Opinion
No. 52261.
2012-01-11
JACK HALL PLUMBING AND HEATING, INC., Plaintiff, v. Monica A. DUFFY and H. Wayne Judge d/b/a Judge & Duffy and H. Wayne Judge in his Individual capacity, Defendants.
The DeLorenzo Law Firm, LLP, Schenectady (Cory Ross Dalmata of counsel), for plaintiff. Donohue, Sabo, Varley & Huttner, LLP, Albany (Bruce S. Huttner of counsel), for defendants.
The DeLorenzo Law Firm, LLP, Schenectady (Cory Ross Dalmata of counsel), for plaintiff. Donohue, Sabo, Varley & Huttner, LLP, Albany (Bruce S. Huttner of counsel), for defendants.
ROBERT J. MULLER, J.
By Order of the Supreme Court (Aulisi, J.) entered January 2, 2002 in Warren County, plaintiff prevailed in an employment contract dispute. Plaintiff—then represented by defendant H. Wayne Judge, Esq.—persuaded the trial court that the manner in which it terminated Russell C. Scudder, its CEO, was not in violation of the parties' employment contract. The Appellate Division was not persuaded, however, and reversed the Order in Scudder v. Jack Hall Plumbing & Heating (302 A.D.2d 848 [2003] ) (hereinafter Scudder ), remanding the matter to the trial court for a determination of damages. After plaintiff was assessed monetary damages for having breached the employment contract, this legal malpractice action ensued against Judge and his law firm, defendant Judge & Duffy. With discovery completed, defendants now move for summary judgment dismissing the complaint.
It is well settled that an attorney is liable in a malpractice action only if it can be established (1) that his or her conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession; and (2) that such conduct proximately caused plaintiff to sustain actual and ascertainable damages ( see Geraci v. Munnelly, 85 AD3d 1361, 1362 [2011];Grago v. Robertson, 49 A.D.2d 645, 646 [1975];see also Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 [1990] ). Insofar as the plaintiff herein unquestionably sustained damages, the Court need only address the first element outlined above. In focusing on this element, it must be noted that neither infallibility, prescience, nor perfection define the relevant standard of care. An attorney is not liable for an honest mistake of judgment where the proper course of action is open to reasonable doubt ( see Walter D. Peek, Inc. v. Agee, 235 A.D.2d 790, 792 [1997],lv denied89 N.Y.2d 815 [1997];Grago v. Robertson, 49 A.D.2d at 646). Clearly this may—as it does at present—pose a question of law determinable on a motion to dismiss ( see Rosner v. Paley, 65 N.Y.2d 736, 738 [1985] ).
The essence of plaintiff's complaint is that defendants are liable for professional negligence because, in March of 1998, they advised plaintiff that it could terminate Scudder without following the terms of his employment contract. Specifically, the complaint alleges that Judge “breached his duty of reading and reviewing the applicable constitutional, statutory, common, and case law dealing with employment contract termination....” Defendant's reasoning, inter alia, then—as now—is that the contract contained ambiguous provisions that a court would likely construe against the drafter of the contract which, in this instance, was Scudder. In support of defendants' motion, Judge has submitted an Affidavit outlining his considerations in advising plaintiff to immediately terminate Scudder, while also continuing to attempt a buyout of his contract:
“It was clear that Scudder had insinuated himself so deeply into [plaintiff's] organization and structure that a prolonged battle over his discharge would be extremely detrimental to the company. As a practical matter, Scudder could not simply be placed on leave pending a hearing since the banks and [plaintiff's] key customers would have to be informed about the serious management rift that had opened up within the Corporation. Allowing Scudder to maintain his title as CEO during a drawn out hearing process with its associated legal challenge[s] would certainly cripple [plaintiff].”
In opposition to the motion, plaintiff has submitted the affidavit of Frank M. Putorti, Jr., an attorney who opines that failing to advise plaintiff to “strictly adhere to the terms of the employment contract” was a deviation from the standard of practice.
Plaintiff's claim that defendants' legal advice deviated from the relevant standard of care necessarily implies that the trial court's decision was a deviation from sound jurisprudence. Indeed, plaintiff's position appears to be that the Appellate Division's reversal of the trial court constitutes evidence in chief that defendants' professional judgment fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession. Defendants' position, to the contrary, appears to be that the trial court's decision is evidence in chief that there was no malpractice, as the proper course of action was obviously open to reasonable doubt. The Court refrains from descending into this arena, however, as neither party shall have the standard of practice defined through the inherently unfair lense of hindsight.The Court notes that the law in this State regarding failure to follow the termination procedures in employment contracts has become more defined since issuance of the decision in Scudder, which decision has been widely cited for the proposition that when an employer terminates an employee-whether the termination is “for cause” or “without cause”—the employee will prevail on a breach of contract claim if the termination failed to comply with the procedures set forth in the contract ( see Scudder v. Jack Hall Plumbing & Heating, 302 A.D.2d at 850). While the Court recognizes that the decision in Scudder relied upon Hanson v. Capital Dist. Sports (218 A.D.2d 909 [1995] )—which was available to defendants when the alleged malpractice occurred—such reliance is not instructive on the entirely different issue presented in this litigation, namely the standard of practice.
Defendants' contention that the statements contained in Putorti's affidavit are generic and conclusory is persuasive. Plaintiff's expert urges a myopic principle within which strict adherence—in all employment contract analyses—is the standard of practice without reference to the dynamism and elasticity of the exhilarating acceleration of events surrounding this employer's discovery of a key employee's abuse of trust. The court is not convinced that such a sterile vacuum as contains Attorney Putorti's panoptic definition of the standard of practice is germane and, consequently, shall neither extract such a Draconian doctrine nor conclude that defendant members of the legal profession are now expected to anticipate such an imprecise standard for reviewing their professional conduct. Accordingly, defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety.
Therefore, having considered the Affirmation of Bruce S. Huttner, Esq. with exhibits attached thereto, dated August 19, 2011, submitted in support of the motion; Affirmation of H. Wayne Judge, Esq. with exhibits attached thereto, dated August 2, 2011, submitted in support of the motion; Memorandum of Law of Bruce S. Huttner, Esq ., dated August 19, 2011, submitted in support of the motion; Affirmation of Thomas E. DeLorenzo, Esq. with exhibits attached thereto, undated, submitted in opposition to the motion; Affidavit of Frank M. Putorti, Jr., Esq., sworn to September 26, 2011, submitted in opposition to the motion; Affidavit of John (Jack) C. Hall, sworn to September 26, 2011, submitted in opposition to the motion; Memorandum of Law of Thomas E. DeLorenzo, Esq., undated, submitted in opposition to the motion; Reply Affidavit of Bruce S. Huttner, Esq., sworn to on October 6, 2011, submitted in support of the motion; the Memorandum of Law of Corey R. Dalmata, Esq., dated December 19, 2011, submitted in opposition to the motion; the Correspondence of Bruce S. Huttner, Esq., dated December 20, 2011, submitted in support of the motion; and the oral argument held before the Court on November 21, 2011, with Bruce S. Huttner, Esq. appearing in support of the motion and Corey R. Dalmata, Esq. appearing in opposition thereto, it is hereby
ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order is returned to counsel for defendants for filing and service with notice of entry. The Notice of Motion dated August 19, 2011, together with the above-referenced submissions, have been filed by the Court.