Plaintiff moves this Court for an Order granting plaintiff summary judgment against defendants Carman and the Carman law firm, and awarding judgment in the amount of $30,000, together with interest and punitive damages (Motion Sequence 1). Defendants Gregory Carman and Carman, Callahan & Ingham, LLP ("the Carman defendants"), who are represented by the defendant law firm, move for summary judgment against plaintiff and dismissal of the complaint against them (Motion Sequence 2).

This action arises from a personal relationship between plaintiff and defendant Azzaro, and the execution of a promissory note and settlement agreement executed upon the demise of that relationship. Although the parties were not legally married, plaintiff had a property interest in Azzaro's home.

It is undisputed that, in 1999, Azzaro granted plaintiff an interest in her Farmingdale home, as a tenant-in-common. When their relationship soured, Azzaro and plaintiff executed a Settlement Agreement and General Release of Claims ("the Agreement") against one another. The Agreement was signed on June 8, 2007, and each of them was represented by counsel at the time. In fact, both plaintiff's counsel and Azzaro's counsel at the time the Agreement was drafted and signed are the same counsel on the instant motion, and Azzaro's counsel is also a named defendant in this action.

It is further undisputed that the Agreement called for plaintiff to execute a deed conveying his fee ownership in Azzaro's home in exchange for Azzaro promising to pay plaintiff $30,000 upon the sale of the property, or in no event later than December 31, 2007. Toward that end, Azzaro executed a promissory note in plaintiff's favor on June 8, 2007 wherein she promised to pay him the $30,000 upon the sale of the property, or in no event later than December 31, 2007. The note specified that the sum is payable without interest.

The Agreement also required plaintiff to pay Azzaro by promissory note "the amount paid by [her] at closing to satisfy the HSBC home equity loan recorded as a second lien against the subject property." The Agreement called for interest to be paid on the note at the rate of eight percent. Plaintiff was also required to make timely payments on the home equity loan until the sale of the subject property.

Plaintiff and Azzaro expressly stipulated in their Agreement that the consideration referred to paragraphs 1 and 2 therein constituted "adequate and ample consideration for the rights and claims they are waiving under this Agreement and for the obligations imposed upon them by virtue of this Agreement." [*2]

Both plaintiff and Azzaro acknowledged in paragraphs 10 and 14 of the Agreement that they each consulted legal counsel before signing it, and that they each had a reasonable period of time within which to consider the settlement. Further, and in the event of a dispute as to "the interpretation, application, or violation" of the Agreement, "[n]either party shall be entitled to an award of compensatory, exemplary, or punitive damages . . . ."

Finally, both parties represented that the Agreement constitutes the entirety of their understanding and that it could not be modified, amended, terminated, or otherwise changed unless done so in writing.

The December 31, 2007 deadline for payment of the $30,000 passed, and the subject premises had not yet been sold as of early 2008.

In January 2008, plaintiff's counsel advised the Carman defendants that Azzaro was in default of her obligation to pay plaintiff the $30,000. Specifically, a default letter dated

January 16, 2008 was sent to the Carman defendants. In a second letter dated January 31, 2008, plaintiff's counsel requested whether Azzaro would consent to the imputation of interest from the date of default.

The Carman defendants responded in a letter dated February 4, 2008. Defendant Gregory W. Carman, Esq. advised plaintiff's counsel that Azzaro would not consent to the imputation of interest, and that "[p]ursuant to the Settlement Agreement entered into by the parties, [plaintiff] will receive the sum of $30,000 upon the sale of the subject premises."

It is this February 4, 2008 letter, which forms the basis for plaintiff's second and third causes of action against the Carman defendants. Plaintiff alleges that the letter was a guarantee that the Carman defendants would pay the $30,000, and that it also constituted a representation relied upon by plaintiff to his detriment. Plaintiff's fourth cause of action alleges tortious interference by the Carman defendants with respect to the contract (the Agreement and promissory note) between plaintiff and Azzaro.

