FILED: NEW YORK COUNTY CLERK 02/22/ :04 AM INDEX NO /2016 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 02/22/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X JODI KNOX, a/k/a/ JODI MCGINNIS, Index No /2016 -against- Plaintiff, ARONSON, MAYEFSKY & SLOAN, LLP, and KAREN ROBARGE, REPLY AFFIRMATION OF JONATHAN B. BRUNO IN FURTHER SUPPORT OF DEFENDANTS MOTION TO DISMISS Defendants X JONATHAN B. BRUNO, being an attorney duly admitted to practice before the Courts of the State of New York, under penalty of perjury, affirms and states: 1. I am a partner at Rivkin Radler LLP, attorneys for Defendants, Aronson Mayefsky & Sloan, LLP ( AMS ) and Karen Robarge ( Attorney Robarge ). As such, I am fully familiar with the facts and circumstances set forth in this Affirmation. I execute this Reply Affirmation upon information and belief, based upon my review of the file maintained by my Firm. 2. This Reply Affirmation is submitted in support of defendants motion seeking an Order: (a) dismissing plaintiff s First Amended Complaint (hereinafter the Amended Complaint ) with prejudice, pursuant to CPLR 3211(a)(1), on the grounds that the documentary evidence provides a complete defense to plaintiff s causes of action; (b) dismissing plaintiff s Amended Complaint with prejudice, pursuant to CPLR 3211(a)(7) for failing to state a valid cause of action; and (c) for such other and further relief as this court may deem just and proper. 3. On February 2, 2017, the day before the original return date 1 of defendants motion to dismiss the Complaint, plaintiff filed an Amended Complaint. A copy of Plaintiff s Amended Complaint is annexed hereto as Exhibit ( Ex. ) A. Within ten minutes of filing the Amended Complaint, plaintiff filed a one page attorney affirmation in opposition to defendants 1 On or about February 4, 2017 the Court adjourned, sua sponte, the return date of defendants motion to February 23, of 14

2 motion to dismiss the Complaint. A copy of the Affirmation of Richard Pu in Opposition is annexed hereto as Ex. B. The only argument plaintiff makes in opposition to defendants motion is that defendants motion to dismiss has been mooted by the filing on 2/3/16 of a First Amended Complaint. Plaintiff is wrong. This court can properly consider defendants motion to dismiss as directed at the Amended Complaint. See the accompanying Reply Memorandum of Law, Point I. 4. Plaintiff s Amended Complaint does not add any new causes of action, but merely attempts to amplify the original Complaint with additional speculative and conclusory allegations. As with her original Complaint, Plaintiff is still asserting purported claims for negligence, breach of fiduciary duty, fraud and a violation of Judiciary Law 487, and is also seeking punitive and emotional distress damages. The only significant difference between the Complaint and the Amended Complaint is the addition of Fredman Baken & Kosan, LLP 2 as a defendant. Plaintiff s Amended Complaint should be dismissed for the reasons set forth in defendants initial moving papers, affirmation and exhibits and in this Reply Affirmation and exhibits and the accompanying Reply Memorandum of Law. 5. Plaintiff s Amended Complaint does not cure the deficiencies in the original Complaint. The Amended Complaint repeats plaintiff s far-fetched fantasy of a conspiracy between defendants and her ex-husband s lawyer to avoid having a motion for a protective order decided in order to generate legal fees in the underlying Matrimonial Action. Plaintiff continues to blame defendants for losing custody of her daughter twenty (20) months after defendants ceased representing her in November In her original Complaint, plaintiff alleged AMS partner Karen Robarge prepared and calendared, but failed to submit, a motion for a protective order against her ex-husband, Jim McGinnis. See Affirmation of Jonathan B. Bruno in support of Motion to Dismiss ( Bruno Aff. ), Ex. A 1(a). Plaintiff alleged that because the matrimonial court was not made aware of her ex-husband s abusiveness, he was allowed to 2 Fredman Baken & Kosan, LLP was the third of six law firms that represented plaintiff. 2 2 of 14

