Vladimira Koch, a/k/a Vlad’ka Koch, Michal Koch, her son, Europa Docu-Search, Inc., Eurovid, Inc., Eurovid FKK, Helios Natura, Europa Docu-Search, s.r.o, Eurovid FKK, s.r.o., Plaintiffsv.Sheresky, Aronson & Mayefsky LLP, David Aronson, individually, Bragar, Wexler, Eagel & Morgenstern, P.C., Raymond A. Bragar, individually, Ragues & Min, Esqs., Raymond Ragues, individually, D’Agostino & Salvi, LLP, and Frank J. Salvi, individually, Defendants
DECISION AND ORDER Motion sequence nos. 51, 53, 54, 55 and 57 are consolidated for disposition. In motion sequence no. 51, plaintiff Vladimira Koch, a/k/a Vlad’ka Koch (“Koch”) moves for an order, pursuant to CPLR 3126 (3), striking the answer of defendants Ragues & Min, Esqs. (“the Ragues firm”) and Raymond Ragues (“Ragues”) (jointly “the Ragues Defendants”), and directing an adverse inference against the Ragues Defendants; and, pursuant to 22 NYCRR §130-1.1, for an award of sanctions. Defendants Sheresky, Aronson & Mayefsky, LLP and David Aronson (“the Aronson Defendants”) (motion sequence No. 53), the Ragues Defendants (motion sequence No. 54), Bragar, Wexler, Eagel & Morgenstern, P.C., and Raymond A. Bragar (Bragar) (jointly “the Bragar Defendants”) (motion sequence No. 55), and D’Agostino & Salvi, LLP, and Frank J. Salvi (jointly “the Salvi Defendants”) (motion sequence No. 57) move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint asserted against them. Koch opposes defendants’ motions for summary judgment and cross-moves for partial summary judgment in her favor against each defendant.BackgroundIn February 2004, Koch initially retained the Bragar Defendants to represent her in connection with litigation against her former husband, Robert Koch (“RK”), in connection with their jointly owned businesses1 (the Bragar Defendants moving papers, exhibit 1, retainer agreement dated February 10, 2004). After learning that RK had commenced a matrimonial action against Koch (Koch v. Koch, Sup Ct, Westchester County, Index No. 01805/04 ["the Matrimonial Action"]), the Bragar Defendants contacted the Aronson Defendants to assist in the matrimonial aspects of the case (Aronson aff dated 5/2/17). The Aronson Defendants, as co-counsel with the Bragar Defendants, interposed an answer on behalf of Koch (id., exhibit N, answer dated 3/16/04) and filed a motion by order to show cause, requesting (a) restraints as to the disposition of marital assets, and (b) the appointment of a receiver over two companies jointly owned by the parties (the Aronson Defendants’ moving papers, exhibit n, motion dated 4/12/04). An order was issued on July 16, 2004, which, inter alia, directed that a new bank account for the parties’ companies be opened in the Bank of New York (“BNY”), with Koch having sole check signing authority, and that RK instruct the companies’ distributors to pay for their orders by wire transfer to the BNY accounts or to a New York City post office box (id., exhibit p, order dated 7/16/04 ["the July 2004 Order"]). By email communication dated September 30, 2004, Koch terminated the Bragar Defendants and the Aronson Defendants (the Bragar Defendants moving papers, exhibit Q, email from Koch to Bragar dated 9/30/04), and the Ragues Defendants were substituted as counsel (the Aronson Defendants’ moving papers, exhibit S, consent to change attorney dated 11/12/04).In June 2005, RK moved to have Koch held in civil contempt for her failure to comply with the terms of the July 2004 Order, claiming that she, inter alia, directed customers to mail their orders and payments to a post office box in the Czech Republic, and failed to provide monthly accounts of sales (the Bragar Defendants moving papers, exhibit R, order dated 7/14/05 ["the July 2005 Order"]). The court found Koch guilty of contempt, imposed a fee of $5,000 and directed that the management and operation of the companies be transferred to RK, pending the conclusion of the litigation (id.). After the Ragues Defendants filed a notice of appeal regarding the July 2005 Order (id., exhibit Y, notice of appeal dated 9/2//05), and RK moved a second time for civil contempt against Koch, Koch canceled their authority to represent her in the Matrimonial Action (id., exhibit Z, email dated 9/15/05). She subsequently signed a stipulation agreeing to relieve the Ragues Defendants as counsel, indicating that she would be representing herself (id., exhibit E, stipulation dated 9/20/05). As reflected in the judgment of divorce, the Ragues Defendants were relieved as counsel based upon this stipulation (see id., exhibit BB, judgment of divorce dated 2/28/06).Thereafter, while Koch was representing herself, a decision was issued without a hearing, in connection