Court of the State
`
`of New York, Second Judicial Department, from:
`
`i) the Short Form Order of the Honorable
`
`Timothy S. Driscoll, Justice of the Supreme Court of the State of New York, County of Nassau,
`
`dated June 12, 2017 and entered on June 15, 2017, a copy of which is annexed hereto, which
`
`granted Defendants Michael V. DeSantis, Esq. and Kaufman Dolowich Voluck LLP’s Motion to
`
`Dismiss Plaintiffs’ Verified Complaint; (ii) the Judgment of the Office of the County Clerk for
`
`the County of Nassau, dated June 20, 2017 and entered on June 20, 2017, a copy of which is
`
`annexed hereto, which dismissed Plaintiffs’ Verified Complaint and awarded costs to Defendants
`
`Michael V. DeSantis, Esq. and Kaufman Dolowich Voluck LLP in the amount of $340.00; and
`
`from each and every part of the Short Form Order and Judgment and from the whole thereof.
`
`lof 32
`1 of 32
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`

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`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07.112017 05:15 PM
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`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 40
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`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
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`
`
`RfiCfiIVfiD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
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`
`
`Dated: July 13, 2017
`
`Great Neck, New York
`
`The Law Fir
`
`of Elias C. Sc Iwartz PLLC
`
`By: Keri A. Joeckel
`Attorneys for Plaintifl
`YossefKahlon a/k/a JossefKahlon
`and Atlas Solar Holdings LLC
`343 Great Neck Road
`
`Great Neck, New York 1 1021
`
`(516) 487-0175
`
`To:
`
`L’Abbate, Balkan, Colavita & Contini, LLP
`Attorneys for Defendants
`Michael V. DeSantis and
`
`Kaufman Dolowich Voluck LLP
`1001 Franklin Avenue
`
`Garden City, New York 11530
`(516) 394-8844
`
`Clerk of the Supreme Court of the State of New York
`County of Nassau
`240 Old Country Road
`Mineola, New York 11501
`
`20f 32
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`

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`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07m2017 05:15 PM
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`NYSCEF DOC. NO.
`40
`NYSCEF DOC. NO. 40
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`INDEX NO. 607456/2016
`INDEX NO. 607456/2016
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`
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`
`
`
`
`RnCfiIVfiD
`\iYSCEF:
`07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`$121th of $1an Lurk
`finnremc (llunrt of the
`fippzllate Elfiifiieiuu-- fitcnnh Euhtcial Eupartn’tent
`
`Form A - Request for Appellate Division Intervention - Civil
`See § 670.3 of the rules of this court for directions on the use of this form (22 NYCRR 670.3).
`
`Case Title: Set forth the title of the case as it appears on the summons, notice. of petition or
`order to show cause by which the matter was or is to be commenced, or as amended.
`
`YOSSEF KAHLON a/k/a JOSSEF KAHLON and
`ATLAS SOLAR HOLDINGS LLC
`
`Plaintiffs,
`
`-against-
`
`MICHAEL V. DeSANTIS, ESQ. and
`KAUFMAN DOLOWICH VOLUCK LLP,
`
`Defendants.
`
`Dale Notice of Appeal Filed
`
`Eager-coiI-rt.;p‘r Original-”Instance;
`_
`
`_
`"'_ ----:_"'w‘1_;;.'
`' llafe' DwismnI
`
`Case Type
`RCivil Action
`El CPLR article 75 Arbitration
`
`D CPLR article 78 Proceeding
`
`Cl Habeas Corpus Proceeding
`
`Filing Type
`
`E Appeal
`Cl Original Proceeding
`
`CI Transferred Proceeding
`Cl CPLR 5704 Review
`
`Nature of Suit: Check”91to five ofthe following categories which best reflect the nature of the case.
`“12’“. é.‘
`" V '
`-T."-"VI_
`Ali'-bfldmmisrrenvsRowew‘” ’.--'
`‘
`'
`
`C11
`Freedom of Information Law Cl 1 Adoption
`D 1 Discipline
`Assault, Battery, False
`a 1
`1:] 2 Human Rights
`Cl 2 Attorney's Fees
`CI 2
`Jail Time Calculation
`Imprisonment
`Cl 3 Licenses
`D 3 Children — Support
`Ci 3 Parole
`E] 2 Conversion
`
`Public Employment
`[:1 4
`a 5 Social Services
`
`Cl 4 Children - Custody/Visitation
`D 5 Children - Terminate Parent-
`
`Cl 4 Other
`
`Cl 3 Defamation
`Cl 4 Fraud
`
`0 5 Other
`
`al Rights
`Cl 6 Children - Abuse/Neglect
`
`
`..
