FILED: NEW YORK COUNTY CLERK 10/23/ :08 PM INDEX NO /2016 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 10/23/2017

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1 COUNTY OF NEW YORK Index No /2016 JODI KNOX, a/k/a JODI MCGINNIS, NOTICE OF APPEAL ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, Defendants. S I R S : PLEASE TAKE NOTICE that Plaintiff Jodi Knox does hereby appeal to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, at 27 Madison Avenue, New York, NY, from the decision of the above-captioned court dated 10/16/17 and entered 10/16/17 in this action which, amongst other things, dismissed Plaintiff s claim against Defendant FREDMAN BAKEN & KOSAN, LLP, from every part of such decision. A copy of the decision is attached. 1 of 13

2 Dated: New York, NY October 23, 2017 Richard Pu Attorney for Plaintiff (212) (o) 2 2 of 13

3 FILED: NEW YORK COUNTY CLERK 10/16/ /23/ :34 02:08 PM INDEX NO /2016 NYSCEF DOC. NO RECEIVED NYSCEF: 10/16/ /23/2017 NEW YORK COUNTY PRESENT: HON. CARMEN VICTORIA ST. GEORGE PART 34 Justice JODI KNOX a/k/a JODI MCGINNIS, INDEX NO MOTION DATE 08/10/2017 -v- ~ MOTION SEQ. NO. 004 ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, FREDMAN BAKEN & KOSAN, LLP,. '( Defendants. The following papers were read on this PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits.:.. Exhibits Rep~ngAffidavtts In this legal malpractice action, defendant Fredman Baken & Kosan, LLP (FBK) moves for dismissal under CPLR 3211 (a) (1), (4), (5), and (7). The papers in support show that plaintiff alleged essentially the same facts as she had in her counterclaim in Fredman, Baken & Kosan, LLP v McGinnis (Sup Ct, Westchester County, Giacomo, J., index No /2015). Moreover, contrary to plaintiff's contention, the Westchester Court's January 11, 2017 decision in that case denied plaintiff's cross-motion to amend her answer to include negligence/legal malpractice and breach of fiduciary duty on substantive grounds, as it found "even accepting every allegation of the proposed amended answer as true, defendant cannot establish a negligence or breach of fiduciary duty claim against plaintiff" (Id, January 11, 2017, at *3). Plaintiff cannot bring an action against FBK here on the same grounds that the Westchester Court expressly rejected (See Paramount Pictures Corp. v Allianz Risk Transfer AG, 141 AD3d 464 [1st Dept 2016] [adjudication on the merits bars relitigating issue in other actions]); Harley v Kawkins, 281 AD2d 593, 594 [2nd Dept 2001] [plaintiff's second action for legal malpractice disµiissed even with respect to additional claims, as they could have been raised in first action]). Plaintiff's arguments to the contrary lack merit. The Court does not address plaintiff's letter or FBK's response, as Justice Billings already rejected plaintiff's contentions regarding counsel's fraud when she heard oral argument. Accordingly, it is 01,U)ERED and ADJUDGED that motion sequence 004 is granted, the action is severed and dismissed as to FBK, and the caption is amended accordingly. DATED: 1. CHECK ONE: CHECK AS APPROPRIATE:... MOTION IS 3. CH~CK IF APPROPRIATE: of 13 1

4 COUNTY OF NEW YORK Index No /2016 JODI KNOX, a/k/a JODI MCGINNIS, PRE-ARGUMENT STATEMENT ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, Defendants. 1. The title of the action was Jodi Knox, a/k/a Jodi McGinnis v. Aronson, Mayefsky & Sloan, Karen Robarge, and Fredman Baken & Kosan, LLP. 2. The names of the parties were: a. Plaintiff Jodi Knox, a/k/a Jodi McGinnis; b. Defendants: i. Aronson, Mayefsky & Sloan, ii. iii. Karen Robarge Fredman Baken & Kosan, LLP. Fredman Baken & Kosan, LLP ceased to be a Defendant as a result of the decision being appealed from. 3. The counsel for the Appellant is: Richard Pu, Esq. (212) (o). 4. The counsel for the Respondent is: 4 of 13

5 Lisa Shrewsberry, Esq. Traub Lieberman Straus & Shrewsberry Mid-Westchester Executive Park Seven Skyline Drive Hawthorne, NY (914) The appeal is being taken from the Supreme Court, New York County. 6. The nature of the cause of action against Respondent was legal malpractice. 7. The court below dismissed the action as to Respondent. 8. The grounds for seeking reversal is that a decision in another action had no res judicata or collateral estoppel effect because it was not on the merits. Dated: New York, NY October 23, 2017 Richard Pu (212) (o) 2 5 of 13

6 COUNTY OF NEW YORK Index No /2016 JODI KNOX, a/k/a JODI MCGINNIS, PRE-ARGUMENT STATEMENT ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, Defendants. 1. The title of the action was Jodi Knox, a/k/a Jodi McGinnis v. Aronson, Mayefsky & Sloan, Karen Robarge, and Fredman Baken & Kosan, LLP. 2. The names of the parties were: a. Plaintiff Jodi Knox, a/k/a Jodi McGinnis; b. Defendants: i. Aronson, Mayefsky & Sloan, ii. iii. Karen Robarge Fredman Baken & Kosan, LLP. Fredman Baken & Kosan, LLP ceased to be a Defendant as a result of the decision being appealed from. 3. The counsel for the Appellant is: Richard Pu, Esq. (212) (o). 4. The counsel for the Respondent is: 6 of 13