with RK’s second contempt motion holding that Koch failed to comply with the July 2005 Order; the court, inter alia, struck Koch’s answer and scheduled an inquest, that was held on December 22, 2005 (id., exhibits CC and DD, order dated 11/3/05 [the November 2005 Order]), transcript of 12/22/05, respectively). A judgment of divorce on default was entered in March 2006, granting the divorce sought by RK, and awarding him exclusive title to the parties’ businesses, bank accounts, websites and other properties (id., exhibit BB, judgment of divorce dated 2/28/06 ["the Default Judgment"]).Subsequent to RK’s inquest, Koch retained her present counsel to represent her in the Matrimonial Action (the Bragar Defendants moving papers, exhibit U, notice of appearance dated 3/12/07). Koch moved to vacate the Default Judgment and the contempt orders, i.e., the July 2005 and the November 2005 Order, and her application was granted (id., exhibit V, order dated 5/10/17). Koch then interposed an answer with counterclaims (id., exhibit W, answer dated 6/25/07), and moved for summary judgment. Her application was granted without opposition; the court dismissed RK’s complaint for divorce, and granted Koch, inter alia, a divorce, spousal and child support, and damages related to RK’s alleged dissipation of corporate assets during the time the companies were under his control (id., exhibit X and Y, orders dated 3/19/08 and 10/23/08 [the October 2008 Order], respectively).Koch, her son, Michal Koch, and the Companies commenced the instant action asserting primarily legal malpractice claims against the Bragar Defendants, the Aronson Defendants, the Ragues Defendants, and the Salvi Defendants, RK’s former counsel in the Matrimonial Action. By decision and order dated July 9, 2009, the court dismissed all plaintiffs from the action except Koch, and dismissed all causes of action asserted in the Amended Complaint against the Aronson Defendants, except for the legal malpractice claims (the fourth, fifth, sixth, eighth and sixteenth causes of action), and against the Salvi Defendants, except for the Judiciary Law §487 claim (the seventeenth cause of action). By decision and order dated May, 17, 2010, the court dismissed all causes of actions against the Bragar Defendants, except for those in fraud (first), and legal malpractice (fourth, fifth, sixth, eighth and sixteenth causes of action). As a result of Koch’s failure to appear for her court ordered deposition in accordance with this court’s orders dated March 20, 2014 and December 15, 2015, Koch has been precluded from testifying at trial (the Aronson Defendant’s moving papers, exhibit G, order dated 12/15/15). A note of issue was filed on June 28, 2016.In motion sequence no. 51, Koch moves for an order, pursuant to CPLR 3126 (3), striking the answer of the Ragues Defendants based upon their alleged failure to produce Isabel Mendez (“Mendez”), their former employee, for a deposition, or to provide contact information. Koch’s counsel maintains that, the Ragues Defendants knew that Mendez was an important witness for Koch, and that they promised to produce Mendez or her contact information several times during discovery, but failed to do so. He states that, Koch’s prior application to direct the production of Mendez for a deposition, or alternatively, her contact information, was denied in March 2017, without prejudice, upon the service of a notice of admit on the Ragues Defendants, which he served on March 29, 2017. Counsel contends that the Ragues Defendants failed to admit the requests made therein relating to Mendez, caused Mendez to be unavailable to testify and give evidence, and destroyed Mendez’ contact information, thus resulting in spoliation of evidence. He, thus, seeks that the Ragues Defendant’s answer be stricken.The Ragues Defendants oppose Koch’s motion, arguing that there was never a formal demand from her for Mendez’ contact information. Their counsel maintains, inter alia, that Koch became aware at Ragues’ deposition in December 2010 that Mendez had retired from their firm, and, therefore, the firm had no ability to direct her testimony. Counsel alleges that no follow-up request for this information was made by Koch until Ragues’ continued deposition on May 18, 2016, more than five years later; that he informed Koch’s counsel, after a court appearance in June 2016, that Ragues could not find any contact information for Mendez. Counsel denies that the Ragues Defendants engaged in spoliation of Mendez’ contact information or caused her to be unavailable as a witness.As for the notice to admit, counsel avers that the court suggested that Koch serve a notice to admit with respect to