`_
`_
`_
`_
`'i .1 D 5
`D 1 Condemnation
`
`Intentional lnfliction of
`Emotional Distress
`
`Interference with Contract
`D 6
`Cl 7 Malicious Prosecution/
`Abuse of Process
`
`K 8 Malpractice
`Cl 9 Negligence
`CI 10 Nuisance
`D 11 Products Liability
`
`Cl 12 Strict Liability
`L] 13 Trespass and/or Waste
`Q 14 Other
`
`E] Special Proceeding Other
`
`
`
`
`__
`:fiifisfi Rflefififisfifios: El 7 Children - JD/PINS
`
`a 1
`Partnership/Joint Venture
`D 8 Equitable Distribution
`C] 2 Business
`U 9 Exclusive Occupancy of
`
`El 2 Determine Title
`D 3 Easements
`CI 4 Environmental
`
`[1 3 Religious
`a 4 Not.f0r-Pr0fit
`a 5 Other
`
`
`
`_
`_
`__
`_
`[1 1 Brokerage
`3 2 Commercial Paper
`Cl 3 Construction
`
`Residence
`D 10 Expert's Fees
`Cl 11 Maintenance/Alimony
`Cl 12 Marital Status
`
`CI 13 Paternity
`CI 14 Spousal Support
`C] 15 Other
`
`D 5 Liens
`Cl 6 Mortgages
`Cl 7 Partition
`Cl 8 Rent
`
`D 9 Taxation
`Cl 10 Zoning
`U 11 Other
`
`
`
`U 4 Employment
`Cl 5
`Insurance
`a 6 Real Property
`a 7 Sales
`a 3 Secured
`
`$4 9 Other
`
`
`E. :MI'seeilefrreair'st-r ""
`L1]
`1 Constructive Trust
`Cl 2 Debtor & Creditor
`D 3 Declaratory Judgment
`D 4 Election Law
`
`.
`‘H. Statutory
`Cl
`1 City of Mount Vernon
`Charter §§ 120, 127-f, or
`129
`El 2 Eminent Domain Proced-
`
`'
`
`.L Wills & Estate-3‘ '
`L]
`1 Accounting
`L1 2 Diem-wary
`U 3 PrnhrneiAdminislration
`D 4 Trusts
`
`Ci 5 Notice of Claim
`Cl 6 Other
`
`ure Law § 207
`D 3 General Municipal Law
`§ 712
`
`D 5 Other
`
`U 4 Labor Law § 220
`D 5 Public Service Law §§ 128
`or 170
`.
`a e Other
`
`Form A - RADI - Civil
`
`30f 32
`3 of 32
`
`
`
`m
`§
`(8;
`;
`
`

`

`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07m2017 05:15 PM
`
`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 40
`
`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
`
`
`
`
`
`RfiCfiIVfiD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`
`
`Appeal
`
`Paper Appealed From (check one only):
`C) Amended Decree
`El Determination
`
`D Order
`
`0 Resettled Order
`
`C] Amended Judgment
`CI Amended Order
`C] Decision
`El Decree
`
`E Order & Judgment
`D Finding
`El Partial Decree
`CI
`lnterlocutory Decree
`Cl Resettled Decree
`Cl
`lnterlocutory Judgment
`
`C] Judgment D Flesettled Judgment
`
`El Ruling
`D Other (specify):
`
`Court: Supreme _ CountVI Nassau
`
`
`Dated: June 12, 2017 /June 20, 2017
`Entered: June 15, 2017 /June 20,2017
`
`Judge (name in full): Hon. Timothy S. Driscoll
`Index N08 60?456!2016
`
`lnterlocutory
`E Final
`Cl Post-Final
`
`Stage: Cl
`raw,
`.
`.
`
`
`
`Trial: El Yes E No
`
`If Yes: Cl Jury CI Non-Jury
`
`.-
`
`' iannnerfacted Appeal!" "
`
`Are any unperfected appeals pending in this case? D Yes S No.
`covered by the annexed notice of appeal with the prior appeals?
