The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45 were read on this motion to/for DISMISSAL. DECISION ORDER ON MOTION In this legal malpractice matter, defendants Michael Barrows, Esq. and Anthony Capetola, Esq. d/b/a Law Offices of Anthony A. Capetola move pursuant to CPLR 3211(a)(1), (7), and (10) to dismiss plaintiff Dmitry Markov’s complaint. Plaintiff opposes defendants’ motion. BACKGROUND This action arises out of defendant Michael Barrows, Esq.’s representation of plaintiff Dmitry Markov d/b/a Dmitry Markov Coins & Medals in an underlying action, Markov v. Spectrum Group Intern., Inc. (2015 NY Slip Op 30054[U] [Sup Ct, NY County 2015]). Plaintiff retained Barrows to pursue a claim against the seller of a Russian medal, known as a Russian Military Order (the Medal). Plaintiff alleged that at an auction on January 14, 2008, the seller misrepresented that the Medal was encrusted with diamonds, and in reliance thereon, plaintiff purchased the Medal. Plaintiff subsequently learned that the Medal was, in fact, not encrusted with diamonds. On January 6, 2014, just about six years after the plaintiff purchased the medal, plaintiff commenced an action seeking damages for fraud, among other claims, against defendants “Spectrum Group International Inc., Bowers & Merena Auctions, LLC, Stack’s-Bowers Numismatics, LLC, Stack’s Bowers Galleries, Christine Karstedt, Vicken Ycgpariañ and John Doe (fictitious name)” (id. at 25). Stacks, LLC (Stacks) was added as a defendant on January 24, 2014. The court in the underlying case dismissed the case against all the defendants as improper parties except Stacks (NYSCEF # 22 — Order dated January 14, 2015, at 7-8). The court held that plaintiff’s breach of contract and fraud claims against Stacks were not subject to dismissal, finding that “[d]efendants have not submitted any evidence that would refute Markov’s contention of a misrepresentation or of reasonable reliance, as a matter of law” (id. at 6). The Appellate Division, First Department, affirmed (Markov v. Spectrum Grp. Int’l Inc., 136 AD3d 413 [1st Dept 2016]). On June 3, 2016, Stacks moved for summary judgment arguing that the statute of limitations for plaintiff’s remaining claims against Stacks had expired. Another Justice of this court granted Stacks’ motion and dismissed the amended complaint (NYSCEF # 36, Decision and Order of Hon. Charles E. Ramos dated December 13, 2016). The Appellate Division affirmed on May 3, 2018, noting that the lawsuit was commenced without naming Stacks just days before the statute of limitations expired (NYSCEF # 37). In the instant matter, plaintiff alleges that Barrows was aware that Stacks was the proper defendant prior to filing the complaint in the underlying action but failed to timely add Stacks as a defendant and negligently relied on CPLR 1024 (NYSCEF # 16 — Complaint,
27-30, 62). Plaintiff also alleges that on December 27, 2013, he informed Barrows by email that Stacks was the proper defendant, but that Barrows failed to amend the complaint as of right, despite the opportunity to do so (id.,
