On Thursday, a divided 3-2 panel of the Appellate Division, First Department reversed Manhattan Supreme Court Justice Shirley Kornreich and granted Greenberg Traurig it’s request to have a case against it dismissed. According to the majority, the case was filed about three months and ten days beyond the statutory limitation date of three years, and the delay in filing the case, was sufficient to deny the pleas of the plaintiff who alleged deceit by Greenberg Traurig and one of its partners.
In the instant case, plaintiff James Melcher had alleged that law firm Greenberg Traurig and partner Leslie Corwin had lied about the authenticity of a key document, which key document was accidentally (and conveniently) set on fire before things could be ascertained.
The plaintiff had originally sued his former employer, Apollo Management, in a breach of contract case, over a share of profits he claimed. In that dispute, Corwin continues to represent Apollo.
According to Melcher, in 2004, Corwin told him and his lawyer Jeffrey Januzzo that Melcher’s case against Apollo had no merit because an amendment to Apollo’s operating agreement had reduced his profit share significantly.
Corwin also told Melcher that he had spoken with Jack Governale, the lawyer who had allegedly drafted the amendment.
Being stunned by such information, Melcher requested a copy of the amendment to have it analyzed by an ink expert and determine its authenticity.
However, as it was learned much later, within days of Melcher requesting the copy, an Apollo executive had allegedly told Corwin that the executive had set fire to the two-page document while making tea (possibly cooking documents in the kitchen?) and that the top page had been burned and the bottom of the second page singed.
However, Corwin did not disclose this unhappy, but convenient incident to either Melcher or the trial court, according to Melcher’s lawsuit against Greenberg Traurig and Corwin. In March 2004, Melcher’s lawyer, Januzzo, complained that Corwin had engaged in the “concealment of material facts and misleading representations.”
Januzzo maintains that he failed to realize Corwin’s assertions were untrue until Dec. 7, 2005, when Governale, the lawyer who had supposedly drafted the amendment gave his deposition, and submitted that he had no memory or record of such an amendment.
Melcher, ultimately filed his lawsuit against Corwin and Greenberg Traurig on June 25, 2007.
However, the majority of the appeals court held that the limitation started running from the date Melcher’s lawyer had sent the letter in March, 2004, alleging Corwin had engaged in concealment of facts and misleading representations.
So, the case was dismissed upon having been filed beyond three years after limitation started running, according to the majority.
However, in dissent, two judges held that the date of limitation should have started running from the day when, following the deposition of Governale, Melcher and his lawyer realized they had been duped.
Greenberg Traurig issued a statement welcoming the dismissal and stating “allegations in the complaint have no merit.”
Melcher’s lawyer said, “The majority’s rationale was that your time to sue opposing counsel starts running as soon as you even suspect he has committed deceit.”
Dissenting Justice Nelson Roman, joined by Justice Helen Freedman wrote that limitation should have started running from Dec 7. 2005 and not when simple suspicion occurred. It should have started running, “on that date that the realization that plaintiff had been deceived by Corwin occurred.”