3 move for legal custody of their daughter, which was granted. See Bruno Aff., Ex. A 1(c-e). 6. In her Amended Complaint, plaintiff now admits (after being presented with documentary proof in support of defendants motion) that a motion for an order of protection was in fact filed by defendants, but alleges that defendants should have allowed the motion to be decided rather than entering into a temporary stipulation and that had defendants done so, Justice Ellen Gesmer would have granted the motion and plaintiff would not have lost custody of her daughter. See Ex. A 25. Plaintiff s conclusory and speculative allegations are fatally flawed, fail to state any cognizable claim against defendants, and are defeated by the documentary evidence warranting a dismissal of plaintiff s Amended Complaint with prejudice. 7. First, plaintiff s ex-husband had already moved out of the marital residence ceding exclusive occupancy to plaintiff months before defendants were ever retained. See Bruno Aff., Ex. C. Between the time Mr. McGinnis moved out of the marital residence and the filing of the motion for a protective order in May 2013, plaintiff had been voluntarily meeting with Mr. McGinnis including having lunch with him. See Bruno Aff., Ex. C. Defendants advised plaintiff as early as March 2013 that while the situation could change at any moment, absent another incident with Mr. McGinnis, plaintiff did not currently have grounds for a temporary order of protection as the incidents complained of had occurred several months previously. See Bruno Aff., Ex. C. 8. Second, virtually the entire relief plaintiff sought in the motion for protective order was agreed to by Mr. McGinnis in the temporary stipulation except for a protective order including supervised visitation. See Bruno Aff., Exs. F & G. Third, plaintiff did not lose custody of her daughter because the motion for protective order was not decided. She lost custody of her daughter because she failed to move back with her daughter to Manhattan by September 1, 2014 in violation of the Stipulation of Settlement she had reached with Mr. McGinnis on April 30, 2014, five months after defendants had ceased representing her. 3 3 of 14

4 9. The documentary evidence, which plaintiff has not and cannot dispute reveals the truth of what happened during defendants representation of plaintiff and exposes plaintiff s Amended Complaint for what it is: pure fiction and an attempt to blame her lawyers rather than accept personal responsibility for her actions which are the sole cause of her losing custody of her daughter. Defendants Motion To Dismiss Is Not Moot 10. Contrary to plaintiff s contention, the Amended Complaint, which was filed less than ten minutes before plaintiff filed her opposition to defendants motion to dismiss, does not render defendants motion moot. This court can properly consider defendants motion to dismiss as directed at the Amended Complaint. See the accompanying Reply Memorandum of Law, Point I. 11. Here, plaintiff did not attempt to defend the original complaint. Instead, she filed an amended complaint and a one page opposition to defendants motion alleging that the motion was mooted by the filing of the Amended Complaint. However, as the case in this department unequivocally holds, defendants motion is not mooted by the filing of the Amended Complaint and defendants respectfully requests that the court consider their motion to dismiss, as well as this reply, as directed against the Amended Complaint. Plaintiff Fails To State A Claim For Professional Negligence 12. In her Amended Complaint plaintiff alleges defendants were negligent in: (a) failing to make a motion for attorneys fees; (b) advising plaintiff that she could move to Connecticut. See Ex. A 58 (a), (b). Like the original Complaint, the Amended Complaint fails to state a claim for negligence. 13. The law in the First Department is clear. In order to state a claim for legal malpractice against defendants, plaintiff must plead and ultimately prove that she would have succeeded on the merits of the underlying action but for the attorney s alleged negligence. See the accompanying Reply Memorandum of Law, Point II. Plaintiff is required to establish 4 4 of 14

5 that the alleged negligence of defendants was the but for cause of her alleged damages. Speculative allegations are insufficient to plead a legal malpractice claim. See id. 14. Defendants represented plaintiff for only the first nine months of her Matrimonial Action. Plaintiff has not alleged sufficient facts to show that because defendants purportedly failed to move for attorney s fees, Plaintiff failed to receive an as yet undetermined award of money to pay her attorneys. See Ex. A The Stipulation of Settlement that plaintiff entered into with her ex-husband while represented by co-defendant, Fredman Baken Kosan LLP, states in part, The Husband shall pay directly to Fredman Baken Kosan LLP, on the Wife s behalf, a total of $20, The Wife shall otherwise be solely responsible for all legal and professional fees incurred by her in connection with the Action, the negotiation and preparation of this Agreement and the obtaining of an uncontested divorce, and she hereby indemnifies and holds the Husband harmless with respect to same. See Bruno Aff., Ex. Q, pp Therefore, plaintiff s claim that because defendants failed to move for attorney s fees on her behalf she has not received an an award of money to pay her attorneys makes no sense and is defeated by the language of the Stipulation of Settlement whereby her ex-husband was supposed to pay her attorneys $20,000 and plaintiff agreed she would be responsible for all legal and professional fees incurred by her in connection with the Action. Id. 15. Moreover, it is undisputed that any one of plaintiff s many successor attorneys had sufficient time and opportunity to protect plaintiff s rights and, in fact, one of her subsequent attorneys moved for attorney s fees. See Bruno Aff., Ex. P. Similarly, any one of plaintiff s attorneys could have filed another motion for a protective order in the twenty months between defendants discharge as counsel and July 2015 when Justice Gesmer awarded plaintiff s exhusband custody of their daughter. It is important to note that while represented by successor counsel, plaintiff voluntarily withdrew her application for an Order of Protection with prejudice in the Stipulation of Settlement. See Bruno Aff., Ex. Q, p. 38. It is well-settled that where a plaintiff s subsequent counsel had sufficient opportunity to protect the plaintiff s rights, any 5 5 of 14