Although plaintiff's counsel referred to "proceedings to enforce the terms of the Note," in several of her letters, no such proceedings were ever commenced by plaintiff, even following the February 4, 2008 letter generated by the Carman defendants.^[FN1]

A contract for the sale of the subject property was executed on or about July 3, 2008, and the subject property was sold on August 26, 2008. Prior to the August 26th closing date, plaintiff's counsel wrote a letter, dated August 14, 2008, to the Carman defendants advising that she [*3]understood that the subject property "may be under contract for sale," and requesting that the Carman defendants confirm that "[plaintiff's] claim in the amount of $30,000 will be paid from the proceeds of the sale." The Carman defendants failed to respond to this letter.

Azzaro executed a durable general power of attorney appointing defendant Gregory W. Carman, Jr. as her attorney-in-fact at the closing. The HUD-1 Settlement Statement from the closing indicates that $177,977.09 cash went to Azzaro as a result of the sale of the subject premises. At the closing, the HSBC home equity loan was paid off from the proceeds of the sale in the amount of $13,350.53. Two signatures appear at the bottom of the HSBC payoff letter authorizing the closing of that home equity credit account upon the payoff. One signature purports to be that of Ann Marie Kirincic ^[FN2] and the other purports to be that of Dennis Anderson (plaintiff).

Plaintiff asserts that he was not present at the closing, and that the signature on the bottom of the HSBC payoff letter was forged in an effort by the Carman defendants to obviate the need for plaintiff to be at the closing and claim the $30,000 due and owing to him.

Although defendant Azzaro has apparently never appeared in this action, plaintiff alleges, and the Carman defendants confirm,^[FN3] that Azzaro has breached the Agreement by failing to pay plaintiff the $30,000 despite the fact that the deadline of December 31, 2007 has passed, and the subject property has been sold. To date, plaintiff has failed to move for a default judgment against Azzaro.

The Carman defendants' verified answer contains only general denials and no affirmative defenses.

It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. (Andre v. Pomeroy, 35 NY2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131 [l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. (Cauthers v. Brite Ideas, LLC, 41 AD3d 755, 837 N.Y.S.2d 594 [2d Dept., 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625, 796 N.Y.S.2d 621 [2d Dept., 2005]).

A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985); Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). [*4]

The Court will first address plaintiff's motion. Plaintiff asserts that the February 4, 2008 letter authored by the Carman defendants to plaintiff's counsel constitutes an agreement, guarantee, or promise to pay plaintiff the $30,000 separate and apart from the Agreement and concomitantly executed promissory note signed by Azzaro on June 8, 2007. In support of his claim, plaintiff relies on the sentence in that letter which reads, "Pursuant to the Settlement Agreement entered into by the parties, Mr. Anderson will receive the sum of $30,000 upon the sale of the subject premises."

To satisfy its burden, plaintiff must submit proof of the existence of the underlying note and the Note executed by defendant, the unconditional terms of repayment and defendant's failure to make payment. (Gera v. All-Pro Athletics., Inc., 57 AD3d 726, 870 N.Y.S.2d 87 (2d Dept., 2008); Famolaro v. Crest Offset, Inc., 24 AD3d 604, 807 N.Y.S.2d 387 [2d Dept., 2005]). Plaintiff has not satisfied its burden.

Plaintiff's attempt to subvert communication between counsel into a legal obligation by counsel to guarantee the debts of his client is specious. The February 4, 2008 letter is nothing more than a response to plaintiff's request for interest, and a brief restatement of the terms of the promissory note executed by Azzaro on June 8, 2007.

The letter in question is not a promissory note executed by the Carman defendants. Defendant Azzaro is the only defendant who executed a promissory note for the $30,000 that plaintiff seeks. As of June 8, 2007, Azzaro was bound to pay plaintiff $30,000. Furthermore, the parties to the Settlement Agreement were plaintiff and Azzaro, not the Carman defendants. In that Agreement, it is explicitly stated that the Agreement constitutes the entirety of their understanding and that it could not be modified, amended, terminated, or otherwise changed unless done so in writing.

