Opinion
INDEX NO. 160223/2015
10-16-2020
JIMMY BUXTON and PRECIOUS BUXTON v. SETH ZUKOFF, ESQ., et al
NYSCEF DOC. NO. 203 PRESENT: MOT. DATE MOT. SEQ. NO. 006 and 007 The following papers were read on this motion to/for summary judgment
| Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits | NYSCEF DOC No(s).__________ |
| Notice of Cross-Motion/Answering Affidavits — Exhibits | NYSCEF DOC No(s).__________ |
| Replying Affidavits | NYSCEF DOC No(s).__________ |
In this action, plaintiffs seek to recover for alleged attorney malpractice. Defendants are Seth Zukoff, Esq. and the Law Offices of Seth Zukoff, P.C. (collectively Zukoff), who were plaintiffs' original attorney. The third-party defendants are the successor law firm, Raphaelson & Levine Law Firm, P.C. (R&L), who also represented plaintiffs. Levine & Grossman (L&G) is plaintiffs' current attorney and also a third-party defendant.
In motion sequence number 006, R&L moves for summary judgment dismissing the third-party complaint against them (CPLR § 3212). In motion sequence number 007, plaintiffs move for summary judgment against defendant Zukoff and, in the same motion, L&G moves for summary judgment based on collateral estoppel/res judicata and for an extension to file a motion for summary judgment pursuant to CPLR 3212(a). Defendant/Third-party plaintiff Zukoff opposes both motions. Issue has been joined and the R&L motion was timely brought after note of issue was filed. While L&G's motion was untimely by one day, the court will allow the late submission given the fact that we are in the midst of a pandemic and there is no prejudice to any party by the one-day delay. Therefore, summary judgment relief is available. The motions are decided as follows.
The following facts are alleged in the verified complaint and third-party complaint. Plaintiffs commenced a legal malpractice action against Zukoff based upon defendants' failure to file a timely notice of claim. Plaintiff Jimmy Buxton (Buxton) alleges he retained Zukoff in connection with a motor vehicle accident on November 7, 2012 and that Zukoff failed to timely and properly file and serve a Notice of Claim. Buxton discharged Zukoff in or about July 2013 and plaintiff retained R&L in or around July 16, 2013, approximately 5 months after the deadline to file a timely notice of claim had expired. Approximately two months into their representation of Buxton, R&L realized Zukoff did not file a timely notice of claim and notified Buxton it could no longer represent him. R&L terminated its representation of plaintiffs in September 2013. Buxton did not retain new counsel, L&G, until April 2014, after the deadline passed to seek permission to file a late notice of claim, to wit, the expiration of the one year and 90-day statute of limitations.
Subsequently, L&G filed a summons and complaint against non-party Nassau Inter-County Express (NICE) on behalf of plaintiffs in Supreme Court, Nassau County. In a decision dated September 8, 2015, the court found "....it is undisputed that the County of Nassau owns the bus at issue..." and that "plaintiffs did not file a Notice of Claim against the County of Nassau or Veolia pursuant to GML Sec.50-e, a notice of claim is a condition precedent to the commencement of a tort action, not only against the County, but also against Veolia". The court dismissed the action in its entirety.
Plaintiffs then commenced this legal malpractice action against Zukoff, who subsequently brought third-party claims against both R&L and L&G.
DISCUSSION
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The party opposing the motion must then come forward with sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman, supra). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]).
To establish a claim for legal malpractice, a party must show that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the party to sustain actual and ascertainable damages. Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 835 N.Y.S.2d 534 [2007] To establish proximate cause, a plaintiff must demonstrate that but for the attorney's negligence, the plaintiff would have prevailed in the underlying matter or would not have sustained ascertainable damages. Nomura Asset Cap. Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 [2015] MOTION SEQUENCE 006
R&L argues that it cannot be held liable for events that occurred before they were retained or five months after they terminated their representation of plaintiffs. R&L claims that the plaintiffs' claims for contribution and indemnification against them lack merit, since R&L did not represent plaintiffs when the deadline was missed to file a timely notice of claim and that if it did seek permission to file a late notice, there was no certainty that a court would grant the request. R&L further contends it was under no duty to cure Zukoff's negligence as Zukoff was aware of the need to file a late notice on multiple occasions and failed to take action. R&L further argues that since no direct claim could exist by plaintiffs against R&L, the third-party complaint must be dismissed.
