Opinion
117 304804/10.
02-04-2016
Sivan KINBERG, Plaintiff–Appellant, v. SCHWARTZAPFEL, NOVICK, TRUHOWSKY, MARCUS, PC, etc., Defendant–Respondent.
Sivan Kinberg, appellant pro se. Goldberg Segalla LLP, Garden City (Brendan T. Fitzpatrick of counsel), for respondent.
Sivan Kinberg, appellant pro se.
Goldberg Segalla LLP, Garden City (Brendan T. Fitzpatrick of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered November 17, 2014, which granted defendant's motion to dismiss the complaint based on collateral estoppel and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
Defendant's motion, properly treated as a motion for summary judgment (CPLR 3212[b] ), is not precluded by the “single motion” rule (CPLR 3211 [e] ). Although defendant previously moved to dismiss on other grounds, a “pre-answer motion to dismiss based on one of the grounds set forth in CPLR 3211(a) does not effect a waiver of the other grounds set forth in CPLR 3211(a),” which can then be raised in support of a motion for summary judgment dismissing the complaint (Hertz Corp. v. Luken, 126 A.D.2d 446, 448–449, 510 N.Y.S.2d 590 1st Dept.1987; see Tapps of Nassau Supermarkets v. Linden Blvd., 269 A.D.2d 306, 704 N.Y.S.2d 27 1st Dept.2000 ).
Plaintiff asserts a cause of action for legal malpractice against defendant law firm, which represented her in the course of her prior personal injury action. That action was dismissed after plaintiff failed to comply with discovery demands in a conditional order of preclusion (see Kinberg v. Shnay, 25 Misc.3d 138[A], 2009 WL 3857793 [App.Term, 1st Dept.2009] ). The order dismissing plaintiff's prior action based on her violation of the preclusion order is entitled to preclusive effect in this subsequent action (see Strange v. Montefiore Hosp. & Med. Ctr., 59 N.Y.2d 737, 463 N.Y.S.2d 429, 450 N.E.2d 235 1983; Kanat v. Ochsner, 301 A.D.2d 456, 458, 755 N.Y.S.2d 371 1st Dept.2003; see also Santoli v. 475 Ninth Ave. Assoc., LLC, 38 A.D.3d 411, 417, 833 N.Y.S.2d 40 1st Dept.2007 ). Moreover, plaintiff's motion to vacate the order dismissing her prior action was denied for failure, inter alia, to establish the merits of her underlying personal injury claim, and that order was affirmed by the Appellate Term. Plaintiff is collaterally estopped from relitigating the merits of her underlying personal injury claim, since she had a full and fair opportunity to litigate the issue in the prior 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; Rosenkrantz v. Harriet M. Steinberg, P.C., 13 A.D.3d 88, 786 N.Y.S.2d 35 1st Dept.2004, lv. dismissed in part denied in part 5 N.Y.3d 729, 799 N.Y.S.2d 768, 832 N.E.2d 1185 2005 ). Therefore, plaintiff is unable to establish in this action that “but for” the attorney's negligence, she would have prevailed in the underlying matter, and her legal malpractice action against defendants was properly dismissed (Brooks v. Lewin, 21 A.D.3d 731, 734, 800 N.Y.S.2d 695 1st Dept.2005, lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 2006; and see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 2007 ).
We have reviewed plaintiff's remaining arguments and find them unavailing.