documents that Mendez could authenticate, but that instead the notice served sought the Ragues Defendants’ admission that approximately 12,000 pages of documents produced during discovery were maintained by the firm, without identifying any particular document that was purportedly signed or sent by Mendez. He further alleges that the notice improperly sought the Ragues Defendants’ admissions as to Mendez’ knowledge of certain purported facts that are in dispute and contrary to the evidence in the existing record. Additionally, he argues that Koch has not offered any proof of material evidence that Mendez, as Ragues’ former receptionist/secretary, could present in this case, or any particular document that may be excluded at trial by virtue of the inability to depose her.Pursuant to CPLR 3126 (3), states, in relevant part, that “if any party…refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them…an order striking pleadings or parts thereof…”. “It is well settled that the drastic remedy of striking a party’s pleading pursuant to CPLR 3126 for failure to comply with a discovery order…is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith” (Henderson-Jones v. City of New York, 87 AD3d 498, 504 [1st Dept 2011] [internal quotation marks and citation omitted]). Additionally, “to impose a sanction for spoliation of evidence, it must be established that the individual to be sanctioned was responsible for the loss or destruction of evidence crucial to the establishment of a claim or defense at a time that such evidence might be needed for future litigation” (Haviv v. Bellovin, 39 AD3d 708, 709 [2d Dept 2007]).Here, Koch’s counsel fails to demonstrate that the Ragues Defendants refused to obey an order for disclosure, willfully failed to disclose Mendez’ contact information, or that Mendez’ deposition is crucial to the establishment of her claims. It is undisputed that, during Ragues’ deposition in 2010, Koch was informed that Mendez had retired from her employment with the Ragues Defendants and was no longer under their control (the Ragues Defendant’s opposing papers, exhibit A, tr of 12/15/10 at 771). The record further reflects that, although a request was made at Ragues’ deposition for the production of Mendez’ last known address (id.), a request was not made again until Ragues’ continued deposition in May 2016, more than five years later (id., exhibit C, tr of 5/18/16 at 1161), and then, a month later, on June 22, 2016, at the parties’ court appearance (Koch’s moving papers, exhibit C, tr dated 6/22/16 at 41). While Koch’s counsel alleges that the court transcript taken at the June 2016 court appearance reflects that there was a court ordered stipulation requiring the production of Mendez or her contact information (Koch’s moving papers, exhibit C, tr dated 6/22/16 at 41), a review of the transcript fails to disclose the existence of such stipulation or any directive by the court relating to Mendez, instead, it reflects the agreement of the Ragues Defendants’ counsel, after hearing Koch’s counsel request for Mendez’ last known address, that he would produce any records his clients had relating thereto (id.). Koch’s counsel acknowledges the receipt of correspondence from the Ragues Defendants’ counsel approximately a month later, wherein he stated that he “was advised that [his] client did not find any information concerning [Mendez] in its files” (the Ragues Defendants’ counsel’s affirmation in opposition, exhibit E, correspondence dated 7/29/16).As noted by the Ragues defendants’ counsel, Koch’s motion to compel Mendez’ deposition or production of her contact information, made in September 2016, was based on Koch’s claim, inter alia, that Mendez’ deposition was required in the instant legal malpractice case, because “there were certain documents which only [she] can identify because she signed them or sent them” (the Ragues Defendant’s opposing papers, exhibit C, tr dated 3/8/17 at 43). This Court denied her motion without prejudice to renew after the service of a notice to admit with respect to those documents that she claimed only Mendez could identify (tr 3/8/17 at 50-51).It is well settled that “a notice to admit pursuant to CPLR 3123 (a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admissions of fundamental and material issues or ultimate facts that can only be resolved after a full trial” (Meadowbrook-Richman, Inc. v. Cicchiello, 273 AD2d 6, 6 [1st Dept 2000]). As argued by the Ragues Defendants, the notice to admit served did not seek the admission of any particular document that was signed or sent by Mendez, but rather sought that the Ragues Defendants admit that approximately 12,000 pages of documents produced