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A Staten Island judge has thrown out a small claims action over a broken furnace filed by the buyer of a house against the seller’s attorney. Civil Court Judge Philip P. Straniere ( See Profile) commended the claimant for admitting that after he learned that the seller had moved out of state, he pursued the action against the seller’s attorney pursuant to his own attorney’s advice. His own attorney denies that claim. The judge nonetheless dismissed the action and scheduled a hearing to determine the damages, if any, from the claimant’s frivolous action. “This is another case of what appears to be a disturbing trend of litigation being brought by persons suing attorneys who did not represent them for that attorney’s proper representation of his or her client,” Judge Straniere wrote in DeFelice v. Costagliola, 81/09. “The theory behind bringing these baseless legal actions being that owing to the small amount of money involved, the lawyer would pay the claim rather than engage in the cost of litigation.” The Richmond County Supreme Court decision appears on page of the print edition of today’s law Journal. Pro se claimant Joseph DeFelice purchased a house in Rossville, Staten Island, in December 2008 from seller Catherine Able, who was represented by solo-practitioner Jon Costagliola. After Mr. DeFelice spent $2,250 to fix and then replace a broken furnace, he initiated a small claims action not against Ms. Able, but rather against Mr. Costagliola. Finding no legal basis for the claim, Judge Straniere dismissed the action. “Defendant has no personal liability for the actions or inactions of his client,” the judge concluded. “Defendant is not a stakeholder pursuant to an escrow agreement nor did he personally promise to perform any obligations for his client. This suit is completely baseless.” The judge instead granted Mr. Costagliola’s counterclaim seeking damages. He set a hearing for July 30 to determine the amount of damages, if any. Reached by phone, Mr. Costagliola said he would seek approximately $1,000. “The court commends the claimant for being honest and forthright admitting that his attorney suggested that he bring this suit, however, there are consequences of his actions,” Judge Straniere wrote. “Defendant was required to incur the expense of hiring an attorney to represent him in this matter and was subjected to public ridicule as a defendant in a crowded small claims courtroom in regard to an alleged breach of contract arising from his work as an attorney.” The attorney who represented Mr. DeFelice in the purchase of his home denied that he counseled Mr. DeFelice to sue Mr. Costagliola. Robert E. Brown, a solo practitioner with offices in Manhattan and Staten Island, said that he did not appear at the small claims action and was never contacted by the court. Asked last week if he advised his former client to sue the opposing counsel, Mr. Brown said, “Absolutely, positively not. I’m a thousand percent positive that I did not tell him to sue the lawyer. Why would I?” Mr. Costagliola was represented by Vincent Gallo, of Staten Island. @

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