Opinion
Index No.154650/2013
10-27-2017
BETTY COHEN and MARTIN COHEN, Plaintiffs, v. SIVE, PAGET & RIESEL, P.C. and STEVEN BARSHOV, Defendants.
NYSCEF DOC. NO. 110 DECISION AND ORDER JENNIFER G. SCHECTER, J.:
Betty and Martin Cohen commenced this legal-malpractice, negligence and breach-of-contract action against Sive, Paget & Riesel, P.C. (SPR) and Steven Barshov. Defendants move for summary judgment. The motion is granted in part.
Background
In 2004, the Cohens' neighbors--the Habers--did extensive excavation on their property as they planned to construct a house with two basement levels (Memorandum in Opposition [Opp] at 1). In August 2004, during the early stages of the excavation, the Cohens became concerned with vibrations and possible damage to their home and contacted the Habers' contractor and the New York City Department of Buildings (DOB). The Cohens lodged an official complaint with DOB on August 31, 2004. The following day, DOB inspected the Cohens' property and did not observe any structural defects (Affirmation in Support [Supp] at 9, Ex J; Opp, Exs 2-3). As the excavation work continued, plaintiffs suspected that their home was being damaged and, on September 20, 2004, they contacted DOB again. On September 30, 2004, DOB inspectors determined that there was damage to the Cohens' property that was caused by the Habers' work (Opp, Exs 4-5).
Defendants' expert conducted an inspection in December 2016, more than 10 years after the damage, and acknowledged that the Habers' work caused damage to the Cohens' property (Supp, Ex M at 5-6, 9-10).
Days later, on October 4, 2004, plaintiffs retained SPR to represent them on issues related to the excavation, including the damage to their home (Supp at 9; Opp at 2). Steven Barshov, a vice-president of SPR, was the Cohens contact at the firm (Supp at 5).
Over a year later, in December 2005, the Cohens made a claim with their insurance company. In a January 2006 letter, which was sent to plaintiffs and SPR, the Cohens' insurer denied coverage because the Cohens were aware of damage to their home as early as September 21, 2004, yet failed to give "prompt notice" under the policy (Opp, Ex 8). The Haber/Cohen Litigation
The dispute between the Cohens and the Habers spawned three lawsuits (Haber/Cohen Litigation) (Supp at 4). The first suit was commenced by the Habers against the Cohens. In that action, the Cohens asserted various counterclaims to recover for damage to their home (Supp at 4). The Cohens then commenced an action against the Habers' general contractor (Supp at 4). The general contractor's carrier commenced the third suit seeking a declaratory judgment (Supp at 4). During the course of litigating the underlying matters, various subcontractors and other entities were added as parties.
According to Ms. Cohen, at a 2006 court appearance, a judge asked Mr. Barshov why he "did not notify plaintiffs' insurance company" of the damage and litigation (Supp, Ex I [Cohen Tr] at 64-65, 100, 104). Mr. Barshov allegedly responded that he "didn't know he was supposed to" (Cohen Tr at 65). Upon leaving the courtroom and in response to Ms. Cohen asking Mr. Barshov why he "didn't do what [he] was supposed to do," he responded "I don't know. And I know . . . you didn't want your insurance to go up" (Cohen Tr at 102-103). The Cohens terminated SPR immediately after the court appearance in December 2006 (Supp at 5, Exs F and Cohen Tr at 64, 100).
The Haber/Cohen Litigation was ultimately resolved in February 2013. Pursuant to a settlement, the Cohens were entitled to $425,000. They received $227,022.59 after paying attorneys' fees and disbursements (Supp, Ex D).
This Action
On May 27, 2009--months before the malpractice statute of limitations would expire--Mr. Barshov, as vice-president of SPR, signed a letter agreement (Tolling Agreement), which provided:
"This letter confirms that [SPR] agrees that the statute of limitations as to any claim for attorney malpractice that [plaintiffs] may have against SPR that is not time barred as of May 2009 is tolled through and including November 27, 2009"(Supp at 5, Exs G [emphasis added] and N at 2). The Tolling Agreement was subsequently extended several times.
In 2013, plaintiffs commenced this action alleging that SPR and Mr. Barshov improperly failed to advise them of the scope of their rights and obligations under their homeowner-insurance policy and failed to notify their insurer, the Habers' insurer and the construction company's insurer of the damage to their home and the ensuing lawsuits (Opp at 3).
