Opinion
2011-12-8
PHOENIX ERECTORS, LLC, Plaintiff–Appellant, v. Edward M. FOGARTY, Jr., Esq., et al., Defendants–Respondents.
Carroll, McNulty & Kull, LLC, New York (Robert Seigal of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Thomas W. Hyland of counsel), for Edward M. Fogarty, Jr., respondent.
Carroll, McNulty & Kull, LLC, New York (Robert Seigal of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Thomas W. Hyland of counsel), for Edward M. Fogarty, Jr., respondent. Rivkin Radler LLP, Uniondale (Melissa M. Murphy of counsel), for Litchfield Cavo, LLP, respondent.Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jonathan Harwood of counsel), for White & McSpedon, P.C., respondent.ANDRIAS, J.P., SAXE, SWEENY, ACOSTA, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered February 17, 2011, which, in this action for legal malpractice, granted defendants Litchfield Cavo, LLP's and Edward M. Fogarty, Jr.'s motions to dismiss the complaint as against them, and denied plaintiff's cross motion pursuant to CPLR 3211(c), unanimously modified, on the law, to deny Fogarty's motion, and otherwise affirmed, without costs.
Within a four-month period in early 2002, Hera Construction, Inc. (Hera), a general contractor, commenced a New York action against plaintiff, a subcontractor, for breach of a construction contract, and plaintiff commenced a New Jersey action to recover payments under the construction contract from Hera and a surety from whom Hera had obtained a $1.6 million bond to cover the subcontractors' labor and material payments. Plaintiff retained Fogarty, originally as a partner of defendant law firm White & McSpedon and subsequently as a partner of defendant law firm Litchfield Cavo, LLP, to represent it in the New York action. However, in efforts to combine the two actions, Fogarty, inter alia, drafted a stipulation that discontinued the New Jersey action with prejudice, and allowed the surety company to appear in the New York action only as a third-party defendant. A jury trial resulted in a verdict in favor of plaintiff on its counterclaim against Hera; a judgment, including interest, was entered in the amount of $194,340.30. However, immediately following the jury verdict, the third party action was dismissed, since pursuant to CPLR 1007, suits against a third party can only be maintained for contribution or indemnification claims, neither of which could be properly asserted by plaintiff against the surety company. Subsequently, Hera proved to be judgment proof and plaintiff commenced this action.
The court erred in finding that plaintiff failed to state a cause of action for legal malpractice as against Fogarty. The complaint alleged that Fogarty was negligent in failing to protect and preserve plaintiff's claims against the surety company and that “but for” Fogarty's negligence in drafting the New York and New Jersey stipulations, and his corresponding failure to protect plaintiff's claims against the surety company, plaintiff would have been able to collect on its damages award against Hera ( see Bishop v. Maurer, 33 A.D.3d 497, 498, 823 N.Y.S.2d 366 [2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). These allegations met the requirements of a legal malpractice claim inasmuch as they set forth “ ‘the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages' ” ( see O'Callaghan v. Brunelle, 84 A.D.3d 581, 582, 923 N.Y.S.2d 89 [2011], quoting Leder v. Spiegel, 31 A.D.3d 266, 267, 819 N.Y.S.2d 26 [2006], affd. 9 N.Y.3d 836, 840 N.Y.S.2d 888, 872 N.E.2d 1194 [2007], cert. denied 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 [2008] ).
The court properly granted defendant Litchfield Cavo's motion to dismiss, since there was no evidence that Cavo, as superseding counsel, either contributed to the loss or could have done anything to correct the errors of predecessor counsel ( see Waggoner v. Caruso, 68 A.D.3d 1, 886 N.Y.S.2d 368 [2009], affd. 14 N.Y.3d 874, 903 N.Y.S.2d 333, 929 N.E.2d 396 [2010]; Rivas v. Raymond Schwartzberg & Assoc., PLLC, 52 A.D.3d 401, 861 N.Y.S.2d 313 [2008] ).
We have considered plaintiff's remaining contention and find it without merit.