Joseph L. Francoeur

​Joseph Francoeur (Partner–New York) and Eve Mouzouris (Of Counsel–New York) obtained dismissal of an amended complaint asserting violations of the Fair Debt Collection Practices Act, N.Y. General Business Law § 349, N.Y. Judiciary Law § 487, RICO, negligence, gross negligence, legal malpractice, unjust enrichment, prima facie tort, and conversion. The complaint, filed in the United States District Court for the Eastern District of New York, arose out of an underlying 2009 foreclosure action that was litigated over a ten-year period. Plaintiff brought the federal action on behalf of herself and a purported class of similarly situated New York residents. Our client represented the bank in the underlying foreclosure action, involving a mortgage held by the plaintiff on a property in Queens, New York. At the crux of plaintiff's suit were allegations that our client and the bank were engaged in a fraudulent scheme to miscalculate interest due and owing on a residential mortgage to obtain vastly inflated payouts from court-ordered foreclosure sales. Contrary to plaintiff's claims, the methodology utilized by our client for applying interest in the underlying foreclosure action was consistent with long-standing practices in the legal community and had been approved by referees and judges in a myriad of cases. Indeed, the methodology was approved in the underlying action and was not challenged by plaintiff or her counsel, despite multiple opportunities to do so.

We filed a pre-answer motion to dismiss, arguing that plaintiff's claims should be dismissed in their entirety on various procedural and substantive grounds. The Court issued a comprehensive decision addressing plaintiff's claims and concluded, as we had asserted, that all of them were time-barred. Critically, the Court credited our position that plaintiff herself conceded all causes of action began accruing on September 12, 2019 – the filing date of the Referee's Report of Sale – yet she did not commence this action until April 3, 2025, well beyond the applicable limitation periods for each claim. The Court further rejected plaintiff's equitable tolling arguments, finding that she failed to plead any affirmative acts of concealment by the law firm, that the interest calculations she challenged were publicly filed and disclosed on the record, and that she failed to allege any steps she took to exercise reasonable diligence in discovering her claims.
 
The Court also adopted our position that collateral estoppel independently barred plaintiff's various claims, holding that they rested entirely on allegations that the law firm filed fraudulent or deceptive documentation containing interest miscalculations in the underlying state court foreclosure action – issues the state court had already resolved against plaintiff when it determined the interest calculations and foreclosure were valid. Although the Court found that plaintiff's Judiciary Law § 487 claim was not barred by collateral estoppel because the question of the law firm's intent to deceive had not been previously litigated, that claim was nevertheless dismissed as time-barred.

Joseph Francoeur (Partner-New York) and Hayley Weisman (Associate-New York) obtained early dismissal of a fraud claim in the Kings County Supreme Court, Brooklyn, New York, against an attorney who represented the plaintiff’s ex-wife at the closing of the sale of the former marital residence. The plaintiff alleged that the attorney fraudulently transferred the property in 2013 without his knowledge or consent, invoking the two-year discovery rule to revive the otherwise time-barred claim and asserting he first learned of the purported fraud in 2024. Joe and Hayley filed a pre-answer motion to dismiss the complaint, arguing the plaintiff’s claim was barred by the statute of limitations and citing a 2015 New Jersey Family Court filing in which the plaintiff sought judicial intervention regarding the distribution of the sale proceeds – demonstrating he knew of the sale and could have discovered the purported fraud at that time. In arguing the motion, Hayley directed the court to the judgment of divorce, which granted the ex-wife a receivership over the plaintiffs’ interest in the property – a key fact that undermined the fraud claim entirely. The court agreed, holding that the plaintiff was on notice of the title transfer and the sale, that the discovery rule did not apply, and that the claim was time-barred. The court granted Wilson Elser’s motion and dismissed the complaint.

Joseph Francoeur (Partner-New York, NY) achieved early dismissal of a legal malpractice claim filed against a Florida attorney who represented a lessor in lease negotiations for a property in New Jersey. The plaintiff, the non-client lessee, alleged that the attorney failed to advise of the terms of an accompanying easement at the time of the lease negotiations, and filed a lawsuit against the attorney and various other parties, including its own attorney, in New Jersey State Court. Joe filed a pre-answer motion to dismiss, arguing that as the attorney did not represent the plaintiff in the lease negotiations there is no duty owed to the non-client. The plaintiff opposed the motion claiming reliance on the attorney’s representations regarding the easement terms and further claimed that the attorney engaged in the unauthorized practice of law within New Jersey. Joe responded by asserting that at the time of the lease negotiations plaintiff and its attorney had actual knowledge of the terms of the easement and further that there was no unauthorized practice of law as the attorney worked with local New Jersey counsel throughout the negotiations and subsequent drafting of the lease. The court agreed with each of Joe’s arguments finding that the attorney does not owe any duty to the non-client plaintiff and that the attorney did not engage in the unauthorized practice of law. Accordingly, the court granted Joe’s motion dismissing the complaint. 

Joseph Francoeur (Partner-New York, NY), Otis Felder (Partner-Los Angeles, CA), and Ronald Weiner (Of Counsel-New York, NY) obtained dismissal in defending a local Hawai‘i attorney in a significant ruling issued by the U.S. District Court for the District of Hawai‘i. In this high-profile lawsuit, under litigation since 2018, brought by the plaintiff against a large Medical Center and several other Hawai‘i-based medical providers, donor organizations, and attorneys, the court dismissed the action, except for a potential claim against the plaintiff’s own counsel. The case stemmed from the 2016 death of the plaintiff’s daughter and subsequent organ donation procedures. The court granted the defendants’ motions to dismiss, ruling that all claims were barred by the statute of limitations or otherwise legally insufficient. The court also issued an order to show cause, requiring the plaintiff to provide additional information to support her malpractice claim by October 20, 2025, or face dismissal of the entire case. With this ruling, all claims against the medical providers, hospital, donor organizations, government entities, and opposing counsel are concluded. The only remaining avenue for the plaintiff is to pursue a properly supported malpractice claim against her former attorney.