Plaintiffs urge that by failing to put any insurer on notice, they lost all of their insurance rights costing them almost $200,000 in legal fees and disbursements (Opp at 3). They claim that defendants failed to meet the standard of care for legal professionals (Opp at 3).
Defendants' Summary Judgment Motion
Defendants move for summary judgment dismissal of the complaint, urging, among other things, that plaintiffs' loss is speculative, their claim would have been denied by their insurance carrier as untimely by the time SPR was retained and that claims against Steven Barshov are untimely and were not tolled (Supp at 7-10).
Analysis
Summary Judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of material triable issues(see Glick & Dolleck v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968] [denial of summary judgment appropriate where an issue is "arguable"]; Sosa v 46th Street Develop. LLC, 101 AD3d 490, 493 [1st Dept 2012]). The burden is on the movant to make a prima facie showing of entitlement to judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any disputed material facts. Once the movant has made this showing, the burden then shifts to the opponent to establish, through competent evidence, that there is a material issue of fact that warrants a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Legal Malpractice
To recover for legal malpractice, a plaintiff must demonstrate that the defendant 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 actual and ascertainable damages (Darby & Darby, P.C. v VSI Inern., Inc., 95 NY2d 308 [2000]; Soni v Pryor, 139 AD3d 841, 842 [2d Dept 2016]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; Sabalaza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]).
SPR has not met its heavy burden of establishing entitlement to summary judgment here. It failed to demonstrate that had plaintiffs submitted an insurance claim at the time SPR was retained, coverage would have definitively been denied (see Soni, 139 AD3d at 844 [affirming denial of summary judgment to attorneys who allegedly failed to advise their clients about the availability of insurance as they did not show that it would be "impossible" for plaintiffs to establish that had they given notice to their insurer, it would have complied with the policy's condition precedent that notice be given "as soon as practicable"]). Significantly, in disclaiming coverage, the Cohens' insurer explained that the Cohens were on notice of damage as of September 21, 2004, which is only two weeks before SPR was retained. Because SPR has not demonstrated that, as a matter of law, notice would have been untimely or that any potential negligence on its part could not have been the proximate cause of the plaintiffs' loss of coverage, its motion for summary judgment is denied.
To the extent that defendants urge that there would be no coverage for at least some of the lawsuits because plaintiffs acted intentionally and maliciously, there has been no finding supporting that theory and, even if that provision would apply, it cannot be said that it would have applied to any action dealing with damage to plaintiffs' property (see Soni, 139 AD3d at 844). --------
Negligence and Breach of Contract
Plaintiffs' negligence and breach of contract causes of action are dismissed as duplicative of the legal malpractice claim because they are all based on the very same facts and seek the very same relief (Palmeri v Willkie Farr & Gallagher LLP, 152 AD3d 457 [1st Dept 2017]; Mamoon v Dot Net Inc., 135 AD3d 656 [1st Dept 2016] [absent allegation of breach of promise to achieve a specific result, claim was duplicative of legal malpractice]; Raghavendra v Brill, 128 AD3d 414 [1st Dept 2015][claims of negligence and breach of attorney service contract dismissed as duplicative of legal malpractice claim]).
Summary Judgment as to Steven Barshov
Summary judgment is granted as to claims against Steven Barshov. The Tolling Agreement, signed by Barshov solely in his capacity as vice-president, by its explicit terms only applies to claims that plaintiffs have "against SPR" (Supp at 5, Ex G). Plaintiffs' reliance on Business Corporation Law § 1505(a) is unavailing. That statute authorizes personal liability, but, of course, any action against an individual must be timely commenced. There is no authority for extending SPR's agreement to toll the statute of limitations to Mr. Barshov and the malpractice claim against him is untimely.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is denied solely as to the legal malpractice claim against SPR and is granted as to the other causes of action; it is further
ORDERED and ADJUDGED that the motion for summary judgment is granted as to Steven Barshov, the action against him is dismissed in its entirety and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the caption be amended to reflect the dismissal of the action as to Steven Barshov and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that defendants shall serve a copy of this Order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158) who are directed to mark the Court's records to reflect the change in the caption herein.
This is the decision and order of the court. Dated: October 27, 2017
/s/_________
HON. JENNIFER G. SCHECTER