The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, and 60 were read on this motion by plaintiffs to DISMISS AFFIRMATIVE DEFENSE & COUNTERCLAIMS. DECISION + ORDER ON MOTION Upon the foregoing documents, the plaintiffs’ motion to dismiss the sixth affirmative defense and defendants’ three counterclaims for attorney malpractice, indemnification, and unjust enrichment, is granted in part and denied in part, in accordance with the following memorandum. Background In this action, which arises out of an arbitration leading to an award issued in favor of plaintiffs and against defendant Monna Lissa, LLC (“Monna Lisa”), plaintiffs allege that defendants Iancu Bindela and Michael Pagliuca, the members of Monna Lissa, rendered Monna Lissa insolvent in order to defraud plaintiffs. Plaintiff now seeks, effectively, to impute the arbitration award, which was confirmed by this court per the order of Hon. Melissa A. Crane on April 25, 2020 (NYSCEF Doc. No. 51), against the remaining defendants, by piercing Monna Lissa’s corporate veil and reaching its individual members, or by alleging fraudulent transfers. This matter was initially brought on February 28, 2020, by plaintiffs’ motion for summary judgment in lieu of complaint (NYSCEF Doc. Nos. 1, 2). In a decision and order dated December 7, 2020, the court denied the motion, on the grounds that plaintiff was not suing on a judgment or an instrument for the payment of money only (NYSCEF Doc. No. 27). The court then directed plaintiffs to file a formal complaint against defendants (id. at 2). Plaintiffs did so, prompting an answer and counterclaims from defendants. Relevant to the instant motion practice, defendants allege as a sixth affirmative defense that Monna Lissa is entitled to a set-off against plaintiffs. In addition, defendants allege that plaintiff Paul Sabaj, who acted as attorney for all of the parties in forming Monna Lissa and then plaintiff 457 Warburton Ave, LLC (“457″),1 committed malpractice through unlawful self-dealing, and failing to advise defendants Bindela and Pagliuca of their right to independent counsel before setting up 457. Defendants further assert that Sabaj is obligated to indemnify them for any of 457′s damages. Finally, defendants claim that Bindela, his company, and Pagliuca did substantial work renovating the property located at 457 Warburton Avenue, Hastings on Hudson, New York, for which they have not been compensated, and from which plaintiffs profited by the increased sale price garnered for the property. Standard of Review “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction” (Leon v. Martinez, 84 NY2d 83, 87 [1994]). “[The court] accept[s] the facts as alleged in the [pleading] as true, accord[ing the nonmovant] the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory” (id. at 87-88). Ambiguous allegations must be resolved in the nonmovant’s favor (JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). “The motion must be denied if from the pleadings’ four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002] [internal citations omitted]). “[W]here…the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration” (Ullmann v. Norma Kamali, Inc., 207 AD2d 691, 692 [1st Dept 1994]). Discussion Set-Off Turning first to the sixth affirmative defense of a set-off, plaintiffs correctly argue that Monna Lissa is barred by res judicata from revisiting the amount owed plaintiffs. “The doctrine of res judicata bars the litigation of a claim or defense if, in a former litigation between the parties…in which there was a final conclusion, the subject matter and the causes of action are identical or substantially identical” (Williams v. City of Yonkers, 160 AD3d 1017, 1018 [2d Dept 2018]). “[R]es judicata applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation” (Pitcock v. Kasowitz, Benson, Torres & Friedman, LLP, 80 AD3d 453, 454 [1st Dept], lv denied 16 NY3d 711 [2011]). “The doctrines of res judicata and collateral estoppel are applicable to arbitration awards” (Waverly Mews Corp. v. Waverly Stores Assocs., 294 AD2d 130, 132 [1st Dept 2002]). The arbitration award that resolved the arbitration proceeding states that it “is in full settlement of all claims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied” (arbitration award, NYSCEF Doc. No. 52). Based on that express proviso, if Monna Lissa had raised its set-off defense in the arbitration proceeding, it was necessarily denied. If, on the other hand, Monna Lissa did not raise its set-off defense in the arbitration proceeding, then it would be barred just the same as a claim that could have been raised in the arbitration (Pitcock, 80 AD3d at 454). Defendants implicitly concede this by acknowledging the arbitration award; but stating that they should be able to maintain a set-off defense because plaintiffs are “relitigat[ing] the previously arbitrated claim in this forum” (Cascione affirmation, NYSCEF Doc. No. 57, 15). A review of the complaint shows that this is not the case. The instant action, per the complaint, does not seek to relitigate the arbitration. Rather, the complaint seeks to impute the already-confirmed arbitration award to the individual members of Monna Lissa on account of alleged