Opinion
20112/08.
February 1, 2010.
SULLIVAN, PAPAIN BLOCK McGRATH CANNAVO, PC, Mineola, NY, Attorney for Plaintiff.
RIVKIN RADLER LLP, Uniondale, New York, Attorney for Defendant/Corrado.
PHILIP J. RIZZUTO P.C., Carle Place, New York, Attorney for Defendant/Rizzuto.
TRAUB LIEBERMAN STRAUS SHREWSBERRY LLP, Hawthorne, New York, Attorney for Defendant/Pollack.
L'ABBATE, BALKAN, COLAVITA CONTINI, L.L.P., Garden City, New York, Attorney for Defendants/Pollack Kotler.
The following papers having been read on this motion:
Notice of Motions ............. 1-2 Cross-Motion .................. 3 Opposition papers ............. 4-5 Reply ......................... 6-7 Memoranda of Law .............. 8-10
Motions (seq. no. 1) by the attorneys for the defendants Jason R. Corrado, P.C. and Jason R. Corrado, Esq.; (seq. no. 3) by the attorneys for the defendant Philip J. Rizzuto, P.C.; and (seq. no. 4) by the attorney for defendants Lynn R. Kottler, Esq. and Pollack Kotler, Attorneys at Law for an order pursuant to CPLR 3211 (a) 1 and 7) dismissing the plaintiff's complaint as to the respective defendants is determined as hereinafter set forth.
This is an action for legal malpractice.
By order of Judge Daniel Martin, ASCJ, dated Sept. 1, 2009, pursuant to CPLR 3211 (c) the court sua sponte converted the within CPLR 3211(a)(1) and (7) motions to motions for summary judgment pursuant to CPLR 3212.
In July 2004, plaintiff retained the services of defendant Pollack Kotler, Attorneys at Law (the law firm) to represent her in an employment discrimination and sexual harassment case against her employer Keyspan. In July 2004 the law firm consisted of defendant Ruth M. Pollack, Esq. (Pollack) and Lynn R. Kotler, Esq. (Kotler).
Due to the conduct of defendant Pollack in pursuing the discrimination action, the Federal discrimination law suit was dismissed with prejudice. Judge Spatt's order dated June 2, 2007 stated:
On May 16, 2007, at the scheduled pre-trial conference of this matter, defendants moved the Court to dismiss this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiff's counsel did not appear. Defendants asserted that (i) there has been a continuous and substantial failure to prosecute this action; (ii) plaintiff's counsel failed to comply with this Court's May 7, 2007 order; (iii) plaintiff's counsel has a prior history of failing to comply with prior orders of this Court, as described in detail in the May 7, 2007 order of this Court and the April 3, 2007 order of Magistrate Judge Wall; and (iv) dismissal with prejudice was the appropriate remedy.
This Court has heard the arguments of counsel for defendants in favor of the motion. No opposition to the motion was presented by plaintiff, who did not appear despite the Court's May 17, 2007 order to do so. As noted, the Court has separately filed findings in its May 7, 2007 order that there has, indeed been a continuous failure to respond to discovery requests and motions. The Court concludes that no lesser remedy is an appropriate response to these failures.
Plaintiff acknowledges she received a copy of Magistrate Judge William D. Wall's April 3, 2007 order. Plaintiff asserts she was never aware of Judge Spatt's order dated May 7, 2007.
Pollack's motion to vacate the dismissal was denied by Judge Spatt on July 20, 2007.
On or about September 25, 2007, the plaintiff then retained defendant Jason R. Corrado, P.C. and Jason R. Corrado, Esq. (refereed to hereafter collective as Corrado). Plaintiff met with Corrado at his law office in mid October, 2007. He advised her that the appeal that Pollack filed was defective because she failed to file Forms C and D. On January 7, 2008 she signed another retainer agreement with Corrado. The plaintiff retained Corrado to seek to restore the appeal to the appellate calendar, reversal of the dismissal of the Federal discrimination case from the trial calendar and restoration to the trial calendar. Plaintiff asserts she paid a retainer of $5,000.00 and neither Corrado nor Rizzuto took any legal action with regard to the appeal. Plaintiff alleges that due to the legal malpractice of defendants law firm, Pollack, Kotler, Corrado and Rizzuto, she suffered the loss of right to litigate and would have prevailed in her underlying sexual harassment and employment discrimination case. Moreover she asserts each defendant breached the respective duty owed to her, resulting in damages.
