Opinion
2011-11-1
Samuel HIRSCH, Plaintiff–Appellant,v.Stephen FINK, Defendant–Respondent.
Samuel Hirsch & Associates, PC, New York (Samuel Hirsch of counsel), for appellant.L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (William T. McCaffery of counsel), for respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 28, 2010, which, in this legal malpractice action, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
As defendant did not represent plaintiff in the underlying accounting action at the time the conditional order of preclusion was issued or in the next 30 days, during which plaintiff was to provide outstanding
discovery, he was not responsible for plaintiff's answer being stricken ( see Maksimiak v. Schwartzapfel Novick Truhowsky Marcus, P.C., 82 A.D.3d 652, 919 N.Y.S.2d 330 [2011] ). Contrary to plaintiff's contention, his attorney-client relationship with defendant did not continue indefinitely simply because it was not terminated in writing ( see Leffler v. Mills, 285 A.D.2d 774, 776–777, 729 N.Y.S.2d 196 [2001] ). The record contains no “indicia of an ongoing, continuous, developing and dependent relationship” between plaintiff and defendant ( see Muller v. Sturman, 79 A.D.2d 482, 485, 437 N.Y.S.2d 205 [1981] ), particularly where plaintiff engaged another lawyer. Nor could defendant have moved timely, i.e., within 30 days, to reargue the order to permit plaintiff to disregard overly broad discovery requests ( see CPLR 2221).
To prevail in this legal malpractice action, plaintiff would have to show that but for defendant's negligence he would have obtained a better result in the underlying accounting action ( Barbara King Family Trust v. Voluto Ventures LLC, 46 A.D.3d 423, 424, 849 N.Y.S.2d 41 [2007] ). To make that showing, plaintiff would have to litigate the issues of which cases belonged to the alleged partnership between himself and the underlying plaintiff and the fees to which he was entitled. However, those issues were raised and decided against plaintiff in the underlying action ( Frankel v. Hirsch, 38 A.D.3d 712, 830 N.Y.S.2d 918 [2007] ), where he had a full and fair opportunity to litigate them, and he is precluded by the doctrine of collateral estoppel from re-litigating them in this action ( see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ).
CATTERSON, J.P., MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ., concur.