during discovery, identified as Bates numbers Koch 1 through 11971, P1485, P1486, P1495, P1496, were maintained by them as part of Koch’s file (the Ragues Defendants’ opposing papers, exhibit H, notice to admit dated 3/29/17, §§7, 8 ["the Notice"]. In responding to the admission sought by Koch regarding these documents, the Ragues Defendants denied the admission, and stated, inter alia, “the legal file maintained by them was produced in this action as RM 00001 through RM 00097″ (id., exhibit I, the Ragues Defendants’ responses to Koch’s notice to admit dated 4/717, §7), and that the documents referred to in the notice are copies of the documents produced in this action by Koch and the Bragar Defendants (id., §8). Contrary to Koch’s counsel’s argument, their responses were appropriate. The Notice was not intended to require the Ragues Defendant to wade through thousands of documents, but rather to specify those documents that Koch wished to have authenticated.Further, the Notice also sought admissions regarding Mendez’ knowledge of certain purported events, i.e., that the Ragues Defendants never forwarded Koch’s legal file and documents in their possession to Koch’s home address when she requested (the Notice, §10), and that the Ragues Defendants did not explain to Koch her rights with respect to termination of attorney representation in New York (id., §13). Inasmuch as these are contested issues and ultimate facts in the case, Koch was not entitled to have those issues deemed admitted (Echevarria v. 158th St. Riverside Dr. Hous. Co, Inc., 113 AD3d 500, 502 [1st Dept 2014]).Additionally, as the moving party seeking sanctions based on the spoliation of evidence, Koch is required to “demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind’, and finally, (3) that the destroyed evidence was relevant to the party’s claim or defense” (VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012]). The burden is on the party requesting sanctions to make the requisite showing (see Mohammed v. Command Sec. Corp., 83 AD3d 605, 605 [1st Dept 2011]).Here, Koch fails to meet the requisite burdens. Contrary to Koch’s counsel’s contention, there are no factual allegations in the Amended Complaint that would have placed the Ragues Defendants on notice at the inception of this action that such contact information would be required, or that, at the time of the first request for Mendez’s contact information the Ragues Defendants had her last known address (Ragues testified that he “may have it somewhere” and was willing to provide it if he had it [tr of 12/15/10 at 771]). Further, Koch does not proffer any written request for such information. This Court also notes that Koch did not list Mendez as a witness in her response to the defendants’ demand for names and addresses (id., exhibit B, response dated 8/13/09). The record is devoid of any supplemental or amended response listing Mendez as a witness. Additionally, in response to Koch’s motion to compel in 2016, Ragues alleged that he looked for Mendez’ records and did not find any employment or other files for which to obtain her contact information (the Ragues Defendants’ opposing papers, exhibit F, affidavit dated 10/28/16). He further indicated that he had moved into new offices, since Mendez’ retirement, and did not retain any employment records concerning Mendez (id.).During oral arguments of Koch’s instant motion, her counsel maintained that Mendez’ testimony was necessary for Koch’s claims because Mendez was present during conversations between Koch and Ragues; however, he was unable to provide any factual support for such position (tr held on 9/28/17). While this Court provided counsel with the opportunity to submit a letter identifying an affidavit or sworn pleading by Koch that Mendez was present at any time during conversation between Koch and Ragues with respect to legal representation” (id. at 25-26), in his letter, counsel refers to allegations in the amended complaint that only mention the Ragues Defendants with Koch, without any reference to Mendez (correspondence from Koch’s counsel dated 10/24/17). Further, he made other arguments which were not responsive to this Court’s directive, and, thus, are not considered.Accordingly, in motion sequence no. 51, those branches of Koch’s motion for an order, pursuant to CPLR 3126 (3), striking the answer of the Ragues Defendants and directing an adverse inference against the Ragues Defendants, is denied.In motion sequence no. 51, Koch also moves, pursuant to 22 NYCRR §130-1.1 (a), for Koch’s costs and counsel fees incurred as a result of the Ragues Defendants purported “willful, contumacious and wrongful conduct and spoliation of evidence” (Koch’s counsel’s affirmation dated 4/17/17). “The court, in its discretion, may award to any party or attorney in any civil action or proceeding…costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1). Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1 [c]; see Premier Capital v. Damon Realty Corp., 299 AD2d 158, 158 [1st Dept 2002]). Here, Koch fails to demonstrate that the Ragues Defendants or their attorneys engaged in conduct relating to Mendez’ contact information that can be characterized as frivolous within the meaning of §130-1.1 (c) (Stone Mtn. Holdings, LLC v. Spitzer, 119 AD3d 548, 550 [2d Dept 2014]).In motion sequence nos 53, 54, 55 and 57, defendants respectively move for summary judgment dismissing the claims asserted against them. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists, warranting a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986])The Court shall first address the defendants’ respective summary judgment motions in the order in which they represented Koch in the Matrimonial Action. Since the Bragar Defendants and the Aronson Defendants (“Initial Counsel”) jointly represented Koch at the inception of the Matrimonial Action, their motions shall be considered together.In support of their respective motions, the Initial Counsel argue that summary judgment dismissing the legal malpractice claims asserted against them (fourth, fifth sixth, eighth and sixteenth causes of action) should be granted in their favor. To establish legal malpractice, plaintiff “must establish that [defendants] failed to use the ordinary reasonable skill and knowledge commonly possessed by [members] of the legal profession and that the…breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015] [internal quotation marks and citation omitted]). In moving for summary judgment dismissing legal malpractice claims, defendant must establish that the plaintiff would be unable to prove at least one of these essential elements of her claim (see, Aur v. Manhattan Greenpoint Ltd., 132 AD3d 595, 595 [1st Dept 2015]; see also Sabalza v. Salgado, 85 AD3d 436, 437 [1st Dept 2011]).Initial Counsel first argue that since Koch has been precluded from offering testimony in support of her claims, she may not oppose summary judgment by offering testimony through affidavit or otherwise. They further note that, in her fourth cause of action, she alleges that these defendants negligently misrepresented to Koch that she should submit to jurisdiction in New York (amended complaint,225); and that they knew or should have known that she was not properly served in the Matrimonial Action, thus depriving the New York court of personal and subject matter jurisdiction (id.,227). The Initial Counsel acknowledge that the Answer interposed on her behalf in the Matrimonial Action did not raise any jurisdictional defenses. They argue, however, that they did not breach any duty with respect to either subject matter or personal jurisdiction because Koch actively sought out legal representation in New York to sue RK for control of the couple’s companies, and that proceeding in the Matrimonial Action resulted in obtaining the result she wanted (Aronson aff dated 5/2/17; Bragar aff dated 5/6/17).Bragar alleges that, in February 2004, Koch, who was conversant in English, contacted Bragar to represent her in New York regarding her commercial claims against Robert Koch, and signed a retainer agreement on February 10, 2004, which reflected that she was retaining the Bragar Defendants with respect to her claims against Robert Koch arising from the parties’ companies and business ventures; and that the retainer did not contemplate any representation in connection with a matrimonial action or for legal services in immigration matters (Bragar’s affirmation 5/6/17; the Bragar Defendants’ moving papers, exhibit L, retainer agreement dated 2/10/04; the Sheresky Defendants’ moving papers, exhibit I, Bragar’s deposition 11/17/10 at 103, 310 ). Bragar further maintains that, after the Bragar Defendants were retained, he learned that RK had commenced the Matrimonial Action; and that he told Koch that the Matrimonial Action would provide an opportunity to obtain the relief that she was seeking without the need to effect service on him, which was a concern (Bragar’s affirmation 5/6/17; the Sheresky Defendants’ moving papers, exhibit I, Bragar’s deposition 11/17/10 at 165-166). The Initial Counsel argue that, with a defendant located in the state of New York, and marital and separate property that was governed by a partnership agreement executed in the State of New York with a “choice of law’ provision calling for the application of New York law, it was well