`Number(s) of any prior, pending, unperfected appeals:
`
`If yes, do you intend to perfect the appeal or appeals
`Cl Yes D No. Set forth the Appellate Division Cause
`
`Original Proceeding
`Date Filed:
`
`Statute authorizing commencement of proceeding in the Appellate Division:
`
`Proceeding Transferred Pursuant to CPLR 7804(9)
`
`Court:
`
`County: Judge (name in full):
`
`Order of Transfer Date:
`
`Court:
`
`Judge (name in full):
`
`County:
`
`Dated:
`
`CPLR 5704 Review of Ex Parte Order
`
`Description of Appeal, Proceeding or Application and Statement of issues
`
`If the appeal is from an order, specify the relief requested
`If an appeal, briefly describe the paper appealed from.
`Description:
`and whether the motion was granted or denied.
`If an original proceeding commenced in this court or transferred pursuant to
`CPLR 7804(9), briefly describe the object of the proceeding.
`If an application under CPLR 5704, briefly describe the nature of
`the ex parte order to be reviewed.
`
`Plaintiffs Yossef Kahlon a/k/a Jossef Kahlon and Atlas Solar Holdings, LLC appeal from the Short Form Order of
`Hon. Timothy S. Driscoll dated June 12, 2017, and entered June 15, 2017, which granted Defendants Michael V.
`DeSantis, Esq. and Kaufman Dolowich Voluck LLP's Motion to Dismiss Plaintiffs' Verified Complaint and from the
`Judgment dated and entered June 20, 2017, which dismissed Plaintiffs' Verified Complaint and awarded costs to
`DefendantsMichael V. DeSantis, Esq. and Kaufman Dolowich Voluck LLP in the amount of $340.00..
`
`Amount:
`Issues:
`
`If an appeal is from a money judgment, specify the amount awarded.
`Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review.
`
`Whether the Court below erred in granting Defendants' Motion to Dismiss Plaintiffs' Verified Complaint.
`
`Whether the Court below erred in granting a Judgment in favor of Defendants dismissing Plaintiffs' Verified
`Complaint and awarding Defendants a Bill of Costs in the amount of $340.00.
`
`
`
`40f 32
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`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07m2017 05:15 PM
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`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 40
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`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
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`
`
`
`
`thtlvtD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
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`
`
`Issues Continued:
`
`
`
`
`
`
`
`50f 32
`5 of 32
`
`Party Information
`in the name of each party to the action or proceeding, one
`Examples of a party's original status include: plaintiff, defendant,
`Fill
`Instructions:
`petitioner,
`If this form is to be filed for an appeal, indicate the status of the
`respondent,
`claimant, defendant
`third~party plaintiff,
`third-party
`name per line.
`party in the court of original instance and his, her, or its status in this court, if defendant, and interv'enon
`Exen'iples of a party's Appellate Division status
`any.
`If this form is to be filed for a proceeding commenced in this court, fill in
`include:
`appellant,
`respondent,
`appellant-respondent,
`respondent-appellant,
`
`only the party's name and his, her, or its status in this court.
`petitioner, and intervencr.
`Aaaanata atvtatan Status
`_ Ottatnat atatua
`Appellant
`- Yossef Kahlon a/k/a Jossef Kahlon
`Plaintiff
`
`Plaintiff
`Appellant
`
`Defendant
`
`Res oondent
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07312017 05:15 PM
`
`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 40
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`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
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`
`
`
`
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`RfiCfiIVfiD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`
`
`Telephone N05 516-487-0175
`_ Zip: 11021
`State: N_Y
`City: Great Neck
`
`Attorney Type:
`El Assigned
`El Government
`C] Pro Se
`El Pro Hac Vice
`a Retained
`imlzll'lllll
`
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`
`
`
`Attorney Information
`in the names of the attorneys or firms of attorneys for the
`provided.
`Fill
`Instructions:
`
`
`the box
`that a litigant represents herself or himself,
`In the event
`If this form is to be filed with the notice of petition or order
`respective parties.
`
`
`
`
`to show cause by which a special proceeding is to be commenced in the marked "Pro Se" must be checked and the appropriate information for that
`Appellate Division, only the name of the attorney for the petitioner need be
`litigant must be supplied in the spaces provided.