debtor/creditor fraud. This action in no way seeks to relitigate the arbitration. Accordingly, plaintiffs are entitled to dismissal of the sixth affirmative defense. Legal Malpractice Plaintiffs argue that this claim is time-barred, as Sabaj was terminated as of April 25, 2017, and a claim for attorney malpractice has a three-year statute of limitations (CPLR 214[6]), which expired on April 25, 2020.2 The COVID-19 toll in effect from March 20, 2020 (9 NYCRR 8.202.8), through November 3, 2020 (9 NYCRR 8.202.72), extended that time through December 9, 2020. Defendants did not assert their counterclaim for malpractice until January 12, 2021 — after the December 9, 2020, malpractice claim statute of limitations deadline had passed. Thus, Sabaj is correct in his assertion that any malpractice counterclaim against him in this lawsuit is time-barred. The court observes two factors that might have saved defendants’ malpractice claim from the foregoing statute of limitations consequences: (i) the motion for summary judgment in lieu of complaint, which was the functional equivalent of a complaint, was filed February 28, 2020, within the defendants’ malpractice claim limitations period (ending December 9, 2020); and (ii) even though defendants’ malpractice claim would ordinarily have been barred by January 12, 2021 (the date their counterclaim was filed), as long as it was viable when the action commenced (February 28, 2020), it would have been deemed timely on January 12, 2021, by virtue of CPLR 203 (d) which provides that a “defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed.” This would have been a way to reach a conclusion that the January 12, 2021, malpractice counterclaim was timely even though, absent its nature as a counterclaim, it would have expired naturally, as a claim-in-chief, on December 9, 2020. However, defendants are unable to avail themselves of this procedural advantage for the following reason. CPLR 3213 provides that “[i]f the motion [for summary judgment in lieu of complaint] is denied, the moving and answering papers shall be deemed the complaint and answer, unless the court orders otherwise” (emphasis added). In this case, this court’s decision and order denying the motion (NYSCEF Doc. No. 27) expressly “ order[ed] otherwise” (CPLR 3213) by directing plaintiffs to file a separate complaint (NYSCEF Doc. No. 27 at 2). The plaintiffs, in fact, did so on January 7, 2021, prompting defendants’ answer with counterclaims (including a malpractice counterclaim) on January 12, 2021. But in this instance, where this court did not convert the motion into a plenary action by deeming the motion papers as a complaint; but rather, directed the filing of a plenary complaint, defendants cannot take advantage of CPLR 203 (d)’s relationback provision because, as explained in the Practice Commentaries on CPLR 3213, the motion’s denial with direction to file a complaint effectively nullifies the initiatory effect of the motion papers, and the complaint is viewed as a new initiatory filing bringing to bear all the risks of statute of limitations analysis anew. As the Practice Commentaries make clear, once a court opts for the filing of a plenary complaint as opposed to converting the motion to complaint status, any claim which would have naturally expired as of the time of the denial of the motion would remain so within the procedural context of the new complaint (see, David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:11 ["Effect of Denial; Conversion to Action; Dismissal"], C3213:19 ["Statute of Limitations Problems"] [2005 ed]). Thus, any relation-back benefit available to the defendants while the motion was pending, as such, pursuant to CPLR 203 (d), was lost once the motion was denied on December 7, 2020, and a new initiatory pleading by way of complaint was ordered to be filed. Although defendants still had two days — till December 9, 2020 — to commence their own action for malpractice against Sabaj, they did not, and waited to pursue the claim by way of counterclaim in response to the January 7, 2021, complaint. The malpractice claim was stale by that point in time.3 Thus, the counterclaim for legal malpractice is dismissed. Indemnification “Common-law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer” (McCarthy v. Turner Const., Inc., 17 NY3d 369, 375 [2011] [internal quotation marks and citation omitted]). “A party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part” (id. at 377-378). Here, defendants are alleged to have impoverished Monna Lissa in an effort to defraud plaintiffs and prevent them from collecting on their judgment. It would be impossible for defendants to be liable for such conduct solely by operation of law, and, therefore, the counterclaim for indemnification is dismissed. Unjust Enrichment Defendants Bindela, Pagliuca, and Bindela Construction LLC assert that, separate and apart from their connection to Monna Lissa, they “performed valuable services for the improvements of the property at 457 Warburton Avenue in their capacity as contractors, separate and distinct from their capacity as members of Monna Lissa,” for which they have not been fairly compensated by plaintiffs (answer, NYSCEF Doc. No. 42,