The February 4th letter between opposing counsel does nothing to change the Agreement, or alter its terms and obligations in any way. Inasmuch as stipulations of settlement are judicially favored by the courts (Wil Can Group, Inc. v. Zhang, 73 AD3d 1166, 903 N.Y.S.2d 429 [2d Dept., 2010]), the most that the February 4th letter can be said to have done is to "re-bind" Azzaro to her debt.

In view of the fact that plaintiff has failed to sustain his burden with respect to establishing that the letter creates a legal obligation upon the Carman defendants to pay Azzaro's debt, plaintiff's motion for summary judgment is denied.

In support of their motion for summary judgment, defendants have submitted virtually the same documents as those submitted by plaintiff upon his motion. Defendants contend that their February 4, 2008 letter does not create any separate obligation on their part to pay the debt of their client, Azzaro. For all of the reasons outlined above, the Court finds that defendants have established their entitlement to summary judgment as a matter of law with respect to the second cause of action alleged in the complaint.

Plaintiff has not submitted any additional evidence in opposition to defendant's cross-motion [*5]aside from that which it submitted in support of its own summary judgment motion. Thus, plaintiff has failed to raise a triable issue of fact, and defendants' motion for summary judgment is granted. Plaintiff's second cause of action alleged in the complaint is dismissed.

The Court now turns to plaintiff's third cause of action sounding in negligent representation, and finds that plaintiff has failed to meet his burden.

In Prudential Insurance Company of America v. Dewey, Ballantine, Bushby, Palmer & Wood, et. al. (80 NY2d 377, 605 N.E.2d 318, 590 N.Y.S.2d 831 [1992]), a case heavily relied upon by plaintiff, the Court of Appeals held that attorneys may be held liable for economic injury arising from negligent representation; however, "before a party may recover in tort for pecuniary loss sustained as a result of another's negligent misrepresentations there must be a showing that there was either actual privity of contract between the parties or a relationship so close as to approach that of privity. Such a requirement is necessary in order to provide fair and manageable bounds to what otherwise could prove to be limitless liability" (Id. at 382).

In Prudential (supra), the insurance company sought an advisory opinion from the law firm representing the debtor as to the restructuring of a loan. The opinion from the law firm was a requirement of the amendment of the loan restructuring. Furthermore, the opinion letter was drafted by the law firm and delivered to the insurance company at the specific direction of the debtor, who was represented by the firm.

In this case, plaintiff does not claim privity of contract with the Carman defendants. Indeed, plaintiff could not claim such privity as plaintiff was, and still is, represented by Rita Aniano, Esq., while Azzaro was represented by the Carman defendants. Thus, the question is whether the relationship between plaintiff and the Carman defendants approached that of privity.

In this Court's view, there is no reasonable view of the facts as presented in these moving papers that would allow for a determination that the plaintiff and the Carman defendants had a relationship approaching that of privity, such that the Carman defendants owed plaintiff a duty of care. In the first instance, there were no direct dealings between the

Carman defendants and plaintiff. Plaintiff was represented by counsel of his choosing, and plaintiff and Azzaro were adversaries in litigation. Presumably, plaintiff's interests were being served by Ms. Aniano, and defendant Azzaro's competing interests were being served by the Carman defendants. The facts of this case establish quite the opposite of privity by clearly demonstrating that this was a typical adversarial relationship between the parties.

Furthermore, the February 4, 2008 letter authored by Gregory W. Carman, Esq. was not prepared to induce the plaintiff's reliance thereon. Rather, the letter was sent to plaintiff's counsel in response to plaintiff's own counsel's letters threatening legal enforcement of the debt, and requesting Azzaro to consent to the imputation of interest on that debt. Moreover, in August 2008, plaintiff's counsel was still seeking assurance that the $30,000 would be paid from the proceeds of the sale of the subject property. Thus, her claimed reliance on the February 4th letter is belied by her own subsequent letter to the Carman defendants. [*6]

Whether plaintiff's failure to move for a default judgment against Azzaro is an appropriate legal strategy is not for this Court's determination; however, plaintiff's attempt to hold the Carman defendants liable due to plaintiff's own inaction is insufficient to establish plaintiff's entitlement to summary judgment as a matter of law on the third cause of action. Simply put, plaintiff has failed to establish that he had a relationship approaching privity with the Carman defendants such that plaintiff could have reasonably relied to his detriment on the representation made in the February 4th letter. Plaintiff was represented by counsel whose job it was to vigorously protect plaintiff's rights.

