Opinion
15 Civ. 8427 (PAC)(HBP)
08-01-2018
ANNE BRYANT, Plaintiff, v. PATRICK J. MONAGHAN, JR., ESQ., et al., Defendants.
REPORT AND RECOMMENDATION
: TO THE HONORABLE PAUL A. CROTTY, United States District Judge,
I. Introduction
Plaintiff Anne Bryant brings this action pro se against her former attorneys, Patrick J. Monaghan and Noel J. Silverman, asserting claims for fraudulent misrepresentation, fraudulent concealment, attorney deceit in violation of New York Judiciary Law § 487, fraud on the court and malpractice (Amended Complaint, dated Mar. 7, 2016 (Docket Item ("D.I.") 23) ("Am. Compl.")). The action has been discontinued with prejudice as to defendant Silverman.
On December 16, 2016, I issued a Report & Recommendation granting in part defendant Monaghan's motion for summary judgment and recommending the dismissal of plaintiff's fraud and deceit claims and two of her four malpractice claims. See Bryant v. Monaghan, 15 Civ. 8427 (PAC)(HBP), 2016 WL 11272143 (S.D.N.Y. Dec. 16, 2016). My Report & Recommendation was adopted by the Honorable Paul A. Crotty, United States District Judge, on March 6, 2017. Bryant v. Monaghan, 15 Civ. 8427 (PAC)(HBP), 2017 WL 887043 (S.D.N.Y. Mar. 06, 2017) (Crotty, D.J.).
Plaintiff and Monaghan have now both moved for summary judgment pursuant to Fed.R.Civ.P. 56 as to the two remaining malpractice claims (See Plaintiff's Notice of Motion for Summary Judgment, dated Oct. 31, 2017 (D.I. 129); Defendant's Notice of Motion for Summary Judgment, dated May 4, 2018 (D.I. 152)).
For the reasons set forth below, I respectfully recommend that both motions be denied. II. Facts and Procedural History
The facts set forth in this section are substantially identical to those set forth in my previous Report & Recommendation. See Bryant v. Monaghan, supra, 2016 WL 11272143. I shall set out any additional facts to the extent they are pertinent to the legal analysis.
In or about June 1983, plaintiff, Ford Kinder and Sarah Aquino started a music production business that operated through a New York corporation named "Kinder, Bryant & Aquino Ltd." ("KBA") (Am. Compl. at 6; Declaration of Patrick J. Monaghan, Jr., Esq., dated Feb. 12, 2016 (D.I. 20) ("Monaghan First Decl.") ¶ 28). In or about 1985, Kinder and plaintiff bought Aquino's share of the business and, as a result, plaintiff believed that the name of the corporation was changed at that time to "Kinder & Bryant Ltd." ("K&B") (Am. Compl. at 6; Monaghan First Decl. ¶ 28). After 1985, Kinder and Bryant operated their business under the name K&B, and opened a bank account in that name (Am. Compl. at 13).
The primary factual basis of plaintiff's Amended Complaint is her alleged discovery in 2012 that the name of the corporation had never been changed, i.e., that KBA "remained a legally viable, operating corporation" and that K&B "was never a legal entity formed by any means, anywhere in the United States" (Am. Compl. at 6-7). Plaintiff alleges that "[u]nknown to [p]laintiff, Kinder Bryant & Aquino Ltd, had remained operational in the background, controlled (in secret) by [p]laintiff's business partner, 'Kinder'" (Am. Compl. at 7 n.3). Thus, plaintiff argues, any contracts or agreements into which she entered with K&B were induced by fraud and are void (Am. Compl. at 13, 17-18, 25). Plaintiff also alleges that she first learned in 2012 that Kinder notified the IRS in 1991 that he had merged KBA with his wholly owned corporation "Kinder & Company Inc." (Am. Compl. at 7).