R&L has provided the affidavit of Howard Raphaelson, Esq, who states that his firm was retained on July 16, 2013, 5 months after plaintiffs 90-day period to file a notice of claim had expired and before plaintiffs even filed a lawsuit. Raphaelson avers that after his firm determined that Zukoff failed to timely file a notice of claim, it urged Buxton to ask Zukoff to represent him again or to take other steps to cure Zukoff's negligence. Raphaelson states that in September 2013, two months later, R&L informed Plaintiff, in person and via letter, that it was terminating its representation of them.
Zukoff argues that R&L is not entitled to summary judgment as it had sufficient time to protect plaintiffs' rights and failed to do so and that Zukoff is entitled to contribution and indemnity from R&L. Zukoff further argues that summary judgment must be denied as premature because critical discovery is outstanding "including Zukoff's ability to prosecute the third-party action".
First, Zukoff's argument that discovery is outstanding and that the motion for summary judgment is premature is rejected. Generally, summary judgment is premature when a party can specifically identify discovery not in their possession which is needed to oppose the motion (CPLR § 3212[f]). This case is over 4 years old. Plaintiff filed his note of issue in November 2019 and the parties entered into a stipulation providing for the continuation of discovery including conducting depositions of third-party defendants. Zukoff could have moved to vacate the note of issue in November 2019 but did not. Moreover, Zukoff filed his third-party action in January 2017 and had ample opportunity to conduct discovery over the last three years but failed to do so. Even if summary judgment was premature, it would be of no moment based on the record before the court because triable issues of fact exist as to how the accident happened and whether or not Zukoff's failure to file his notice of claim gives rise to malpractice. Otherwise, Zukoff has failed to specifically identify what discovery would enable him to oppose either motion.
Next, Zukoff claims that he is entitled to contribution and common law indemnification from R&L because, as successor counsel, they had sufficient time to protect plaintiffs' rights by filing an application for a late notice of claim and failed to do so.
Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury . . . may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." An action for contribution is predicated upon a third-party's breach of a duty owned to either the plaintiff or the defendant. See, Sommer v Fed. Signal Corp., 79 NY2d 540, 583 N.Y.S.2d 957 [1992]
Here, it is undisputed that R&L, as successor counsel, had sufficient time and opportunity to timely file an application for leave to file a late notice and even possibly a lawsuit against the alleged tortfeasors. The court rejects R&L's argument that that it did not represent plaintiffs or have an obligation to seek permission to file a late notice. It was that very determination that led R&L to unilaterally terminate its representation of plaintiffs when it realized Zukoff missed the 90-day deadline to file a notice of claim.
While there is no dispute that Zukoff failed to file a notice of claim within 90 days of the date of the accident, R&L's claim that it terminated its representation of plaintiff in September 2013 and therefore it cannot be held liable for either Zukoff's failures or an attempt to cure Zukoff's malpractice as speculative is rejected. The court agrees that R&L cannot be liable for Zukoff's failure to timely file a notice of claim within the 90-day period. However, plaintiffs retained R&L in July 2013 and R&L terminated its representation a mere two months later in September 2013 when it realized that a notice of claim was needed and not filed. Whether R&L would have prevailed on an application to serve a late notice of claim has not been established as a matter of law on this record and therefore will have to be determined by the trier of fact. Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104, 726 NYS2d 86 [1st Dept 2001], lv denied 97 NY2d 613, 742 NYS2d 606 [2002].
The court further rejects R&L's argument that at Buxton's deposition, when asked if R&L did anything wrong during the two months in which they represented him, and he responded "no", is sufficient to prohibit asserting a malpractice claim against them. The question and plaintiff's response do not conclusively establish that R&L is or is not liable for malpractice. See, Prince, Richardson on Evidence Sec. 8-219, at 529 [Farrell 11th ed].