6 alleged negligence by the prior attorney cannot be the proximate cause of the plaintiff s alleged damages. See the accompanying Reply Memorandum of Law, Point II. Since there was sufficient time and opportunity by successor counsel to protect plaintiff s rights, any alleged negligence by defendants in failing to make a motion for attorney s fees cannot be the proximate cause of plaintiff s alleged damages. Plaintiff s Amended Complaint should be dismissed. 16. With respect to the allegation that defendants were negligent in advising plaintiff that she could move to Connecticut, the documentary evidence completely contradicts plaintiff s claim. Once again plaintiff is attempting to blame her lawyers for her failure to return to Manhattan in accordance with the Stipulation of Settlement she entered into with her exhusband. See Ex. A 59. In or around July 2013, plaintiff expressed her desire to relocate out of Manhattan so that she could recover from foot surgery. On July 1, 2013, in response to plaintiff s query regarding options for [her] surgery/convalescence plan, Attorney Robarge advised plaintiff [i]f you really do not wish to stay in NYC, the most sell-able options are NJ or Greenwich, in that order. See Bruno Aff., Ex. I. Attorney Robarge specifically told plaintiff that nobody would believe that the three-bedroom Manhattan apartment, paid for by Mr. McGinnis, would be the least convenient option, as it was in a full-service building, she had the ability to have almost anything delivered, and it was all on one level, which would be best for when she was on crutches. See Bruno Aff., Ex. I. On July 3, 2013, Attorney Robarge advised plaintiff that New York is one of the strictest states when it comes to relocation of the custodial parent. See Bruno Aff., Ex. I. Importantly, Attorney Robarge advised plaintiff that it she relocated at that time, without the legitimacy of the forensic evaluator s report which had not been completed, it would look like plaintiff was trying to cut and run and it will overshadow all other issues. See Bruno Aff., Ex. I. Despite defendants advice, plaintiff sought approval directly from Mr. McGinnis to move, and he agreed that she should convalesce in Greenwich while recovering from her foot surgery and that he would move back into their Manhattan apartment. See Bruno Aff., Ex. J. 6 6 of 14

7 17. By the end of July 2013, defendants made it clear to plaintiff that she needed to get new counsel as she was not heeding their advice. See Bruno Aff., Ex. L. In an from Pamela Sloan of AMS to plaintiff, Ms. Sloan states, To be clear: we did not, as you say again, reverse our advice on your move to Greenwich. The s between you and us are clear in chronicling: (a) you have wanted to relocate from NYC from the outset of the case; (b) we told you such relocation (at least during the pendency of the case) would be difficult to accomplish without Jim s consent, and Karen [Robarge] even outlined to you the very strict law in NY on the issue of relocation; (c) when the surgery came up and you floated the idea of convalescing in Greenwich, we thought it would be difficult to claim that there was an easier place to recuperate than in a one-floor Manhattan apartment in a full-service building, but agreed with you that it might present an opportunity to see if Jim would behave in a way that would increase your chances of persuading the Court that you should be permitted to move more permanently; (d) when Jim said it was OK to go to Greenwich to convalesce, and then added that he d move back into the Battery Park City apartment (whose lease is up at the end of October anyway), we thought that could be helpful to our eventual argument that he doesn t care if you live in NYC See Bruno Aff., Ex. L. 18. The documentary evidence is clear that plaintiff wanted to move to Connecticut and that defendants advised her of the risks associated with such a move. Irrespective of whether or not defendants approved plaintiff s temporary move to Connecticut, the crucial fact remains undisputed: plaintiff admittedly did not return to Manhattan by September 1, 2014, as she was required to do under the terms of the Stipulation of Settlement she reached with her exhusband five months after defendants representation ceased. See Bruno Aff., Ex. Q, pp. 11, 27-28; Ex. A 46. As a result, Mr. McGinnis moved for custody of their daughter and the Court granted his application. See Ex. A 45-47, Plaintiff s Amended Complaint is completely devoid of any factual allegations that causally link the purported negligent advice regarding moving to Connecticut and plaintiff losing 7 7 of 14

