By Joseph Ax
NEW YORK, Jan 17 (Reuters) - A divided New York appeals
court on Thursday threw out a $10 million lawsuit against law
firm Greenberg Traurig and partner Leslie Corwin that alleged he
lied about the authenticity of a key document that was
eventually set on fire.
In a 3-2 decision, the Appellate Division, First Department,
reversed Manhattan Supreme Court Justice Shirley Kornreich and
granted the firm's request to have the case dismissed because it
was filed after the three-year statute of limitations had
"Plaintiff was aware of the basic facts relative to
defendants' alleged deceit more than three years before this
action was commenced," the majority wrote in an unsigned
Two justices dissented, saying the majority erred in
determining when the three-year time limit should have
The plaintiff, James Melcher, sued Greenberg Traurig and
Corwin in connection with a breach of contract case he is
litigating against his former employer, Apollo Management, over
a share of profits he claims he is owed. Corwin represents
Apollo in that dispute.
According to Melcher's complaint, in 2004 Corwin told him
and his lawyer, Jeffrey Jannuzzo, that his case against Apollo
lacked merit because an amendment to Apollo's operating
agreement had significantly reduced his profit share.
Corwin vouched for the authenticity of the document,
claiming he had spoken with Jack Governale, the lawyer who
allegedly drafted it. Melcher requested a copy of the amendment
so that he could have it analyzed by an ink expert to determine
whether it was authentic.
Within days, an Apollo executive told Corwin he had
accidentally set fire to the two-page document while making tea,
burning the top page and singeing the bottom of the second page,
according to Melcher's lawsuit.
Corwin did not disclose the burning of the document to
Melcher or the trial court, the lawsuit claims. In a letter
dated March 20, 2004, Jannuzzo complained that Corwin had
engaged in the "concealment of material facts and misleading
The majority found that the three-year time frame should
have commenced at the time of the letter, because it was clear
Jannuzzo was aware of the alleged deceit. Since the lawsuit
against Greenberg was filed on June 25, 2007, it exceeded the
statute of limitations, the majority said.
But in his dissent, Justice Nelson Roman said the three-year
limit should not have started until Jannuzzo could claim he was
certain Corwin had lied explicitly, as opposed to simply had
In the complaint, Jannuzzo said he did not realize Corwin's
assertions were untrue until Dec. 7, 2005, when he deposed
Governale, the lawyer who supposedly drafted the amendment, and
learned that Governale had no record or memory of doing so.
"Specifically, it was on that date that the realization that
plaintiff had been deceived by Corwin occurred," wrote Roman,
who was joined in dissent by Justice Helen Freedman.
In a statement, Jannuzzo said he would appeal the ruling to
the Court of Appeals and would argue that the statute of
limitations for lawsuits against other attorneys should not
begin until the underlying case has ended.
"The majority's rationale was that your time to sue opposing
counsel starts running as soon as you even suspect he has
committed deceit," Jannuzzo said.
In a statement, a Greenberg spokesman said the "allegations
in the complaint have no merit" and the firm was pleased with
The majority panel included Presiding Justice Luis Gonzalez
and Justices David Saxe and Leland DeGrasse.
The case is Melcher v. Greenberg Traurig, Appellate
Division, First Department, No. 8207.
For Melcher: Jeffrey Jannuzzo.
For Greenberg Traurig: Roy Reardon of Simpson Thatcher &
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