In 1989, before plaintiff's alleged discovery that KBA's name had not been changed, plaintiff and Kinder entered into an agreement to dissolve their partnership in the company they identified as "Kinder & Bryant Ltd." (Am. Compl. at 13; Agreement, dated Nov. 8, 1989 ("1989 Separation Agreement"), annexed as Ex. A to Complaint, dated October 26, 2015 (D.I. 1) ("Complaint")). The parties to the agreement were plaintiff, Kinder and K&B (1989 Separation Agreement at 1). As part of the agreement, K&B paid $117,187.00 to plaintiff's New York corporation, Square Business Music Productions Ltd. (1989 Separation Agreement at 1, ¶ 3). Plaintiff also asserts that in the two years following the 1989 Separation Agreement, she received "payments (from 'Kinder & Bryant, Ltd.') totaling less than $30,000" (Am. Compl. at 8 n.5). The 1989 Separation Agreement also stated that "Kinder shall cause [Kinder & Bryant Ltd.], expeditiously following the execution of this Agreement, to change its name to any other name designated by Kinder, so long as such new name does not include Bryant's name, initials or otherwise refer to her" (1989 Separation Agreement at 3, ¶ 6). Plaintiff asserts that the 1989 Separation Agreement is void because K&B "never was a 'legal person,' -- a party having no authority and capacity in the agreement -- the 1989 Separation Agreement must be declared Void Ab Initio -- a worthless docu- ment, induced by fraud, that should be set aside" (Am. Compl. at 13).
In or before 1991, plaintiff retained defendant Monaghan to investigate and sue Kinder for allegedly breaching the 1989 Separation Agreement by, among other things, failing to pay plaintiff certain royalties and failing to provide an accounting; with plaintiff's assistance, Monaghan filed a lawsuit on plaintiff's behalf against Kinder in New York State court in 1991 ("1991 N.Y.S. Action") (Am. Compl. at 16). See Bryant v. Kinder, Index No. 8721/91, Complaint, dated Nov. 8, 1991 (N.Y. Sup. Ct. Rockland Co.) ("1991 N.Y.S. Action Complaint") (excerpts annexed as Ex. 9 to Monaghan First Decl. & Ex. K to Complaint). Plaintiff now asserts that this litigation was "frivolous" because the 1989 Separation Agreement was "fraudulent" and that Monaghan should have investigated and discovered the fact that K&B was not an existing entity and pleaded that fact in the 1991 N.Y.S. Action Complaint (Am. Compl. at 16-17). Plaintiff asserts that the 1991 N.Y.S. Action against Kinder "was settled in 1994, based upon an audit of the books of 'Kinder & Bryant Ltd' that indicated minimal receivables" and that as a result, she agreed to a "minimal" reimbursement in the settlement (Am. Compl. at 16). Plaintiff asserts that because K&B was not a legal entity, the settlement was induced by fraud and should be declared void (Am. Compl. at 16).
In 2000, plaintiff again retained Monaghan to sue Kinder (and others) in New York State court, this time to litigate Kinder's alleged breach of the settlement of the 1991 N.Y.S. Action ("2000 N.Y.S. Action") (Am. Compl. at 17). See Bryant v. Broadcast Music Inc., Index No. 5192/00, Complaint (N.Y. Sup. Ct. Rockland Co.) ("2000 N.Y.S. Action Complaint") (excerpts annexed as Ex. L to Complaint). Plaintiff asserts that the complaint in the 2000 N.Y.S. Action also "adopted the misrepresented 'fact'" that K&B was a legal entity, and the fact that K&B entered into an agreement with a music publisher (Sunbow Productions) referred to by plaintiff as the "JEM Agreement" (Am. Compl. at 18-19). Plaintiff asserts that "millions of dollars in fees and reimbursements for production costs were paid by [Sunbow Productions] to the non-entity, 'Kinder & Bryant Ltd.' for the services of Plaintiff's Music Production Business" (Am. Compl. at 21 n.22). Plaintiff asserts that the JEM agreement "cannot be a valid NY contract" (Am. Compl. at 18).
In 2001, plaintiff dismissed her claims against Kinder in the 2000 N.Y.S. Action by filing two documents with the court: a "stipulation of settlement without prejudice" and a "stipulation of discontinuance" ("Stipulation of Settlement Without Prejudice," dated Aug. 16, 2001, Index No. 5192/00 (N.Y. Sup. Ct. Rockland Co.), (D.I. 53-3) ("2001 Settlement with Kinder")). The "stipulation of settlement without prejudice" was signed by plaintiff and Kinder and included the following paragraph entitled "Cooperation":
The Kinder Defendants agree to use their best efforts and to cooperate to provide information, including documentation, on request of plaintiff or her counsel with respect to the pursuit of plaintiff's claims against parties other than the Kinder Defendants. . . . Such cooperation shall include, but not be limited to, meetings, telephone conferences and file review should such be deemed necessary.(2001 Settlement with Kinder).