8 custody of her daughter. What caused plaintiff to lose custody of her daughter is her own breach of the Stipulation of Settlement. To allege that defendants advice concerning her convalescing in Connecticut resulted in her missing a deadline in returning which in turn resulted in Plaintiff losing custody of her infant daughter defies any logic whatsoever and borders on the frivolous. See A 58, 59. Plaintiff s Amended Complaint should be dismissed with prejudice. Plaintiff s Breach of Fiduciary Duty Claim Is Redundant Of Her Professional Negligence Claim And Even If It Is Not, The Amended Complaint Fails To State A Cause Of Action For Breach Of Fiduciary Duty 20. New York law holds that, where a breach of fiduciary duty claim is premised on the same facts and seeks relief identical to that sought in a legal malpractice cause of action, such claims are redundant and should be dismissed. See the accompanying Reply Memorandum of Law, Point III. Moreover, in order to plead a breach of fiduciary duty claim against an attorney, a plaintiff must allege that the attorney s breach caused damages separate and distinct from the negligence-based legal malpractice cause of action. See id. Here, plaintiff s breach of fiduciary duty claim is premised on the same facts and circumstances as her negligence claim. See Ex. A. Both claims arise out of defendants representation of plaintiff in the underlying Matrimonial Action. In fact both purported causes of action rely on all the same factual allegations contained in paragraphs 1 through 55 3 of the Amended Complaint. 21. In an obvious attempt to overcome the fact that the claims are redundant, plaintiff tries to compartmentalize defendants actions in her Amended Complaint, 4 but such an attempt fails and is inconsistent with the law. For example to support her negligence claim, plaintiff alleges defendants breached the duty of care owed to her by: (a) failing to make a motion for attorneys fees; (b) advising plaintiff that she could move to Connecticut. See Ex. A 58 (a), 3 Although paragraphs 56 and 61 of the Amended Complaint state, Plaintiff repeats the allegations of 1-59 with the same force and effect as if fully set forth hereinafter, reference to those paragraphs appears to be a typo. 4 Compare paragraphs in the original complaint against paragraphs and in the Amended Complaint. 8 8 of 14

9 (b). Then, to support her breach of fiduciary duty claim, plaintiff alleges defendants delayed the filing of the motion for a protective order, did not allow the motion to be decided, and misled her as to the outcome of the motion. See Ex. A 68. Plaintiff attempts to do the same thing so far has her alleged damages are concerned. 5 What plaintiff is complaining about in both claims are defendants actions in their representation of her in the Matrimonial Action. Identifying specific acts or omissions then pigeonholing them into a claim for negligence versus a claim for breach of fiduciary duty does not overcome the fact that the two claims arise out of defendants alleged acts and omissions in the Matrimonial Action. Plaintiff s breach of fiduciary duty claim is redundant of her negligence claim and must be dismissed. 22. Even if this Court determines that plaintiff s breach of fiduciary duty claim is not redundant of her negligence claim, the Amended Complaint still fails to state a claim for breach of fiduciary duty. Again, to support her breach of fiduciary duty claim, plaintiff alleges defendants delayed the filing of the motion for a protective order, prevented the motion from being decided, and misled her about the outcome of the motion. See Ex. A With respect to any alleged delay in filing the motion for an order of protection, the record is clear as to why defendants did not make the motion right away: because there was no basis to and in defendants professional judgment, making the motion without a further incident by plaintiff s ex-husband was not a reasonable course of action to take at the time. On March 5, 2013, Attorney Robarge ed plaintiff advising that a motion for a temporary order of protection was not the most fruitful next step. See Bruno Aff., Ex. C. Attorney Robarge explained that, while plaintiff initially presented to them in a crisis mode following an investigation by Child Protective Services ( CPS ), the circumstances changed due to the end of CPS investigation. See Bruno Aff., Ex. C. Attorney Robarge advised that while the situation could change at any moment, absent another incident with plaintiff s ex-husband, she believed 5 Compare pages 32 and 33 of the original complaint against pages of the Amended Complaint. 9 9 of 14