`
`
`
`
`Attorney/Firm Name: The Law Firm of Elias C. Schwartz, PLLg _.._._
`__
`Address: 343 Great Neck Road
`
`
`
`
`Attorney/Firm Name: L_'A_bbate, Balkan, Colavita & ContiniLLlTP
`
`
`
`
`Address: 100__1_F_rank|in Avenue
`City: Garden City
`State: NY
`Zip: 11530
`Telephone No.‘ 516-294-8844
`
`
`
`
`Attorney Type:
`CI Assigned
`Ci Government
`0 Pro Se
`Cl Pro Hac Vice
`
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
` Attorney/Firm Name:
`
`
`Address.
`
`
`
`City: Telephone N0.: State: Zip:
`
`
`
`
`Cl Pro Hac Vice
`Attorney Type:
`D Assigned
`D Government
`CI Retained
`El Pro Se
`
`
`
`
`
`Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`
`Attorney/Firm Name:
`Address:
`
`
`
`
`
`
`City:
`State:
`Zip:
`Telephone N0.:
`
`E] Retained
`Attorney Type:
`El Assigned
`Ci Government
`El Pro Se
`Ci Pro Hac Vice
`
`
`
`
`
`
`Attorney/Firm Name:
`
`Telephone N0.:
`
`Cl Pro Hac Vice
`Attorney Type:
`El Retained
`D Assigned
`0 Government
`D Pro Se
`
`Party or Parties Represented (set forth party numberisi from table above or from Form C):
`
`
`Attorney/Firm Name:
`
`Address:
`
`
`
`City:
`
`
`Zip:State: Telephone N0.:
`
`
`C] Pro Hac Vice
`
`
`Attorney Type:
`C] Retained
`CI Assigned
`El Government
`CI Pro Se
`
` Party or Parties Represented (set forth party numberls] from table above or from Form C):
`
`I
`Attorney Information
`
`
`
`
`
`E Retained
`
`Party or Parties Represented (set forth party numberlsi from table above or from Form C):
`
`City:
`
`State:
`
`Zip:
`
`
`Additional Party and Attorney informationForms (Form. C]. {Al-- the ndt‘ifie of appeal or order granting lee'v.
`-_ti:i appeal(Si a
`
`cepy of the paper or papers from which the appeal or appeals covered in‘ the notice pf appeal or order grantlnp leaye toappeal
`
`is or are taken, and (5] a. copy- (if the deciSio'n or decisions of the ccit'Irt of original instance; if' any.
`
`60f 32
`6 of 32
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`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`
`NYSCEF DOC. NO. 40
`NYSCEF DOC. NO. 36
`
`
`INDEX NO. 607456/2016
`INDEX NO. 607456/2016
`
`
`
`
`
`R«.C «.Immmsm 7816611362 8 l 7
`RECEIVED NYSCEF: 07/13/2017
`RECEIVED NYSCEF: 06/16/2017
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`____________________________________________________________________X
`
`YOSSEF KAHLON a/k/a JOSSEF KAHLON and
`
`ATLAS SOLAR HOLDINGS LLC,
`
`Index No. 607456/2016
`
`Plaintiffs,
`
`NOTICE OF ENTRY
`
`MICHAEL V. DeSANTIS, ESQ. and KAUFMAN
`DOLOWICH VOLUCK LLP,
`
`Defendants.
`
`_______________________________________________________________________ X
`
`PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order dated
`
`June 12, 2017 and duly entered on June 15, 2017, in the Office of the Clerk of the within named
`
`Court.
`
`Dated: Garden City, New York
`June 16, 2017
`
`Yours, etc.,
`
`L’ABBATE, BALKAN, COLAVITA
`& CONTINI, L.L.P.
`
`By:
`
`'7/71/flf/L $92]ka
`
`Meredith D. Belkin
`
`Attorneys for Defendants
`1001 Franklin Avenue
`
`Garden City, NY 11530
`(516) 294-8844
`
`TO:
`
`THE LAW FIRM OF ELIAS C.
`
`SCHWARTZ, PLLC
`Jennifer J. Bock, Esq.