Thereafter, plaintiff claims, and Monaghan acknowledges, that Monaghan simultaneously represented both plaintiff and Kinder for the remainder of that litigation (Monaghan Rule 56.1 Statement ¶¶ 41-43). Plaintiff alleges this was a conflict of interest and constituted malpractice. In support of this assertion, plaintiff cites to a July 2, 2004 letter agreement sent by Monaghan to Kinder, a copy of which was sent to plaintiff (Am. Compl. at 24, citing Letter to Ford Kinder, dated July 2, 2004, annexed as Ex. S to Complaint ("2004 Letter Agreement")). This letter memorializes plaintiff's right to pursue some of Kinder's claims with respect to certain performance royalties that were at issue in the 2000 N.Y.S. Action (2004 Letter Agreement at 1 ¶ A ("You [Kinder] authorize Anne Bryant and our office to pursue any claims you have with respect to your share of any recovery with respect to the following songs . . .")). It also provides that Kinder would pay Monaghan a contingency fee if he recovered any money on Kinder's claims (2004 Letter Agreement at 3). The letter is initialed by Kinder but not by plaintiff (2004 Letter Agreement at 3). Plaintiff states that this letter reflects "the terms of Attorney Monaghan's representation of Kinder . . . that Plaintiff expressly rejected and would not authorize" (Am. Compl. at 24). Plaintiff alleges that she was harmed by the terms of the 2004 Letter Agreement.
In 2012, after plaintiff discovered that KBA's name had not been changed to K&B and the alleged fraud, she instructed Monaghan to write to the judge presiding over the 2000 N.Y.S. Action and disclose these facts (Am. Compl. at 6-7, n.1-2). Monaghan declined to do so, and against his advice, plaintiff herself wrote a letter to the presiding judge detailing her discoveries (Letter to Hon. Margaret Garvey, J.S.C., dated Sept. 28, 2012, annexed as Ex. C to Complaint; Am. Compl. at 6-7, n.1-2; see also Declaration of Patrick J. Monaghan in Support of Motion to Dismiss Amended Complaint and for Summary Judgment, dated Mar. 22, 2016 (D.I. 27) ("Monaghan Second Decl."), Ex. A, B). Monaghan thereafter moved to withdraw from further representation of plaintiff in that case, and that motion was granted on November 23, 2012 (Am. Compl. at 6-7, n.1-2). In 2014, Monaghan also moved to withdraw from the federal court action, and that motion was granted in November of 2014.
Plaintiff originally alleged that Monaghan was guilty of malpractice for certain negligent conduct he committed during his representation of her (Am. Compl at 24-25). After Monaghan's motion for summary judgment was granted in part, the only remaining claims are plaintiff's allegations of malpractice based on (1) Monaghan's alleged conflict of interest in his simultaneous representation of Kinder and plaintiff during the 2000 N.Y.S. Action and (2) Monaghan's alleged failure to file essential documents. Bryant v. Monaghan, supra, 2016 WL 11272143.
Plaintiff asserted that Monaghan committed malpractice by: (1) failing to investigate, discover and disclose material facts; (2) simultaneously representing plaintiff and Kinder; (3) failing to provide documents to plaintiff's new counsel and (4) failing to move for default judgment and failing to serve two BMI subpoenas upon opposing counsel in plaintiff's New York State actions. Plaintiff's first and third specifications of malpractice were dismissed in my previous Report & Recommendation. Bryant v. Monaghan, supra, 2016 WL 11272143.
III. Analysis
A. Applicable Legal Principles
1. Summary Judgment Standard
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party . . . is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). To grant the motion, the court must determine that there is no genuine issue of material fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue derives from the "evidence [being] such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual argument based on "conjecture or surmise," Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 143 L.Ed.2d 731 (1999). It is a settled rule that "[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (brackets in original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000); Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir. 2016); Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d Cir. 2015); Deep Woods Holdings, L.L.C. v. Savings Deposit Ins. Fund of Republic of Turk., 745 F.3d 619, 622-23 (2d Cir. 2014); Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011).
Although the Court in Reeves was reviewing the denial of a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50, the same standards apply to a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Reeves v. Sanderson Plumbing Prods., Inc., supra, 530 U.S. at 150-51.