10 that plaintiff did not currently have grounds for a temporary order of protection as the incidents complained of had occurred several months previously, Mr. McGinnis voluntarily had moved out of the marital residence more than two months earlier and the plaintiff had been meeting with him voluntarily including for lunch. See Bruno Aff., Ex. C. Defendants also advised plaintiff that in their best professional judgment, an application for a protective order at this point would be a strategic and tactical error because it might well result in just such a defeat for you, as it could lead to Mr. McGinnis obtaining an access schedule with their daughter, to which plaintiff had been adamantly opposed. See Bruno Aff., Exs. C, D. 24. It is well-settled that an attorney s selection of one among several reasonable courses of action does not constitute legal malpractice. See the accompanying Reply Memorandum of Law, Point III. Therefore, any purported delay by defendants in filing a motion for an order of protection cannot, as a matter of law, support a claim for legal malpractice and plaintiff s negligence claim must be dismissed with prejudice. 25. Plaintiff alleges that had the motion for an order of protection not been disposed of by the Temporary Stipulation, Justice Gesmer would have: a. Ordered hearings where she could take live testimony regarding Jim s abuse; b. Granted the motion by issuing an order of protection prohibiting Jim from harming, harassing, threatening, menacing, and intimidating Plainatiff [sic] and the parties five-month old daughter and from contacting Plaintiff by any means other than or text regarding their daughter s well-being. See Ex. A 25. The allegation that the motion for a protective order would have been granted is repeated again in the Amended Complaint. See Ex. A 35, 48. Plaintiff then takes the giant leap and alleges, around 9/5/14, Jim made a motion for custody to be transferred to him. Had plaintiff s motion for a protective order been presented for a decision, Judge Gesmer would have convened hearings and granted Plaintiff s motion. And had that taken place, Jim could not have won his motion. See Ex. A However, plaintiff s allegations are completely speculative, conclusory and defeated by the documentary evidence. Plaintiff lost custody of her daughter of 14

11 because she violated the Stipulation of Settlement and the judge awarded her ex-husband was awarded custody. See Ex. A 45-47, 51; Bruno Aff., Ex. Q. 26. With respect to plaintiff s allegation that defendants breached their fiduciary duty by making false statements to her that the motion for an order of protection had been denied, a claim vehemently denied by defendants, even if the Court accepts the allegation as true, plaintiff fails to allege sufficient facts to show how defendants alleged misrepresentation caused her to lose custody of her daughter. The reason is simple. It didn t. Plaintiff violated the Stipulation of Settlement leading her ex-husband to file a motion for primary custody of their daughter, which the Court granted. See Bruno Aff., Ex. Q; Ex. A 45-47, 51. Moreover, in the five months that passed between the date defendants ceased representing plaintiff (November 7, 2013) and the date plaintiff entered into the Settlement Agreement with Mr. McGinnis (April 30, 2014), any of plaintiff s subsequent lawyers could have moved for an order of protection if they believed it was reasonable to do so. Therefore, any purported breach of fiduciary duty by defendants cannot, as a matter of law, be the cause of plaintiff s alleged damages.. Plaintiff s Fraud Claim Is Duplicative Of Her Professional Negligence Claim And Even If It Is Not, The Amended Complaint Still Fails To State A Cause Of Action For Fraud 27. Allegations of fraud against an attorney cannot be duplicative of the allegations in a professional negligence claim. To establish an independent claim of fraud, plaintiff must demonstrate that the claim is premised upon one or more affirmative, intentional misrepresentations that have created additional damages, separate and distinct from those generated by the alleged malpractice. See the accompanying Reply Memorandum of Law, Point IV. As with her negligence and breach of fiduciary duty claims, in support of her purported fraud claim, plaintiff relies upon all the same factual allegations in the Amended Complaint that precede her cause of action for fraud. See Ex. A 72. Moreover, plaintiff fails to allege separate and distinct damages arising from the alleged fraud. Plaintiff s fraud claim is based on alleged misrepresentations by defendants regarding the motion for an order of protection. See of 14