`Attorneys for Plaintiffs
`343 Great Neck Road
`
`Great Neck, NY 1 1021
`
`(516) 487-0175
`
`[4538675/l]
`
`lof19
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`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`FILED: NASSAU COUNTY CLERK 07312017 05:15 PM
`NYSCEF DOC. NO. 40
`NXIEEEE -fls§iflu COUNTY CLERK 0671672017 10:13 AM]
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`
`
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` NYC: .1. n n E
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`{FILED: NASSAU COUNTY CLERK 06215201? 03:20 PM]
`NYSCEF DOC. NO. 35
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`
`INDEX NO. 607456/2016
`INDEX NO- 607456/2016
`
`
`
`
`RECEIVED NYSCEF: 07/13/2017
`R*-C*-WNDENYRGEF60WW@17
`RECEIVED NYSCEF: 06/16/2017
`INDEX NO- 607456/2016 '
`RECEIVED NEEEUWS/2017
`
`SUPREME COURT-STATE OF NEW YORK
`SHORT FORM ORDER
`Present:
`'
`
`HON. TIMOTHY s. DRISCOLL
`
`Justice Supreme Court
`
`------------------------------------------------------------------ x
`
`.
`
`YOSSEF KAHLON a/k/a JOSSEF KAHLON and
`
`TRIAL/[AS PART: 12
`
`ATLAS SOLAR HOLDINGS, LLC,
`
`NASSAU COUNTY
`
`Plaintiffs,
`
`.
`
`-against-
`
`Index No: 607456—16
`Motion Seq. No. 1
`Submission Date: 5/5/17
`
`MICHAEL V. DeSANTIS, ESQ. and
`KAUFMAN DOLOWICH VOLUCK LLP,
`
`Defendants.
`_________________________________________________________ x
`
`Papers Read on this Motion:
`
`Notice of Motion, Affirmation in Support and Exhibits........................... x
`Memorandum of Law in Support........................................................... ....x
`Affirmation in Opposition and Exhibits .....................................
`.......... x
`Memorandum of Law in Opposition........: ..................................................x
`Reply Affirmation and Exhibit ..........................................
`................... x
`Reply Memorandum of Law ......................'..................................... . ............x
`
`This matter is before the court on the motion filed by Defendants Michael V. DeSantis,
`
`Esq. (“DeSantis”) and Kaufman Dolowich Voluck LLP (“KDV”) (“Defendants”) on
`
`December 21 , 2016 and initially submitted on February 3, 2017. By prior Order (“Prior Order”)
`
`dated April 3, 2017, the Court directed that the motion would be the subject of oral argument
`
`before the Court. The Court conducted that oral argument and the motion was submitted on
`
`May 5, 2017. For the reasons set forth below, the Court grants the motion and dismisses the
`
`Verified Complaint.
`
`lof 18
`
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`INDEX NO. 607456/2016
`FILED: NASSAU COUNTY CLERK 07/13/2017 05:15 PM
`INDEX NO- 607456/2016
`FILED: NASSAU COUNTY CLERK 07m2017 05:15 PM
`
`
`
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`
`RECEIVED NYSCEF: 07/13/2017
`NYSCEF DOC. NO. 40
`Rr-Cr-IWDENYEOEFGO‘WWN
`NsmmcNines-:0
`COUNTY CLERK 0611:3201? 10:13 AM
`RECEIVED NYSCEF: 06/16/2017
`NYSCEF DOC. NO.
`
`
`[FILED. NAS3SA3U COUNTY CLERK 0621522017 03- 20 PMI INDEX NO- 607456/2016
`
`RECEIVED NYSCEF: 06/15/2017
`
`NYSCEF DOC NO
`
`W2
`
`A. Reheffiought
`
`.
`
`Defendants move for an Order, pursuant to CPLR § 3211(a) (7), dismissing this action.
`
`Plaintiffs Yossef Kahlon a/k/a Jossef Kahlon (“Kahlon”) and Atlas Solar Holdings LLC
`
`(“Atlas”) (“P1aintiffs” or “Kahlon Parties”) oppose the motion.
`
`B. The Parties’ History
`
`As noted in the Prior Order, the Verified Complaint (“Complaint”) (Ex.
`
`1 to Rice Aff, in
`
`Supp.) alleges as follows:
`
`Defendant DeSantis is an attorney admitted to practice law in New York and a member of
`
`KDV, a law firm located in Woodbury, New York. Plaintiffs seek damages for breach of
`
`contract, professional negligence and other causes of action in connection with Defendants’
`
`alleged breach of a joint defense agreement. Plaintiffs allege that when an attorney undertakes to
`
`provide a joint defense, an implied attorney—client relationship is created, and the attorney owes a
`
`duty not only to his own client, but also to all third-party beneficiaries of the joint defense
`
`agreement. The Complaint identifies the following non-parties relevant to this action: Erica T.