In view of the fact that plaintiff has failed to sustain his burden with respect to establishing a relationship that approaches privity with defendants, plaintiff's motion for summary judgment is denied.

Conversely, and for the same reasons, upon the same proof, the Court has determined that defendants have established their entitlement to summary judgment as a matter of law with respect to the third cause of action alleged in the complaint. Plaintiff has not submitted any additional evidence in opposition to defendant's cross-motion aside from that which it submitted in support of its own summary judgment motion. Thus, plaintiff has failed to raise a triable issue of fact, and defendants' motion for summary judgment is granted. Plaintiff's third cause of action alleged in the complaint is dismissed.

Finally, the Court turns to the fourth cause of action alleged in the complaint, which sounds in tortious interference. Specifically, plaintiff claims that the Carman defendants tortiously interfered with plaintiff's contractual rights against Azzaro as delineated in the Agreement and promissory note executed on June 8, 2007.

In order to prevail on a claim of tortious interference with a contract, a party must establish the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, breach of the contract, and damages resulting therefrom (Lama Holding Company v. Smith Barney, Inc., 88 NY2d 413, 668 N.E.2d 1370, 646 N.Y.S.2d 76 (1996); Waste Services, Inc. v. Jamaica Ash & Rubbish Removal Co., Inc., 262 AD2d 401, 691 N.Y.S.2d 150 (2d Dept., 1999); Hoag v. Chancellor, Inc., 246 AD2d 224, 677 N.Y.S.2d 531 [1st Dept., 1998]).

In support of its motion for summary judgment on this cause of action, plaintiff has submitted, inter alia, the contract of sale for the subject premises, which is dated July 3, 2008, the power of attorney executed by Azzaro on August 25, 2008, the closing documents from August 26, 2008, and the HSBC loan payoff document allegedly containing plaintiff's forged signature. Plaintiff has also submitted the August 14, 2008 letter sent by his counsel to the Carman defendants advising that plaintiff understood that the house was in contract for sale.

Based on plaintiff's submissions, there is no question that there was a valid contract(s) (the Agreement and promissory note) between plaintiff and Azzaro. The documents were in writing, having been drafted by Gregory W. Carman, Esq. and plaintiff's counsel, Ms. Aniano. In addition, each party to the Agreement gave consideration for the other's promises. In light of the foregoing, [*7]the Court is perplexed and disturbed by Mr. Carman's statement contained in his reply affidavit claiming that neither plaintiff nor Azzaro "could ever justifiably' rely on this portion of the Settlement Agreement as they never procured any security at all for Ms. Azzaro's Promissory Note save her personal guarantee.'" The Court does not find Mr. Carman's claim to be persuasive. Personal guarantees are routinely used to enforce debt obligations, without the necessity of the posting of security or collateral.

Clearly, as one of the drafters of the Agreement, Gregory Carman, Esq., and his firm by implication, was aware of the existence of the contract between plaintiff and Azzaro. The Carman defendants are also aware of Azzaro's breach, as Mr. Carman candidly admits in paragraph 18 of his reply affidavit. It is undisputed that plaintiff has not received the $30,000 pursuant to the promissory note; thus, it appears that he has been damaged in the amount of $30,000. The only question remaining is whether plaintiff has established as a matter of law that the Carman defendants intentionally procured Azzaro's breach of the contract without justification.

Based on plaintiff's submissions to this Court, which are not controverted by the defendants, Gregory Carman, Esq. and his firm represented Azzaro in connection with the sale of the subject premises. In a letter dated July 1, 2008, Mr. Carman sent two fully executed contracts of sale to the buyers' attorney, indicated that the down payment monies had been deposited in the firm's escrow account, and requested that the buyers' attorney keep him apprised of the progress of the buyers' mortgage application.