"Material facts are those which 'might affect the outcome of the suit under the governing law' . . . ." Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. "'[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007) (second alteration in original), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, quoting Fed.R.Civ.P. 56; accord Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014) ("[W]here the nonmoving party will bear the burden of proof on an issue at trial, the moving party may satisfy its burden [on a summary judgment motion] by point[ing] to an absence of evidence to support an essential element of the nonmoving party's case." (inner quotations and citations omitted, last alteration in original)).
Lastly, where, as here, a party is proceeding pro se, her submissions "must be construed liberally and interpreted 'to raise the strongest arguments they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis added in original), quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This rule applies with particular force when evaluating motions for summary judgment. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)("[S]pecial solicitude should be afforded pro se litigants . . . when confronted with motions for summary judgment.").
2. Malpractice
The elements of a claim of legal malpractice under New York law are: (1) an attorney-client relationship at the time of the alleged malpractice, (2) attorney negligence and (3) actual damage to the client that is proximately caused by the attorney's negligence. Kirk v. Heppt, 532 F. Supp. 2d 586, 591 (S.D.N.Y. 2008) (Sweet, D.J.) (citations omitted); see also O'Callaghan v. Brunelle, 84 A.D.3d 581, 582, 923 N.Y.S.2d 89, 90 (1st Dep't 2011); Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1022, 843 N.Y.S.2d 104, 105-06 (2d Dep't 2007). An attorney is negligent if he or she fails to exercise that degree of care, skill and diligence commonly possessed and exercised by ordinary members of the legal community. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 867 N.E.2d 385, 387, 835 N.Y.S.2d 534, 536 (2007).
A complaint that essentially alleges either an "error of judgment" or a "selection of one among several reasonable courses of action" fails to state a claim for malpractice. . . . Generally, an attorney may only be held liable for "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action."Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citations omitted). Further, "[w]hile a conflict of interest amounting to a violation of the Rules of Professional Conduct does not, in and of itself, amount to malpractice, 'liability can follow where the client can show that he or she suffered actual damage as a result of the conflict.'" Esposito v. Noto, 132 A.D.3d 944, 945, 19 N.Y.S.3d 300, 302 (2d Dep't 2015), quoting Tabner v. Drake, 9 A.D.3d 606, 610, 780 N.Y.S.2d 85, 88-89 (3rd Dep't 2004); see also Kaminsky v. Herrick, Feinstein LLP, 59 A.D.3d 1, 13, 870 N.Y.S.2d 1, 9 (1st Dep't 2008).
New York law provides a three-year statute of limitations for a legal malpractice action that "begins when the malpractice occurs, not when an individual discovers the malpractice or understands its full consequences." Hanna v. O'Connell, 14 Civ. 7016 (RJS), 2015 WL 5223188 at *3 (S.D.N.Y. Aug. 12, 2015) (Sullivan, D.J.); see also Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 69, 726 N.Y.S.2d 365, 367 (2001). "Diversity actions arising from New York state claims are subject to New York's three-year statute of limitations for malpractice suits." Braten v. Kaplan, 721 F. App'x 94, 95 (2d Cir. 2018) (summary order); accord Gurvey v. Cowan, Liebowitz & Latman, P.C., 06 Civ. 1202 (LGS), 2017 WL 2880554 at *5 (S.D.N.Y. July 6, 2017) (Schofield, D.J.).
The statute of limitations "may be deemed tolled under the theory of continuous representation until the attorney ceases representing the client in the specific matter at issue." Nobile v. Schwartz, 56 F. App'x 525, 526 (2d Cir. 2003) (summary order) (applying New York law); Shumsky v. Eisenstein, supra, 96 N.Y.2d at 168, 750 N.E.2d at 71, 726 N.Y.S.2d at 369 ("[I]n the context of a legal malpractice action, the continuous representation doctrine tolls the Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice."). In order to invoke the continuous representation doctrine, plaintiff "must demonstrate 'clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice.'" Patel v. Jani, 12 Civ. 9376 (KBF), 2016 WL 3637107 at *15 (S.D.N.Y. June 30, 2016) (Forrest, D.J.), quoting Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506-07, 560 N.Y.S.2d 787, 789 (2d Dep't 1990). "The fact that the attorney continued to generally represent the client does not trigger the continuous representation doctrine." Patel v. Jani, supra, 2016 WL 3637107 at *15; see also Bastys v. Rothschild, 154 F. App'x 260, 262 (2d Cir. 2005) (summary order); Shumsky v. Eisenstein, supra, 96 N.Y.2d at 168, 750 N.E.2d at 71, 726 N.Y.S.2d at 369. The continuous representation doctrine cannot be used to toll the statute of limitations after the relationship of trust and confidence ends. See Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202, 204 (2d Dep't 2013); Fleyshman v. Suckle & Schlesinger, PLLC, 91 A.D.3d 591, 592, 937 N.Y.S.2d 92, 92-93 (2d Dep't 2012).
