The motion by the defendant for an order dismissing the complaint pursuant to CPLR 3211[a][1] or [7], is determined as follows:

The court notes that by order dated February 1, 2012, the motion was converted into a motion for summary judgment. Counsel for the parties were given additional time to submit any further evidence in support of their positions that they deemed necessary.

The plaintiffs seek a declaration that the defendant, Great Neck Teachers Association Benefit Trust Fund (GNTA), is a "law firm" as defined in the Rules of Professional Conduct and as a result claim that they are entitled to damages, compensatory and punitive, based upon GNTA's alleged violation of various rules of professional conduct. The plaintiffs seek treble damages pursuant to Judiciary Law § [*2]487.

The GNTA is fund set up for the benefit of enrolled teachers and provides legal representation benefits to members for certain types of legal matters. The benefit booklet explains the benefits provided by the fund as follows, in pertinent part:

You will provided with an attorney from the panel law firm selected by Benefit Trust Fund. This firm will provide the covered member with the benefits of the Benefit Trust Fund. Your relationship with this law firm will be that of attorney and client. The attorney-client relationship will be exclusively between the covered member and the law firm. No member of the Fund, or any Trustee of the fund, can interfere in this relationship.

The fund is designed to help pay for covered legal services. While the fund cannot pay for all legal costs incurred, it will help meet a substantial amount of such costs. You should explore, with an attorney of the panel law firm, the cost involved for any problem for which you seek help so that you and the law firm will have a working concept of what services are covered as well as what you will have to pay yourself. Remember, however, that it is not always possible to estimate total costs. When, after general consultation with the panel law firm, you decide to retain the panel law firm, you will then be requested to make initial appropriate payment as indicated in the plan of benefits.

You are not compelled to use the plan provided by the Fund. You are free at all

times to select an attorney of your own choosing and make payment to such an attorney for services. However, the Fund will not absorb or be responsible for any part of the fees or charges of attorneys other than those representing law firms on the panel of the Fund.

A covered member is also free at any time to discontinue the services of the panel law firm and, if he/she desires, to secure the services of a non-panel attorney. However, in such an event, the Fund will neither be responsible for nor absorb any part of the fees or charges of such other attorneys. In addition, the covered member continues to be obliged to the panel law firm for any cost already incurred above the scheduled amount.

The panel law firm may, under exceptional circumstances, at any time (as is customary in the case of the independent retention of private attorneys) not undertake, discontinue or withdraw from representation of any covered member with appropriate adjustment of fees. In such cases, the covered member is free to secure his/her own counsel. However, the Fund will neither absorb nor be responsible for any of the fees or charges of a non-panel attorney. (emphasis added).

The Amended and Restated Agreement and Declaration of Trust provides the benefits and powers of the trustees in determining allocation of benefits as follows, in pertinent part:

Section 8.2 [*3]

The nature of the benefits to be provided hereunder, the manner of securing and administering such benefits, the terms and conditions for the payment of such benefits, and all other matters pertaining to such benefits shall be established, maintained, modified, or terminated solely and exclusively by the Trustees hereunder in their final and absolute judgment and discretion, and their action with respect thereto, shall be binding upon the Association, the District, the employees and their families, dependents, beneficiaries and/or legal representatives.

The plaintiff, Meryl A. Rosenblum is a teacher in the Great Neck School District and therefore is entitled to receive the benefits of the trust. Apparently, a construction project at the plaintiffs' residence resulted in several lawsuits filed against them. Ms. Rosenblum sought coverage for her legal services and it was provided for four (4) of the lawsuits. Between 2008 and 2009, the law firm of Mirkin & Gordon, P.C. (M & G), began representing the plaintiffs in those actions. In late 2009, the plaintiffs requested coverage for two(2) more construction related lawsuits and the request was granted by GNTA. Thereafter disputes arose between the plaintiffs and M & G, ultimately resulting in M & G seeking leave to withdraw as counsel in all six (6) matters. All motions were granted. The plaintiffs then sought coverage to hire a new attorney to represent them and the request was denied.

The plaintiffs entire complaint hinges on the erroneous belief that the GNTA is a considered a "law firm" under the Rules of Professional Conduct. Rule 1.0 of the Rules of Professional Conduct [22 NYCRR §1200], provides the definition of a "Law Firm" for purposes of the code:

(h) "Firm" or "law firm" includes, but is not limited to, a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a qualified legal assistance organization, a government law office, or the legal department of a corporation or other organization.

A plain reading of the definition demonstrates that it is the lawyer who is covered under the definition, not an organization that makes referrals to a panel of lawyers. The GNTA is not authorized to practice law and is not made up of lawyers, therefore the Rules of Professional Conduct do not apply. Accordingly, the plaintiffs' entire premise for the present action cannot stand.

To the extent that the plaintiffs claim they are contractually entitled to the assignment of counsel by GNTA, that claim is belied by the terms of the fund benefits booklet which clearly states that the provision of counsel is solely in the discretion of the trustees of the fund.

Finally, the plaintiffs claim that Justice Warshawsky's decision in the underlying action entitled Bridlewood v Rosenblum, which mentioned in dicta that the plaintiffs could bring a separate plenary action against GNTA, has collateral estoppel effect mandating that the present declaratory judgment action is valid. This contention is meritless. The doctrine of collateral estoppel precludes a party from relitigating an issue clearly raised in a prior litigation and decided against a party who had a full and fair opportunity to litigate the issue (see Storman v Storman, 90 AD3d 895 [2d Dept. [*4]2011]). Here, the validity of the plaintiffs causes of action against GNTA were never decided by Justice Warshawsky and GNTA did not have a full and fair opportunity to litigate the issues since it was not a party in the Bridlewood action.

Accordingly, the motion is granted and because this is in part a declaratory action, on the plaintiffs' first cause of action the court hereby declares that GNTA is not obligated to provide the plaintiffs with legal representation in the underlying construction litigations. The second cause of action pursuant to Judiciary Law §487 is dismissed.

This constitutes the decision and order of the court.

Dated: June 25, 2012

Angela G. Iannacci, J.S.C.