Plaintiff's counsel sent the Carman defendants a letter dated August 14, 2008 indicating counsel's understanding that the subject premises were in contract for sale. The Carman defendants do not dispute having received this letter, and they apparently did not respond thereto despite their representation of Azzaro in the sale. In that same August 14th letter, plaintiff's counsel once again requested confirmation that the $30,000 would be paid to her client "from the proceeds of the sale."

On August 25, 2008, Azzaro executed a power of attorney appointing Gregory W. Carman as her attorney-in-fact with respect to the sale of the subject premises. The closing occurred on August 26, 2008, and neither Azzaro, nor plaintiff, were present. According to the settlement statement from the closing, the subject premises were sold for $430,000. After the total reductions in the amount due Azzaro were taken, the net cash amount payable to Azzaro was $177,977.09.

One of the reductions in the amount due Azzaro was the HSBC home equity loan taken by plaintiff, which the parties' Settlement Agreement stipulated would be paid to Azzaro by promissory note. The payoff amount of that home equity loan was $13,350.53.

Both plaintiff and the Carman defendants have submitted the payoff letter containing two signatures at the bottom, under the handwritten directive, "[p]lease close this account immediately upon receipt of payoff funds." Under each signature line is the handwritten date of "8-26-08." The typewritten portion of the HSBC payoff letter is addressed to plaintiff and "Ann Marie Kirincic," at a Bethpage, New York post office box.

In view of the fact that neither plaintiff nor Azzaro were present at the closing, the two signatures appearing on the payoff letter were apparently placed there by someone other than those [*8]two individuals. Plaintiff's purported signature on the payoff letter is radically different in appearance than the signature on plaintiff's affidavit in support of his summary judgment motion. Indeed, plaintiff avers that the signature purporting to be his was placed on the payoff letter without his knowledge or consent. Furthermore, there is no evidence that plaintiff had given anyone power of attorney to sign that HSBC payoff letter.^[FN4]

The Court notes that plaintiff does not directly accuse Gregory W. Carman, Esq. of having signed the payoff letter as plaintiff; however, plaintiff argues that the signature was placed on the document in order to avoid having plaintiff present at the closing, at which time plaintiff would likely have demanded that he be paid the $30,000 owed to him from the proceeds of the sale.

Based on the foregoing evidence establishing the Carman defendants' representation of Azzaro with respect to the sale of the subject premises, and plaintiff's written request that

the debt be paid from the proceeds of the sale twelve days prior to the actual closing, in addition to the disquieting revelation that plaintiff's signature was affixed to a document without his knowledge or consent, this Court finds that a trier of fact could reasonably infer that plaintiff was not informed about the closing by design. Such a critical inference, however, turns on the credibility of the parties to this action, which can only be determined by the trier of fact (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR §3212:6, at 14; Donato v. ELRAC, Inc., 18 AD3d 696, 794 N.Y.S.2d 348 (2d Dept., 2005); Frame v. Markowitz, 125 AD2d 442, 509 N.Y.S.2d 372 (2d Dept., 1986).

The Court notes that the Carman defendants' motion for summary judgment does not directly address the allegations made by plaintiff, and does not admit or deny placing plaintiff's signature on the payoff letter. The Carman defendants also squarely place the blame for the default on Azzaro's shoulders despite the fact that they represented her as attorney-in-fact at the closing. Perhaps in an effort to justify Azzaro's default, Gregory W. Carman, Esq. states in his reply affidavit that Azzaro was forced to expend thousands of dollars to repair the home for sale as a result of damage caused by plaintiff. According to Mr. Carman, he "personally inspected the premises," and claims that Azzaro expended $4,500 to repair the master bathroom, thereby making himself a potential witness in this action.

The Carman defendants' reply affidavit serves to underscore the issues of credibility present in this action, which require the denial of both parties' motions for summary judgment with respect to the fourth cause of action. [*9]

Plaintiff's and the Carman defendants' respective motions for summary judgment as to the fourth cause of action sounding in tortious interference with contract are denied.

Counsel for all parties are directed to appear before this Court on April 27, 2011 for a previously scheduled conference of this matter.

The foregoing constitutes the Order of this Court.

Dated: April 20, 2011

Mineola, NY_________________________________

J. S. C.