`
`Yitzhak (“Yitzhak”), an attorney admitted to practice in New York who practices under the name
`
`of The Law Offices of Erica T. Yitzhak (“Yitzhak Firm”), and Erica T. Yitzhak Esq. P.C.
`
`(“Yitzhak P.C.”), a corporation authorized to conduct business in New York (collectively
`
`“Yitzhak Non-Parties”); Troy Lambe (“Larnbe”),'Sunray Solar Inc. (“Sunray”) and Max
`
`Diversified Inc. (“Max”) (collectively “Sunray Non»Parties”); Michael Botton (“Bottom”), an
`
`attorney in delinquent status admitted to practice in New York who maintains a law office under
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`the name of The Law Office of Michael Botton; and James F. Quinn (“Quinn”), an attorney
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`admitted to practice in New York who maintains a law office under the name of The Law Firm of
`James F. Quinn.
`‘
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`Yitzhak Non-Parties acted as Plaintiffs’ attorney on several occasions pursuant to an
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`agreement between Plaintiffs and Yitzhak Non-Parties. In or about Spring 201 1, Sumay Non-
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`Parties approached Plaintiffs with an offer to invest in solar energy systems (“Systems”) in the
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`State of New Jersey. Sunray Non-Parties sought Atlas’ investment in Systems that would be
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`installed onto the homes of third parties who would receive electricity at a discounted rate and
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`2
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`20f 18
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`3ofl9
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`9 of 32
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`Atlas would be paid on an annual basis. Problems developed between Plaintiffs and Sunray
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`Non-Parties that required legal intervention.
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`Plaintiffs retained Yitzhak Non-Parties to pursue claims against Sunray Non-Parties. On
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`or about June 28, 2012, Yitzhak Non-Parties filed at least two (2) separate UCC liens on Sunray
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`Non-Parties’ assets in New Jersey. On or about September 19, 2012, Yitzhak Non-Parties
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`prepared and serve a letter on Lambe demanding the sum of$l,874,l65.00 in satisfaction of
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`Plaintiffs’ claims, to be paid no later than September 30, 2012.
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`In that letter, Yitzhak Non-
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`Parties advised Lambe that 1) his failure to pay the sum demanded would result in litigation
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`seeking damages for breach of contract, fraud and fraudulent inducement, including treble
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`punitive damages; and 2) the UCC liens had been filed against Lambe’s personal residence and
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`assets, as well as against Sunray and Max.
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`On or about January 30, 2013, Yitzhak Non-Parties prepared and served a letter on NIR
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`Clean Energy Ventures Cerporation, Clean Power Finance and NRG Energy (“January 2013
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`Letter”), alleged potential investors of Sunray Non-Parties, advising those entities of pending
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`litigation against the Sunray Non—Parties and demanding that they refrain from forwarding any
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`payments or transferring any assets involving Sunray Non—Parties. The January 2013 Letter
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`enclosed a copy of a complaint filed in the Supreme Court of the State of New York, County of
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`New York, as well as cepies of the liens recorded as against Sunray Non-Parties. On or about
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`February 12, 2013, Yitzhak Non-Parties prepared and served a letter on Norah and John Forsythe
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`(“Forsythes”) demanding the immediate return of $1 ,368,289.00 paid by Plaintiffs to purchase
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`solar installations. That letter asserted that Plaintiffs entered into that transaction as a result of
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`the fraudulent misrepresentations of the Forsythes. It also advised the Forsythes that if the sum
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`of $1 ,368,289.00 was not paid by February 19, 2013, an action would be commenced seeking
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`damages for fraud. The letter also “threatened” (Comp. at 1] 32) that Plaintiffs would file
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`criminal complaints against the Forsythes with state and federal prosecutors.
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`In connection with an action commenced in the Supreme Court, Yitzhak Non—Parties
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`acted as the Kahlon l’arties’ attorneys beginning in or about June 2012 through in or about
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`January 2016. On or about October 22, 2012, Yitzhak Non-Parties filed and served a Summons
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`with Notice on Sunray Non—Parties in an action titled Atlas Solar Holdings LLC v. Troy Lambe,
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`3 of 18
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`4 of 19
`10 of 32
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`Sunray Solar Inc. and Max Diversified Inc. in the Supreme Court of the State of New York,
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`County of New York, under Index Number 157465-12 (“Sunray State Litigation”).