within their reasonable strategic judgment to pursue Koch’s claims in the Matrimonial Action,Initial Counsel further contend that a subject matter jurisdiction defense could have been raised by the successor counsel at any time during the course of the litigation, inasmuch as a defect in subject matter jurisdiction cannot be waived, and may be raised at any time during an action (CPLR 3211 [e]). They also note that, when Koch was given a second chance to submit an answer in the Matrimonial Action, her present counsel proceeded to litigate Koch’s commercial claims against RK in the same forum. Additionally, she did not seek to dismiss the Matrimonial Action on jurisdictional grounds, but rather submitted an answer and utilized the same strategy Koch now complains that these Defendants inappropriately used. Thus, they argue that they cannot be liable for what was, at its essence, a strategic decision on their part.The Initial Counsel also note that, apart from her jurisdictional claims, Koch accuses them of failing to (1) advise her of her right to pursue remedies in tort for battery (amended. complaint, fifth cause of action, §§233-240), (2) pursue child support (id., sixth cause of action, §244[e]) or spousal maintenance (id., §244 [f]), (3) advise her of the consequences of their withdrawal (id., eighth cause of action, §264-271), and of causing her emotional and physical damages as a result of their alleged breaches and “exorbitantly priced legal services” (id., sixteenth cause of action, §§370-378).With respect to Koch’s alleged battery claim, Initial Counsel maintains, while they were not retained to advise her of tort remedies, as a matter of strategy, the answer interposed on her behalf in the Matrimonial Action raised her claims of spousal abuse by RK (verified answer dated 3/16/04 [the Answer], §5). Aronson alleges that spousal abuse can be alleged within a divorce action to request that the court award a disproportionate share of the marital estate to the victim of the abuse, as opposed to pursuing the abuser separately in a tort action (Aronson affirmation 5/2/17 at 14). Thus, Initial Counsel argue that it cannot be said they did not pursue effective remedies for Koch as a victim of spousal abuse. They further maintain that the statute of limitations for a battery claim did not expire until after they were terminated, and, thus, Koch or her successor counsel could have timely pursued this claim.The Initial Counsel also note that the.answer they interposed on her behalf clearly stated that the relief Koch was seeking included, inter alia, an award of sole custody of Michal Koch, child support and spousal maintenance (the Sheresky Defendants’ moving papers, exhibit L, answer dated 3/16/04).Initial Counsel maintain that, while Koch alleges that they negligently withdrew from representing her, the evidence, consisting of her email dated September 30, 2004 (Aronson’s moving papers, exhibit R, email dated 9/30/04), and the consent to change attorney form executed by her (id., exhibit S, consent to change attorney to the Ragues Defendants dated 12/12/04), demonstrates that she, of her own volition, terminated their respective firms. Additionally, they argue that their purported negligent withdrawal could neither be viewed as the cause of any damages, inasmuch they were no longer the attorneys of record in 2005, when Koch was held in contempt twice, nor, in 2006, when the Default Judgment was entered against her. Thus, they request that summary judgment dismissing the legal malpractice claims be granted in their favor.In opposition to the Sheresky Defendant’s summary judgment motion, and in support of her motion for summary judgment on her legal malpractice claims, Koch’s counsel submits, inter alia, an affidavit by Koch. He argues that, while the preclusion order bars her from testifying at trial, it does not bar her from submitting an affidavit or evidence through other means in opposition to defendants’ summary judgment applications. Counsel also relies on an affidavit by Kathryn S. Lazar, Esq., Koch’s expert, who opines that the Initial Counsel failed to use the ordinary reasonable skills and knowledge commonly possessed by member of the legal profession and that, but for these breaches, Koch would have received, inter alia, child support, arrears, and spousal support, and would not have had to incur additional legal fees, and contempt sanctions.Additionally, Koch’s counsel argues that the comparison of the orders entered against her (the July 2005 Order and the November 2005 Orders) with the October 2008 Order issued in her favor demonstrates that Koch received a more favorable result, and is the basis for her damages