B. Application of the Foregoing Principles
In both her memorandum of law and accompanying declaration, plaintiff makes several lengthy arguments regarding claims that have already been dismissed, claims not properly pleaded in her amended complaint and various discovery issues (See Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment, dated Oct. 31, 2017 (D.I. 131) ("Pl. Mem."); Declaration of Anne Bryant, dated Oct. 31, 2017 (D.I. 132) ("Bryant Decl.")). For purposes of this decision, I shall only address plaintiff's arguments that are relevant to whether she is entitled to judgment as a matter of law on her two remaining malpractice claims against Monaghan.
In her surviving specifications of malpractice, plaintiff alleges Monaghan committed malpractice when he agreed to represent Kinder and when he failed to file default judgment papers and failed to serve two BMI subpoenas on an adverse party in the 2000 N.Y.S. Action (Am. Compl. at 24-25). However, plaintiff does not address why she is entitled to judgment as a matter of law on these claims in her motion papers.
With respect to her conflict-of-interest claim, plaintiff cites New York Rules of Professional Conduct, Rule 1.9 and then simply states "Def. Monaghan protects and advocates for Kinder" (Pl. Mem. at 9-10). In her accompanying declaration, plaintiff's only statement concerning this claim is that "hoarded documents" from her previous New York State actions would impli- cate Kinder in major frauds and would be further evidence that Monaghan and Kinder "are allied" (Bryant Decl. at 16).
Plaintiff's failure-to-file and failure-to-serve claim similarly fails. Plaintiff does not refer to this claim in her memorandum of law and merely states in her declaration that Monaghan's failure to file "affidavits of default" cost her over two million dollars in damages (Bryant Decl. at 12-13).
Plaintiff does not even address Monaghan's failure to serve the two BMI subpoenas in her memorandum of law or her declaration.
Although pro se litigant submissions must be construed liberally, "'proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment.'" Brown v. City of Rochester, 09-CV-6307 (MAT), 2010 WL 3703705 at *2 (W.D.N.Y. Sept. 16, 2010), quoting Viscusi v. Proctor & Gamble, 05-CV-1528 (DLI)(LB), 2007 WL 2071546 at *9 (E.D.N.Y. July 16, 2007). Plaintiff has not come close to demonstrating that there is "no issue as to any material fact" here and thus, her motion for summary judgment must be denied. See Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23.
2. Monaghan's Motion
Monaghan's motion is both procedurally improper and fails on the merits.
Rather than responding to plaintiff's motion, Monaghan instead cross-moved for summary judgment on the two remaining specifications of malpractice reiterating substantially the same arguments set forth in his previous summary judgment motion.
"'District courts may in their discretion permit renewed or successive motions for summary judgment, particularly when the moving party has expanded the factual record on which summary judgment is sought.'" Bonano v. Doe, 628 F. App'x 25, 27 (2d Cir. 2015) (summary order), quoting Brown v. City of Syracuse, 673 F.3d 141, 147 n.2 (2d Cir. 2012) and Kovacevich v. Kent State Univ., 224 F.3d 806, 835 (6th Cir. 2000). "However, such discretion is generally limited to cases in which the movant provides new material." Church v. Financial Recovery Servs., Inc., 16-CV-6391 (FPG), 2018 WL 1383231 at *4 (W.D.N.Y. Mar. 19, 2018). Where the movant "fails to provide 'new facts or new law that could not have been raised in the first motion,' a successive summary judgment motion is typically deemed improper." Church v. Financial Recovery Servs., Inc., supra, 2018 WL 1383231 at *4, quoting Buehlman v. Ide Pontiac, Inc., 268 F. Supp. 3d 437, 444-45 (W.D.N.Y. 2017); see also Villante v. VanDyke, 93 F. App'x 307, 310 (2d Cir. 2004) (summary order) (successive motion for summary judgment proper where there was a change in the law after the court denied defendant's first summary judgment motion); Purchase Partners, LLC v. Carver Fed. Sav. Bank, 09 Civ. 9687 (JMF), 2013 WL 1499417 at *7 (S.D.N.Y. Apr. 10, 2013) (Furman, D.J.) ("The law is clear that it is improper for a party to file a successive motion for summary judgment which is not based upon new facts and which seeks to raise arguments it could have raised in its original motion."); Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004) (Marrero, D.J.) ("The Court does not approve in general the piecemeal consideration of successive motions for summary judgment because parties ought to be held to the requirement that they present their strongest case for summary judgment when the matter is first raised." (internal quotations and citations omitted)).