7 Jonathan Bruno, Esq. Rivkin Radler 477 Madison Ave. 20th Floor New York, NY P: (212) The appeal is being taken from the Supreme Court, New York County. 6. The nature of the cause of action against Respondent was legal malpractice. 7. The court below dismissed Appellant s breach of fiduciary duty claim against Respondent. 8. The grounds for seeking reversal is that Appellant s breach of fiduciary duty claim: a. is not duplicative of her other claims because it is the only claim seeking recovery for pain and mental suffering; b. is not speculative because: i. it is based on provable facts; ii. the same allegations underlying Appellant s breach of fiduciary duty claim underlay her other claims, and the lower court did not regard the other claims as being speculative. 9. There is a related appeal in the instant action: a. the appeal is from an order dated and entered on 10/16/17; b. a copy of the notice of appeal and preargument statement of the related appeal is annexed hereto. 2 7 of 13

8 Dated: New York, NY October 23, 2017 Richard Pu (212) (o) 3 8 of 13

9 COUNTY OF NEW YORK Index No /2016 JODI KNOX, a/k/a JODI MCGINNIS, NOTICE OF APPEAL ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, Defendants. S I R S : PLEASE TAKE NOTICE that Plaintiff Jodi Knox does hereby appeal to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, at 27 Madison Avenue, New York, NY, from the decision of the above-captioned court dated 10/16/17 and entered 10/16/17 in this action which, amongst other things, dismissed Plaintiff s claim against Defendant FREDMAN BAKEN & KOSAN, LLP, from every part of such decision. A copy of the decision is attached. 9 of 13

10 Dated: New York, NY October 23, 2017 Richard Pu Attorney for Plaintiff (212) (o) 2 10 of 13

11 FILED: NEW YORK COUNTY CLERK 10/16/ /23/ :34 02:08 PM INDEX NO /2016 NYSCEF DOC. NO RECEIVED NYSCEF: 10/16/ /23/2017 NEW YORK COUNTY PRESENT: HON. CARMEN VICTORIA ST. GEORGE PART 34 Justice JODI KNOX a/k/a JODI MCGINNIS, INDEX NO MOTION DATE 08/10/2017 -v- ~ MOTION SEQ. NO. 004 ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, FREDMAN BAKEN & KOSAN, LLP,. '( Defendants. The following papers were read on this PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits.:.. Exhibits Rep~ngAffidavtts In this legal malpractice action, defendant Fredman Baken & Kosan, LLP (FBK) moves for dismissal under CPLR 3211 (a) (1), (4), (5), and (7). The papers in support show that plaintiff alleged essentially the same facts as she had in her counterclaim in Fredman, Baken & Kosan, LLP v McGinnis (Sup Ct, Westchester County, Giacomo, J., index No /2015). Moreover, contrary to plaintiff's contention, the Westchester Court's January 11, 2017 decision in that case denied plaintiff's cross-motion to amend her answer to include negligence/legal malpractice and breach of fiduciary duty on substantive grounds, as it found "even accepting every allegation of the proposed amended answer as true, defendant cannot establish a negligence or breach of fiduciary duty claim against plaintiff" (Id, January 11, 2017, at *3). Plaintiff cannot bring an action against FBK here on the same grounds that the Westchester Court expressly rejected (See Paramount Pictures Corp. v Allianz Risk Transfer AG, 141 AD3d 464 [1st Dept 2016] [adjudication on the merits bars relitigating issue in other actions]); Harley v Kawkins, 281 AD2d 593, 594 [2nd Dept 2001] [plaintiff's second action for legal malpractice disµiissed even with respect to additional claims, as they could have been raised in first action]). Plaintiff's arguments to the contrary lack merit. The Court does not address plaintiff's letter or FBK's response, as Justice Billings already rejected plaintiff's contentions regarding counsel's fraud when she heard oral argument. Accordingly, it is 01,U)ERED and ADJUDGED that motion sequence 004 is granted, the action is severed and dismissed as to FBK, and the caption is amended accordingly. DATED: 1. CHECK ONE: CHECK AS APPROPRIATE:... MOTION IS 3. CH~CK IF APPROPRIATE: of 131

12 COUNTY OF NEW YORK Index No /2016 JODI KNOX, a/k/a JODI MCGINNIS, PRE-ARGUMENT STATEMENT ARONSON, MAYEFSKY & SLOAN, LLP, KAREN ROBARGE, Defendants. 1. The title of the action was Jodi Knox, a/k/a Jodi McGinnis v. Aronson, Mayefsky & Sloan, Karen Robarge, and Fredman Baken & Kosan, LLP. 2. The names of the parties were: a. Plaintiff Jodi Knox, a/k/a Jodi McGinnis; b. Defendants: i. Aronson, Mayefsky & Sloan, ii. iii. Karen Robarge Fredman Baken & Kosan, LLP. Fredman Baken & Kosan, LLP ceased to be a Defendant as a result of the decision being appealed from. 3. The counsel for the Appellant is: Richard Pu, Esq. (212) (o). 4. The counsel for the Respondent is: 12 of 13

13 Lisa Shrewsberry, Esq. Traub Lieberman Straus & Shrewsberry Mid-Westchester Executive Park Seven Skyline Drive Hawthorne, NY (914) The appeal is being taken from the Supreme Court, New York County. 6. The nature of the cause of action against Respondent was legal malpractice. 7. The court below dismissed the action as to Respondent. 8. The grounds for seeking reversal is that a decision in another action had no res judicata or collateral estoppel effect because it was not on the merits. Dated: New York, NY October 23, 2017 Richard Pu (212) (o) 2 13 of 13