against the Initial Counsel, i.e., the awards issued in her favor. He contends that, since the Initial Counsel did not challenge the findings of fact, conclusions of law and awards made in the October 2008 Order, these findings are binding on them, pursuant to the doctrine of collateral estoppel. He also proffers arguments in support of other purported breaches by the Initial Counsel which have not been asserted against the Initial Counsel in the amended complaint, and, thus, need not be addressed by this Court.Here, the Initial Counsel demonstrate their entitlement to summary judgment with respect to the legal malpractice claims asserted against them. Since an order was issued precluding Koch from testifying at trial, as argued by the Initial Counsel, she is barred from offering her own “affirmative evidence” through an affidavit to oppose the summary judgment applications (see, Mendoza v. Highpoint Assoc. IX, L.L.C., 83 AD3d 1, 9 [1st Dept 2011]). Allowing such testimony “would perversely undermine the point of the [preclusion] order by allowing [Koch] to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial” (id.).Further their evidence, consisting of, inter alia, their depositions, affidavits and other documentation, including the retainer agreement, clearly negate Koch’s claims of purported breaches asserted against the Initial Counsel in the amended complaint against the Initial Counsel. The record establishes that Koch initially retained the Bragar Defendants to pursue claims against RK for control of the parties’ companies; that, after being informed of the Matrimonial Action, the Initial Counsel interposed an answer, that had been sent to Koch (the Bragar’s exhibit L, correspondence dated 2/13/04), which sought, inter alia, spousal and child support, and reflected spousal abuse (the Bragar’s exhibit M, answer dated 3/16/04). The record also demonstrates that the Initial Counsel filed an application on Koch’s behalf for injunctive relief that resulted in relief in her favor, including providing her with, inter alia, sole check-signing authority of the bank accounts of the parties’ businesses, Europa Docu-Search, Inc. and Eurovid FKK New York, and access to the post office box of these companies (the Bragar Defendants’s exhibit O, the July 2004 Order). The Initial Counsel thus demonstrate that their decision to not challenge personal jurisdiction, and to proceed in the Matrimonial Action was a reasonable strategic decision that obtained the results sought by Koch. It is well settled that “neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice” (Hand v. Silberman, 15 AD3d 167, 167-168 [1st Dept 2005]).Further, with respect to subject matter jurisdiction, as argued by the Initial Counsel, “[a] defect in subject matter jurisdiction may be raised at any time by any party or by the court itself” (Strunk v. New York State Bd of Elections, 126 AD3d 777, 779 [2d Dept 2015] [internal quotation marks and citation omitted]). Here Koch complained that RK’s purported inability to satisfy the residency requirements of Domestic Relations Law (DRL) §230 (1) resulted in the Matrimonial Court’s lack of subject matter jurisdiction. This Court notes, however, that the “Supreme Court…is vested constitutionally with ‘subject matter jurisdiction’ in matrimonial actions’ (Lacks v. Lacks, 41 NY2d 71, 76 [1976]), and the requirement of section 230 goes “only to the substance of the divorce cause of action, not to the competence of the court to adjudicate the cause” (id. at 73). Thus, contrary to Koch’s allegation, any issue relating to RK’s residence, pursuant to DRL 230, would not have rendered the court in the Matrimonial Action without subject matter jurisdiction. Thus, the Initial Counsel demonstrate that Koch’s complaint that they breached their duty to raise jurisdictional defenses on her behalf, as alleged in the fourth sixth causes of actions, is not supported by the record.With respect to the fifth cause of action, where Koch’s claims that the Initial Counsel breached their respective duties by failing to advise Koch of her right to pursue remedies in tort for battery, the record demonstrates that the subject retainer agreement executed by Koch with the Bragar Defendants provides that they were retained to represent her in connection with “her claims against [RK] arising from Europa Docu-Search Inc. and Eurovid,” the companies owned by Koch and RK (the Bragar Defendants’ exhibit L, retainer agreement dated 2/10/04), and that the Initial Counsel, with Koch’s acknowledgment and agreement, represented her in the Matrimonial Action (see id; the Bragar Defendants’ exhibit P, email from Koch to Bragar dated 9/30/04, advising that she was