In his initial motion, Monaghan moved for summary judgment on plaintiff's malpractice claims arguing that his simultaneous representation of plaintiff and Kinder did not create a conflict of interest because plaintiff had discontinued her claims against Kinder before Kinder engaged Monaghan and plaintiff benefitted from this subsequent joint representation (Memorandum of Law in Support of Motion to Dismiss Amended Complaint and Additionally for Summary Judgment, dated Mar. 22, 2016 (D.I. 28) ("Def. Initial Mem.")). In my previous Report & Recommendation, I found these arguments insufficient to warrant summary judgment.
The fact that plaintiff and Kinder had some interests in common, however, does not eliminate any differing
interests they may have had at that time. . . . Further, as noted above, plaintiff asserts that she was harmed by the conflict because Monaghan and Kinder negotiated terms that were unfair to her without plaintiff's input and agreement. Although plaintiff's proffer of harm is not explained in detail, Monaghan has not attempted to rebut plaintiff's allegations that he negotiated terms that were unfair to plaintiff. Thus, plaintiff has raised an issue of fact as to whether there was a conflict of interest raised by Monaghan's representation of both plaintiff and Kinder's interests in the 2000 N.Y.S. Action. Monaghan's motion for summary judgment on this aspect of plaintiff's malpractice claim should be denied.Bryant v. Monaghan, supra, 2016 WL 11272143 at *17 (internal citations omitted). I further found that Monaghan had not demonstrated his entitlement to summary judgment on plaintiff's failure-to-file claim because his motion papers failed to address this claim and failed to address the potential applicability of the continuous representation doctrine. Bryant v. Monaghan, supra, 2016 WL 11272143 at *18-*19.
Monaghan subsequently filed lengthy objections to my Report & Recommendation to Judge Crotty in which he cited to a letter dated September 12, 2006 that he claimed proved plaintiff and Kinder had consented to the joint representation (Objections to Magistrate's Report and Recommendation, dated Jan. 10, 2017 (D.I. 68) ("Def. Obj.") at 9-10). Monaghan further argued that any issues concerning his alleged failure to seek a default judgment on plaintiff's behalf and his alleged failure to serve two BMI subpoenas had already been resolved by the Appellate Division's November 5, 2014 decision that reversed an order imposing sanctions on him for his failure to serve the subpoenas (Def. Obj. at 10-11). He also presented several arguments as to why the continuous representation doctrine did not toll the statute of limitations on plaintiff's malpractice claims (Def. Obj. at 12-14).
Judge Crotty found Monaghan's arguments unpersuasive. First, Judge Crotty ruled that because the September 12, 2006 letter was only signed by plaintiff, not Kinder, and because plaintiff continued to allege that she did not approve the 2004 Letter Agreement, a question of material fact still existed as to whether Monaghan had a conflict of interest at the time he agreed to represent Kinder. Bryant v. Monaghan, supra, 2017 WL 887043 at *4. Next, Judge Crotty found that plaintiff's arguments regarding Monaghan's failure to file documents "construed liberally, could lead a reasonable trier of fact to conclude that Monaghan was negligent in not pursuing the default judgments." Bryant v. Monaghan, supra, 2017 WL 887043 at *4. He further found that Monaghan's reliance on the Appellate Division's reversal of the sanctions order was misplaced because it did not address the basis for plaintiff's malpractice claim. Bryant v. Monaghan, supra, 2017 WL 887043 at *4-*5. Finally, Judge Crotty found that because plaintiff and Monaghan disagree on when their attorney-client relationship ended, their "competing narratives raise an issue of fact, the determination which will control whether the continuous representation doctrine applies to toll the legal malpractice statute of limitations period." Bryant v. Monaghan, supra, 2017 WL 887043 at *6.