Based on the foregoing, R&L's motion is denied. MOTION SEQUENCE 007
First, plaintiffs argue that the court should grant them summary judgment finding that non-party Nassau Inter-County Express (NICE) was liable due to the rear end collision with Buxton under VTL § 1129. Buxton testified at his deposition that his car was stopped because he was stuck in snow and that he got hit in the rear. Defendant Zukoff opposes the motion and contends that plaintiffs are not entitled to a finding of liability against non-party Nassau County Intercounty Express based on the deposition testimony of the non-party bus driver Mathurin Kenold.
The court agrees with Zukoff. The record shows that questions of fact exist precluding a finding of summary judgment. Non-party Kenold testified at his deposition, in relevant part, that "he [Buxton] is the one who caused the accident, because the lane that he tried to pass through is not a moving lane. He was trying to get through the parking lane; Q: where did the other car make contact with the bus? A: On the right side of the bus...the tire located behind the door where I am sitting at...". The incident report by the bus driver notes that he was heading east on Hillside Avenue when Buxton's vehicle passed on the right side of the bus "slid on the icy road and hit his left mirror". Kenold's and Buxton's versions of how the accident happened are different thereby precluding summary judgment. Based on the foregoing, that portion of plaintiff Buxton's motion for summary judgment is denied.
Next, L&G argues that summary judgment should be granted finding Zukoff liable for legal malpractice because Zukoff knew that a notice of claim was required against a municipal corporation and that Zukoff failed to file a notice for plaintiff Buxton within the 90 days. Zukoff opposes the motion and argues that L&G had sufficient time and opportunity to protect plaintiff's rights and that it should have sued the bus company Veolia within the three-year statute of limitations.
While it is undisputed that Zukoff failed to timely file a notice of claim or make an application for leave to file a late notice, it is unknown if plaintiff would have prevailed in the underlying action. The record before the court shows that there are triable issues of fact as to how the accident occurred based on the deposition testimony of both Buxton and the bus driver Kenold that preclude granting summary judgement to L&G on this point.
Finally, L&G argues that it should not be a named party in this lawsuit as there was a judicial determination that Levine & Grossman was retained after the 90-day notice of claim period and after the expiration of the one year and ninety-day statute of limitations period and that Zukoff is estopped by "res judicata/collateral estoppel" from making claims against them. L&G further contends that since their firm was not retained until after the 90-day period and the one year and 90-day statute of limitations expired, it cannot be liable for contribution or indemnification.
The court agrees. At the time L&G undertook plaintiffs' representation, it was beyond the time period to either file a notice of claim or move to file a late notice. Based on the underlying facts of the accident between Buxton and the bus, the timely filing of a notice of claim with the County of Nassau was a condition precedent to any litigation. The court rejects Zukoff's argument that a three 3-year statute of limitations applies. Moreover, Justice Winslow held that "The law is clear that the statutory notice of claim requirement applies not only to the County, but also to a private corporation that operates County-owned buses in fulfillment of the County's statutory duty to operate a public transit stem". Here, Nassau County owned the bus and was operated by Veolia. L&G could not have filed any corrective motion as both the 90 day and one year and 90-day statute of limitations expired. Based on the foregoing, L&G's motion is granted and defendant/third party plaintiff Zukoff's action against it are severed and dismissed.
Zukoff's remaining argument that this motion is also premature is rejected for the same reasons as set forth above in motion sequence 6. Moreover, there is no discovery that would change the result because L&G didn't represent plaintiffs Buxton when a notice of claim could have been filed or even before a motion for leave to serve a late notice of claim could have been made.
CONCLUSION
In accordance herewith, it is hereby:
ORDERED that motion sequence number 006 by third-defendant R&L for summary judgment is denied in its entirety; and it is further
ORDERED that motion sequence number 007 by L&G for summary judgment is granted to the extent that Zukoff's third-party claims against L&G are severed and dismissed and the balance of the motion is denied; and it is further
ORDERED, that depositions, virtual or in-person, of defendant, third-party plaintiff and third-party defendant R&L shall be conducted on or before November 30, 2020, any and all discovery responses shall be filed and served within 30 days and IMEs shall be conducted on or before November 30, 2020 and reports exchanged within 45 days thereafter.
ORDERED that the Clerk is directed to enter judgment accordingly.
Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the court. Dated: 10/16/20
New York, New York
So Ordered:
/s/ _________
Hon. Lynn R. Kotler, J.S.C.