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`In the Sunray
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`State Litigation, Plaintiffs sought damages in the amount of $1,847,165.00 together with punitive
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`damages exceeding $5 million. The Summons with Notice 1) directed Sunray Non-Parties to
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`answer the “Complaint” at the “satellite location” of the Supreme Court of New York County
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`(Comp. at 11 35); 2) stated that venue was based on Atlas’ location on Fifth Avenue in New York
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`City; and 3) stated that the breach of contract claim arose under a Loan and Profit Participation
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`Agreement dated July 20, 201 l, to which Sunray Non-Parties were not parties.
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`After receiving a Notice of Appearance from Lambe and Sunray, pro se, rather than
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`advising Lambe that he could not appear on behalf of the corporation, on or about January 29,
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`2013, Yitzhak Non-Parties served an unverified complaint as against Sunray Non-Parties
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`containing causes of action alleging breach of contract and fraud. The unverified complaint
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`alleged that 1) Sunray Non-Parties were New Jersey residents; 2) Atlas had taken a loan in the
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`amount of $159,600.00 with an entity called Cove Neck; 3) Cove Neck obtained title to two
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`projects funded through the loan; 4) Sunray and Lambe guaranteed prompt installation of the two
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`projects and the proceeds from these installations were due to Atlas in the sum of $1,875,165.00;
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`and 5) UCC liens had been filed as against Sunray Non-Parties. As the unverified complaint
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`allegedly contained “an incomplete set of inaccurate facts” (Comp. at 11 44), Yitzhak Non-Parties
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`served, but did not file, a verified amended complaint with accurate facts. The verified amended
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`complaint (“Sunray Amended Complaint”) included allegatiOns regarding a choice of law
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`provisions in applicable agreements providing that the matter would be governed by the laws of
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`New York and also alleged that UCC liens had been filed as against Sunray Non-Parties.
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`In response to the Sunray Amended Complaint, on or about March 6, 2013, Sunray Non-
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`Parties, through counsel, moved for summary judgment based on lack of personal jurisdiction,
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`arguing that the Sunray Amended Complaint failed to state any basis for personal jurisdiction
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`over the admitted New Jersey residents, and that Yitzhak Non-Parties had confused a choice of
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`law provision with a choice of venue provision, neither of which conferred jurisdiction over
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`Sunray Non-Parties in a New York court. Sunray Non-Parties also moved to dismiss based on
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`defective service, alleging that Yitzhak Non-Parties failed to timely serve the original unverified
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`4 of 18
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`5 of 19
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`complaint within twenty (20) days of Lambe and Sunray’s Notice of Appearance and Demand for
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`Complaint. Sunray Non-Parties contended that, although Yitzhak Non-Parties had filed an
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`Affirmation of Service affirming that the complaint was served on December 18, 2012, the
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`envelope containing that document was postmarked February 5, 2013. “T[o] rectify their
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`mistakes” (Comp. at fil S3), Yitzhak Non-Parties opposed the application and submitted a cross
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`motion seeking permission to file the Sunray Amended Complaint, which had already been
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`served.
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`By decision dated July 8, 2013, the judge presiding over the Sunray State Litigation
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`(“New Jersey Court”) dismissed the complaint for lack of jurisdiction and denied the motion
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`seeking permission to file the Sunray Amended Complaint. In so ruling, the New Jersey Court
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`noted that 1) the complaint failed to allege that any acts or business dealings took place in New
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`York, and that the only pertinent allegation was Atlas’ New York address; and 2) the choice of
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`law clause, standing alone, did not confer personal jurisdiction over Sunray Non—Parties. The
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`New Jersey Court concluded that Yitzhak Non-Parties had failed to meet their burden of proof on
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`the issue of personal jurisdiction and dismissed the Sunray State Litigation without ruling on
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`whether the papers were timely served.
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`On or about May 24, 2013, Sum'ay Non—Parties filed a complaint against the Kahlon
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`Parties and Yitzhak Non-Parties, in the United States District Court for the Eastern District of
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`New York, Index Number 13—CV-03 126 (“Federal Litigation”). In the Federal Litigation,
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`Sunray-Non-Parties asserted causes of action including tortious interference with economic
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`advantage, malicious use/abuse of process and unauthorized filing of UCC Financing Statements.