To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove "that the defendant-attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community," and "that the defendant-attorney's negligence was a proximate cause of damages." ( See DeNatale v Santangelo, 65 AD3d 1006). To succeed on a motion for summary judgment, the defendant must establish that the plaintiff is unable to prove at least one of the essential elements of the cause of action sounding in legal malpractice ( see Leone v Silver Silver, LLP, 62 AD3d 962; Suydam v O'Neill, 276 AD2d 549; Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572).
The Corrado defendants argue that the dismissal of the discrimination action was caused solely by the action of defendant Pollack. Corrado asserts a motion to vacate had already been made and a second motion could not be made while an appeal was already pending. Corrado contends that only where an aggrieved client can establish the presence of "extraordinary circumstances" would there be a chance of prevailing on the appeal and Judge Spatt had expressly ruled that "extraordinary circumstances" were not present.
The two dismissals of plaintiff's lawsuit (at district court and at the appellate level) were the result of the actions of plaintiff's initial counsel, co-defendant Pollack. For almost two years, plaintiff and her prior counsel, co-defendant Pollack failed to provide court-ordered discovery and even failed to appear at court-ordered conferences. Judge Wall, in his lengthy 48 page order, concluded that co-defendant Pollack's behavior was "undeniably negligent.". Plaintiff appealed Judge Wall's order to Judge Spatt who adopted Judge Wall's order and reiterated that defendant Pollack was negligent. In so holding, Judge Spatt used language such as "numerous late filings", "persistent failures", "counsel's negligence", "irrational and bizarre claims" and "reckless manner". Appeals were taken by co-defendant Pollack and once again, co-defendant Pollack failed to file the appropriate forms. The appeal was dismissed. ( See Exhibit "G", motion-in-chief).
In July 2007, plaintiff appealed the Order of Dismissal to the United States Court of Appeals for the Second Circuit by notice filed by Pollack. However, Pollack failed to file Forms C and D that were required to be filed with the appeal. In October 2007, the Second Circuit issued an order to show cause which provided that the appeal would be dismissed for failing to file Forms C and D. Corrado, who was retained by plaintiff after her case had been dismissed, to try and undo the harm caused by Pollack. The Second Circuit denied the application and as such Corrado was unable to reverse the dismissal of the action caused by Pollack's actions.
Although summary judgment is a drastic remedy ( Andre v Pomeroy, 35 NY2d 361), nevertheless a "court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" ( Assing v United Rubber Supply Co., Inc., 126 AD2d 590; see Rotuba Extruders Ceppos, 46 NY2d 233, 231) and where there is nothing left to be resolved at trial, the case should be summarily decided ( Andre v Pomeroy, supra at 364). Notably, bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment ( see Spodek v Park Property Dev. Assocs., 263 AD2d 478). "'[A]verments merely stating conclusions, of fact or of law, are insufficient" to "'defeat summary judgment.'" ( Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383, quoting from Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 NY2d 285, 290). The plaintiff has failed to demonstrate or rebut the documentary evidence that but for the negligence of Corrado, the plaintiff would have been successful in vacating the order of Judge Spatt ( see Leone v Silver Silver, LLP, 62 AD3d 962; Suydam v O'Neill, 276 AD2d 549; Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572).
The motion by Corrado to dismiss the complaint as to Corrado is granted. Jason R. Corrado, P.C. and Jason R. Corrado, Esq. shall be deleted as party defendants.
Not withstanding anything to the contrary, should the plaintiff feel that she is entitled to a refund for all or part of the retainer paid to Corrado, she is not precluded from seeking relief in the Nassau County District Court.