12 Ex. A However, like her breach of fiduciary duty claim, plaintiff s purported fraud claim and the alleged damages that arise out of that claim are based upon the same facts and circumstances as her negligence claim, to wit, defendants representation of her in the Matrimonial Action. Therefore, plaintiff s purported fraud claim must be dismissed a duplicative of her negligence claim. 28. Even if this Court determines that plaintiff s fraud claim is not duplicative of her negligence claim, the Amended Complaint still fails to state a claim for fraud. [A]n attorney s failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action. See the accompanying Reply Memorandum of Law, Point IV. A separate cause of action for fraud may be maintained in the malpractice setting provided that it is based upon one or more affirmative, intentional misrepresentations-that is, something more egregious than mere concealment or failure to disclose one s own malpractice - which have caused additional damages, separate and distinct from those generated by the alleged malpractice. See id. Here, plaintiff s Amended Complaint alleges that defendants statements concerning the motion for a protective order were false and that [s]uch statements were made to conceal [defendants ] misconduct. See Ex. A 72, 73. Since plaintiff s fraud claim is based on nothing more than the alleged concealment of defendants alleged negligence, plaintiff s claim must be dismissed with prejudice. Plaintiff Fails To State A Claim For Violation of Judiciary Law The only difference between the plaintiff s Judiciary Law claim in the original Complaint and the Judiciary Law claim in the Amended Complaint is the addition of paragraphs 79 and 80 in the Amended Complaint. However, plaintiff admittedly relies on the actions alleged in Plaintiff s breach of fiduciary duty and fraud claims to support her Judiciary Law claim. See Ex. A 79. Relief under Judiciary Law 487 must be carefully reserved for the extreme pattern of legal delinquency, or for misconduct that is chronic. See the accompanying Reply Memorandum of Law, Point V of 14

13 30. In order to set forth a prima facie claim of violation of Judiciary Law 487, plaintiff must allege that: (a) defendants are guilty of, or consented to, any deceit or collusion; (b) defendants had an intent to deceive the court or any party; and (c) damages were caused by defendants alleged deceit. See id. Mere conclusory allegations of deceit or intent to deceive are insufficient to set forth a prima facie claim. See id. 31. Plaintiff s Amended Complaint fails to allege deceit that reaches the level of egregious conduct or chronic and extreme pattern of behavior to support a Judiciary Law claim and, therefore, plaintiff s fifth cause of action must be dismissed. Furthermore, plaintiff cannot properly assert a Judiciary Law claim in this action for alleged deceits during the course of the Matrimonial Action. It is well-settled that if an injured party is aware that a lawyer is violating 487 at the time the violation occurs, the victim s exclusive remedy is to bring an action in the course of that same proceeding. See id. For the foregoing reasons, plaintiff s Judiciary Law claim must be dismissed with prejudice. Plaintiff Is Not Entitled To Punitive Or Emotional Distress Damages 32. Punitive damages are not recoverable for mere allegations of fraud. See the accompanying Reply Memorandum of Law, Point VI. The Amended Complaint fails to allege conduct on the part of defendants that was so outrageous, as to evince a high degree of moral turpitude and showing such wanton dishonesty as to imply a criminal indifference to civil obligations to warrant punitive damages. See id. Similarly, plaintiff s claims for emotional distress damages also fail as a matter of law. Emotional distress damages are not recoverable under New York law in a legal malpractice claim and since plaintiff s purported breach of fiduciary duty and fraud claims are redundant of her negligence claim, she is not entitled to emotional distress damages at all. See id. Similarly, Judiciary Law 487 does not provide for emotional distress damages. Plaintiff s claims for punitive and emotional distress damages should be dismissed in their entirety with prejudice of 14

14 WHEREFORE, it is respectfully requested that this court issue an Order: (a) dismissing plaintiff s Amended Complaint with prejudice, pursuant to CPLR 3211(a)(1), on the grounds that the documentary evidence provides a complete defense to plaintiff s causes of action; (b) dismissing plaintiff s Amended Complaint with prejudice, pursuant to CPLR 3211(a)(7) for failing to state a valid cause of action; and (c) for such other and further relief as this court may deem just and proper. Dated: New York, New York February 22, 2017 Jonathan B. Bruno v of 14