Monaghan now argues that he is entitled to summary judgment on plaintiff's conflict-of-interest malpractice claim because (1) plaintiff has failed to show that an actual conflict existed between her interests and Kinder's interests, (2) plaintiff was fully aware of and consented to the dual representation and (3) plaintiff has failed to show that she suffered any damages as a result of the dual representations (Memorandum of Law in Support of Summary Judgment as to Remaining Issues in Case, dated May 4, 2018 (D.I. 154) ("Def. Mem.") at 7-9). He also argues that he is entitled to summary judgment on plaintiff's failure-to-file malpractice claim because whether plaintiff was entitled to a default judgment in the 2000 N.Y.S. Action was questionable and his decision was an appropriate exercise of strategic discretion (Def. Mem at 9-10).
Monaghan does not address his alleged failure to serve the two BMI subpoenas or the malpractice statute of limitations issue in his most recent motion papers.
The present motion is Monaghan's "third bite at the apple" in his quest for summary judgment. Monaghan has not provided any new facts or law that would justify the court exercising its discretion to consider Monaghan's arguments for a third time. Furthermore, any slight modifications Monaghan made to his arguments are unavailing because they are arguments he easily could have made in his first summary judgment motion or in his objections to Judge Crotty. Permitting Monaghan to assert these arguments now would trivialize "the importance of not allowing parties to treat their initial summary judgment motions as a 'dry run' which they would have an opportunity to redo or supplement -- at considerable cost to opposing parties and at considerable drain to scarce judicial resources -- via a new Rule 56 motion later on to correct any deficiencies identified by . . . the court in processing the initial motion." Jackson v. Goord, 06-CV-6172 (CJS), 2013 WL 1560204 at *5 (W.D.N.Y. Apr. 10, 2013) (internal quotation marks and citations omitted); accord Church v. Financial Recovery Servs., Inc., supra, 2018 WL 1383231 at *4 ("no federal litigant has an absolute right to bring multiple, piecemeal motions for summary judgment" (internal citations omitted)); Robinson v. Henschel, 10 Civ. 6212 (PGG), 2014 WL 1257287 at *9 (S.D.N.Y. Mar. 26, 2014) (Gardephe, D.J.) (defendants not permitted a "second bite at the apple" when they submitted new evidence with a successive summary judgment motion that could have been presented with their first motion).
The fact that Monaghan's initial motion was converted from a motion to dismiss to a motion for summary judgment does not change this analysis. See Robinson v. Henschel, supra, 2014 WL 1257287 at *9.
Monaghan's motion fails on the merits, as well. Monaghan raises substantially the same arguments as he did in his prior summary judgment motion and in his objections to Judge Crotty. His claim that he exercised proper strategic discretion in not filing for a default judgment still precludes summary judgment because there is a material issue of fact whether this choice was negligent. Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, 105 A.D.3d 837, 839-40, 964 N.Y.S.2d 160, 162-63 (2nd Dep't 2013) (implying that failure to timely pursue default judgment may constitute legal malpractice). His arguments as to plaintiff's conflict of interest malpractice claim similarly fail because (1) as explained at length in previous decisions, the fact that plaintiff and Kinder may have shared similar interests or that plaintiff may have benefitted from the dual representation does not eliminate all differing interests plaintiff and Kinder may have had in 2004 and (2) a factual dispute remains as to whether plaintiff agreed to the 2004 Letter Agreement and whether plaintiff suffered damages as result of the dual representation (Am. Compl. at 24). See 22 NYCRR 1200.0, rule 1.7(a)(2); see generally Bryant v. Monaghan, supra, 2017 WL 887043; Bryant v. Monaghan, supra, 2016 WL 11272143.
Thus, I respectfully recommend that Monaghan's motion be denied.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that both plaintiff's and Monaghan's motions be denied.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Paul A. Crotty, United States District Judge, 500 Pearl Street, Room 1350, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
August 1, 2018
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copies mailed to: Ms. Anne Bryant
P.O. Box 418
21 Collaberg Road
Stony Point, New York 10980 Copies transmitted to: Patrick J. Monaghan, Jr., Esq.
Monaghan, Monaghan, Lamb & Marchisio
150 West 55th Street
New York, New York 10019 Urban S. Mulvehill, Esq.
O'Neill, DiManno & Kelly
15 Beekman Street
New York, New York 10038