Defendant Rizzuto in support of his motion for summary judgment argues Rizzuto was never retained by the plaintiff. Rizzuto acknowledges he had an employee/employer relationship with defendant Corrado, but that relationship only arose in August 2008. Plaintiff has failed to rebut Rizzuto's claim that he never had any communications with or received any compensation from the plaintiff for legal services allegedly performed. Plaintiff has failed to rebut Rizzuto's prima facie showing that no factual dispute exists requiring a trial as to defendant Rizzuto ( see Friends of Animals, Inc. V Associated Fur Mfrs., Inc., 46 NY2d 1065). Conclusory statements are insufficient ( Sofsky v Rosenberg, 163 AD2d 240, aff'd 76 NY2d 927; Zuckerman v City of New York, 49 NY2d 557).
Rizzuto's motion for summary judgment is granted. Philip Rizzuto, P.C. shall be deleted as a party defendant.
In support of their motion for summary judgment the law firm and Kotler defendants argue that the law firm was dissolved on or about December 25, 2005, and that the alleged malpractice of defendant Pollack could not have occurred until sometime in 2006 when the firm was dissolved. Prior to the decision of the Magistrate only defendant Pollack was listed as the attorney of record on all court filings. Moreover, Kottler asserts she never represented the plaintiff in any capacity. Pollack moved her law office to Riverhead. Kotler opened her own office in New York City. Kotler claims all the law firm clients were notified of the dissolution. In further proof of the dissolution Kotler submitted copies of letters she sent to the landlord, the New York State Department of Labor, cancellation requests from various insurance carriers and letters to various vendors advising them that the law firm was dissolved. Kotler claims she sent a letter to the plaintiff notifying her of the dissolution of the law firm but submits no letters in evidential form substantiating the claim that the plaintiff had actual notice.
Issue finding, rather than issue determination, is key to summary judgment (in re Cuttitto Family Trust, 10 AD3d 656; Greco v. Posillico, 290 AD2d 532; Gniewek v Consolidated Edison Co., 271 AD2d 643; Judice v DeAngelo, 272 AD2d 583). The court should refrain from making credibility determinations ( see S.J. Capelin Assoc v Globe Mfg. Corp., 34 NY2d 338, 341; Surdo v Albany Collision Supply, Inc., 8 AD3d 655; Greco v Posillico, supra; Petri v Half Off Cards, Inc., 284 AD2d 444, 445) and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion ( Glover v City of New York, 298 AD2d 428). Kotler's attorneys further argue that although the plaintiff admits that she had suspicions that Kotler and Pollack were no longer partners, she never contacted Ms. Kotler to confirm her suspicions to discuss the case or to advise her that she was having difficulties with Ms. Pollack. Moreover Kotler asserts the plaintiff does not indicate that she reached out to Kotler (or even Pollack) at PK's New York City office to find out why Pollack was not returning the plaintiff's calls. In summary the attorrneys for Kotler contend that the plaintiff did not contact Kotler because her suspicions about the dissolution of PK were confirmed long before that time and plaintiff was fully aware that only Pollack was representing her after February 2005. There are issues of fact precluding the granting of Kotler's motion to dismiss.
Where breach of contract, negligent misrepresentation or fraud claims are duplicative of a legal malpractice claim, the breach of contract and negligent misrepresentation claims must be dismisse ( see, e.g., Sitar v Sitar, 50 AD3d 667; Amodeo v Kolodny, P.C., 35 AD3d 773; AmBase Corp. V Davis Polk Wardwell; Ferdinand v Crecca Blair, 5 AD3d 538; Miszko v Leeds Morelli, 3 AD3d 726). Consequently only as to defendant Kotler the breach of contract and negligent misrepresentation claims are dismissed. Moreover, plaintiff's Judiciary Law and fraud claims only against the law firm and Kotler are dismissed ( see Judiciary Law § 487; Michalic by Nakovics v Klat 128 AD2d 505).
Plaintiff may proceed against the law firm and co-defendant Kotler only on the cause of action alleging legal malpractice.
A Preliminary Conference (see 22 NYCRR § 202.12) shall be held at the Preliminary Conference part, located at the Nassau County Supreme Court on the 18th day of February, 2010, at 9:00 AM. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the plaintiffs.
This decision is the order of the Court.