Melissa Young (Associate-New York, NY) and Joseph Francoeur (Partner-New York, NY) recently achieved early dismissal of fraud and negligence claims filed against a title company that had arranged a closing for a mortgage loan and transfer of partial ownership in residential premises located in Queens, New York. The plaintiff alleged she was the sole owner of the transferred premises for 30+ years prior to the closing, and that such premises had been free and clear of any encumbrances – until two of the co-defendants (private individuals / neighborhood acquaintances) allegedly impersonated the plaintiff at the closing, added themselves to the deed, took out a $500,000 mortgage in the plaintiff’s name, and absconded with the mortgage proceeds. Further, plaintiff alleged she did not attend the closing and never consented to take out a mortgage loan or transfer her property. The plaintiff filed a lawsuit against all parties involved in the closing, including the two alleged fraudsters, the mortgage lender, the closing agent who notarized the borrower’s signature at the closing, and the title company. Melissa and Joe argued that the title company did not owe a duty to the plaintiff as the title company was retained by the lender, not the plaintiff, and in the absence of fraud or conversion the title company could not be held liable for negligence. With respect to the fraud claims, Melissa and Joe further argued that the allegations of the proposed amended complaint were based purely on conjecture and speculation, and that such amended pleading was devoid of any facts to substantiate the plaintiff’s claims. The court agreed that both the complaint and the proposed amended complaint lacked sufficient factual allegations to support any causes of action against the title company and granted Melissa and Joe’s motion, while denying plaintiff’s cross-motion to amend.

Joseph Francoeur (Partner-New York, NY) and Eve Mouzouris (Associate-New York, NY) obtained dismissal in New York County Supreme Court on behalf of an insurance broker in a million-dollar third-party action alleging negligence, breach of contract and special relationship. Our client broker procured coverage for an owner of three attached buildings located in Queens County. When a fire caused significant damage, the owner made a claim to the insurance carrier that was denied in part and coverage of one of the attached buildings was limited to 2,146 square feet. The owner brought a third-party action claiming that its damaged property was significantly larger and therefore the coverage procured by the broker was inadequate. We filed a pre-answer motion to dismiss based on documentary evidence stating that not only was the property description provided to the carrier correct because it was obtained directly from the owner but that all public records reflected 2,146 square feet. Any additional square footage, Joe and Eve argued, was due to an unlawful addition constructed by the owner of which the city had no knowledge, essentially amounting to insurance fraud. The court agreed, striking down the owner’s reliance on an e-mail in which it is stated that the broker procured “adequate” coverage and declaring such language does not support a breach of contract or negligence claim. Finally, the court highlighted that in its opposition, the owner did not deny that it originally represented that the subject premises was 2,146 square feet or claim that the number it submitted was in error. 

Joseph Francoeur (Partner-New York) and Melissa Young (Associate-New York) obtained dismissal of all claims asserted against their client, an insurance broker, upon submission of a pre-answer cross-motion to dismiss based on documentary evidence. The plaintiff, a home improvement business specializing in the installation of residential exterior products, alleged that our client failed to obtain adequate insurance to cover a claim arising from the plaintiff’s snow and ice removal business. In the underlying slip-and-fall accident case, the plaintiff was named a third-party defendant for allegedly failing to remove snow and ice from a walkway, and submitted its claim to its carrier who denied coverage because the policy did not cover plaintiff’s snow and ice removal business. Melissa and Joe filed an opposition to plaintiff’s Order to Show Cause and a pre-answer cross-motion to dismiss the Complaint against our client as the insurance certificate makes no mention of a snow/ice removal business and conspicuously states that the certificate was issued “as a matter of information only and confers no rights upon the certificate holder…” The court entered a Decision and Order dismissing the plaintiff’s Order to Show Cause and granting the above-referenced cross-motion, dismissing all claims against our client. 

Joseph Francoeur (Partner-New York, NY) and Melissa Young (Associate-New York, NY) achieved dismissal of all claims asserted against their client, an insurance broker agency, upon submission of a pre-answer cross-motion to dismiss based on documentary evidence. In the underlying slip-and-fall case, the plaintiff was named as a third-party defendant for allegedly failing to remove snow and ice from a walkway, and submitted the claim to its carrier, which denied coverage because the policy did not cover the plaintiff’s snow and ice removal business. To establish a claim for negligence or breach of contract against an insurance broker, a plaintiff must show that a specific request was made to the broker for the coverage that was not provided in the policy. Plaintiff’s further argued that it reasonably believed its snow and ice removal operation was covered because our client had issued a Certificate of Insurance. New York courts have held that it is unreasonable to rely on an insurance certificate where such certificate contains disclaimer language that the certificate was “issued as a matter of information only and confers no rights upon the certificate holder.” The court agreed with Melissa and Joe’s arguments that the plaintiff never requested coverage for the snow and ice removal business, as evidenced by the application; that the plaintiff failed to allege a special relationship with the broker; and that the conspicuous disclaimer at the top of the insurance certificate negated any reasonable reliance by the plaintiff on the contents of such certificate with respect to coverage.