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`On or about May 24, 2014, the Kahlon Parties timely notified Continental Casualty Company
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`(“Continental”), the professional malpractice insurance carrier of Yitzhak Non-Parties, of the
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`Federal Litigation and requested defense and indemnity under the applicable policy. Continental
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`denied coverage to the Kahlon Parties and refused to defend them in the Federal Litigation. The
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`Kahlon Parties thereafter retained Botton to defend them. Yatzhak Non-Parties were provided
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`with carrier counsel, under their malpractice policy, to defend them in the Federal Litigation.
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`On or about July 18, 2013, the Kahlon Parties filed their answer with counterclaims in the
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`Sunray Federal Litigation alleging inter alia failure to register with the New York Attorney
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`5 of 18
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`6of 19
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`General for exemption from New York Business Law Article 23—A, violation of New Jersey
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`Securities Law by failing to register as a broker dealer and misappropriation/conversion. The
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`counterclaims asserted the same claims that had been dismissed in the Sunray State Litigation.
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`On or about August 27, 2013, Sunray Non-Parties filed an amended complaint against the
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`Kahlon Parties and Yitzhak Non—Parties which contained the same causes of action contained in
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`the initial complaint (see Comp. atfil 58). The first, second, third, fourth, eleventh and twelfth
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`causes of action in the amended complaint were asserted against the Kahlon Parties and Yitzhak
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`Non-Parties, jointly and severally. The fifth, sixth, seventh and eighth causes of action were
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`asserted solely against the Yitzhak Non-Parties. The ninth and tenth causes of action were
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`asserted solely against the Kahlon Parties. The first, second, third, fourth and eleventh causes of
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`action all stemmed from the January 2013 Letter. On or about September 10, 2013, the Kahlon
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`Parties filed an answer to the amended complaint with amended counterclaims that contained the
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`same counterclaims initially asserted, as well as an additional counterclaim alleging negligence.
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`“[R]ecognizing that they held a united interest” (Comp. at 1] 67), the Kahlon Parties and
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`Yitzhak Non-Parties, through counsel, agreed that their defense would be handled jointly and,
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`therefore, the Kahlon Parties did not assert cross claims against Yitzhak Non-Parties. On or
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`about September 23, 2013, Sunray Non-Parties filed an answer to the Kahlon Parties’ amended
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`counterclaims. On or about December 16, 2013, Yitzhak Non-Parties filed a motion to dismiss
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`for failure to state a claim and on or about September 23, 2014, the court in the Sunray Federal
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`Litigation (“Federal Court”) denied that motion. On or about March 11, 2015, Yitzhak Non-
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`Parties filed an answer to the amended complaint. On or about October 19, 2015, Yitzhak Non-
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`Parties filed a motion for summaryjudgment.
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`On or about December 23, 2015, Botton and DeSantis, among others, participated in a
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`telephone conference call and entered into an “oral joint defense agreement” (Comp. at '[I 74)
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`pursuant to which it was agreed that at the time of the trial (“Trial”) of the Federal Litigation,
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`DeSantis would be solely responsible for the defense of the claims asserted by Sunray Non-
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`Parties as against Yitzhak Non-Parties and Kahlon Parties in the Federal Litigation, and Botton
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`would be solely responsible for the prosecution of the Kahlon Parties’ counterclaims in the
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`Federal Litigation. On or about January 12, 2016, “in compliance with the rules of the Court
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`60f 18
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`7 of
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`l9
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`13 of 32
`13 of 32
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`which discourage a duplication of efforts” (Comp. at 1] 75), Botton and DeSantis, among others,
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`participated in a telephone conference call during .which they orally agreed on the division of
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`labor at the Trial, specifically that only DeSantis would present the defense of the claims
`interposed by Sunray Non-Parties against Yitzhak Non-Parties and the Kahlon Parties in the
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`Federal Litigation, and only Botton would present the prosecution of the Kahlon Parties’
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`counterclaims in the Federal Litigation.
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`On or about January 14, 2016, the court denied Yitzhak Non-Parties’ motion for summary
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`judgment, except as to Sunray Non-Parties’ claims for negligence and malpractice. On or about
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`January 20, 2016 through February 1, 2016, the Trial was held. During the Trial, pursuant to the
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`joint defense agreement, only DeSantis presented the defense of the claims interposed by Sunray
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`Non-Parties as against Yitzhak Non-Parties and Kahlon Parties, and only Botton and Quinn, trial
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`counsel, presented the prosecution of the Kahlon Parties’ counterclaims. Despite the joint
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`defense agreement, on or about January 29, 20