terminating their services relating to the Matrimonial Action). There is nothing in the record that demonstrates that their representation was expanded to include a separate tort action.In any event, as previously noted, the answer interposed by the Initial Counsel includes spousal abuse allegations, in that it refers to RK’s “repeated physical assaults upon [Koch's] person” since approximately December 2002 (the Aronson’s exhibit L, answer dated 3/16/04). Additionally, the record demonstrates that Koch terminated the Initial Counsel (the Aronson Defendants’ exhibit R, email dated 9/30/04), and new counsel were substituted (the Aronson Defendants’ exhibit S, consent to change attorney dated 11/12/04; the Bragar Defendants’ exhibit Y, the October 2008 Order), who had “sufficient time and opportunity to adequately protect [Koch's] rights” with respect to any jurisdictional defenses or potential tort claims (Maksimiak v. Schwartzapfel Novic Truhowksy Marcus, P.C., 82 AD3d 652, 652 [1st Dept 2011]). Inasmuch as “the substitution of counsel was a superseding and intervening act that severed any potential liability for legal practice on the part of [the Initial Counsel] (see Liporace v. Neimark & Niemark, LLP, 157 AD3d 473, 474 [1st Dept 2018]), proximate cause cannot be demonstrated (Maksimiak v. Schwartzapfel Novic Truhowksy Marcus, P.C., 82 AD3d at 652; Perks v. Lauto & Garabedian, 306 AD2d 261, 262 [2d Dept 2003]). Thus, the Initial Counsel demonstrate that they are entitled to summary judgment on the fifth cause of action.The sixth cause of action, aside from purported breaches regarding jurisdiction, alleges, inter alia, that the Initial Counsel did not pursue child support or any other recovery with respect to Michal Koch or spousal support. The Initial Counsel demonstrate that the answer they interposed on Koch’s behalf negates such allegations, inasmuch as it expressly sought, inter alia, that Koch be awarded sole custody of Michal Koch, child support and spousal maintenance (the Bragar Defendants’ exhibit o, answer dated 3/16/04).The eighth cause of action complains, inter alia, that the Initial Counsel breached their duties by negligently withdrawing from representing Koch in the Matrimonial Action (the amended complaint,264-270). As previously noted, the Initial Counsel submit proof that Koch terminated their services. The record is devoid of any evidence demonstrating that the Initial Counsel withdrew prior to her termination of their services.As for the sixteenth cause of action, Koch complains that she suffered emotion distress as a result of the breaches by the Initial Counsel (the amended complaint, 369-372). As discussed herein, the Initial Counsel sufficiently demonstrate that they have not breached the aforementioned duties alleged by Koch in her amended complaint. In view of the foregoing, the Initial Counsel make a prima facie showing of entitlement to summary judgment dismissing the legal malpractice claims asserted against them.It is well settled that “summary judgment motion is the procedural equivalent of a trial, requiring a party to submit in opposition evidentiary facts or materials, by affidavit or otherwise…demonstrating the existence of a triable issue of ultimate fact” (see Adam v. Cutner & Rathkopf, 238 AD2d 234, 240 [1st Dept 1997] [quotation marks and citations omitted]). As previously noted, in light of the order precluding Koch’s testimony at trial, her affidavit is also barred (see, Mendoza v. Highpoint Assoc IX, L.L.C., 83 AD3d at 9). Further, the proffer of an affidavit by her expert on legal malpractice is also unavailing, since it is the function of the court to determine whether the Initial Counsel’s performance or absence thereof constitutes malpractice (Dimond v. Salvan, 78 AD3d 407, 407 [1st Dept 2010]; see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 69 [1st Dep 2002]). Attorneys’ affidavits are not relied upon by the court to determine what constitutes malpractice (id).Additionally, Koch’s argument that the findings in the October 2008 Order are binding on the Initial Counsel, pursuant to the doctrine of collateral estoppel, are without merit. Collateral estoppel applies when “the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and…the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v. Eli Lilly & Co., 65 NY2d 449, 455 [1985). In the October 2008 Order, the court found, inter alia, that the contempt orders, i.e., the July 2005 Order and the November 2005 Order, were improvidently entered against her due to the "improper acts and negligence of [Koch's] then counsel with the active participation of [RK's] counsel (the Sheresky Defendants’ exhibit Y, October 2008 Order,
