Opinion
Index No. 100962/2017 Motion Seq. No. 006
03-20-2023
SANG SEOK NA, Plaintiff, v. MALIK & ASSOCIATES, P.C., PANKAJ MALIK, and MUZAMIL JAMIL, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN, Justice.
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
In this legal malpractice action, defendants Malik & Associates, P.C. and Malik (collectively, Malik defendants), move pursuant to CPLR 3212 for an order granting them summary dismissal of the complaint as against them. Plaintiff, self-represented, does not oppose the motion, but cross-moves for, among other things, partial summary judgment against all defendants pursuant to CPLR 3212. Defendant Jamil cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against him. As plaintiff failed to appear for oral argument on the motion despite due notice thereof, his opposition is not considered and in any event is without merit.
I. PERTINENT BACKGROUND
This malpractice action arises from legal representation plaintiff received in a personal injury action he commenced in 2003 against Greyhound Lines Inc. (Index no. 13453/03 [Sup Ct, Queens County]) (NYSCEF 137-139), which had the following procedural history, according to a decision on plaintiffs motion to restore it to active status:
This action was stricken from the trial calendar on May 10, 2006. A motion to restore was filed on April 10, 2007 and subsequently withdrawn on October 16, 2007. In January 2008, plaintiff changed attorneys for the fourth time and retained the firm of Sapone & Schietroma, P.C. By letter dated January 28, 2008, counsel for the defendant requested responses to outstanding discovery and the rescheduling of plaintiffs deposition and physical examination. In response, plaintiffs attorney, Paul Schietroma, indicated further discovery would be provided once his file was reconstructed. During the remainder of 2008, plaintiff made inquiries into retaining new counsel to pursue this action and an additional medical malpractice claim. In December 2008, the firm of Sapone & Schietroma, P.C. was dissolved and plaintiff determined that he would continue to be represented by Mr. Schietroma in this matter. It was not until May 2009 that Mr. Schietroma discovered that the case had been stricken from the calendar. An oral request made to defense counsel in June 2009 to consent to restoration of the case was refused.
Thereafter, the motion to restore was filed in March 2010, and was subsequently denied, on the ground that:
While counsel may have experienced uncertainty concerning his continued representation of plaintiff that was further complicated by the dissolution of his firm, it is clear that no diligent efforts were undertaken to determine the status of this case until May 2009. Outstanding discovery was never provided to the defendant. In addition, even after defendant's refusal to consent to restore this matter, Mr. Schietroma waited until March 2010 to serve this motion. As a result, plaintiff has failed to demonstrate a reasonable excuse for the delay or rebut the presumption of abandonment. Moreover, since nine years have now elapsed since the accident occurred, the defendant would be prejudiced if this action were restored to the trial calendar.(citations omitted).
In October 2011, the Appellate Division, Second Department upheld the dismissal of the Greyhound action (88 A.D.3d 980 [2d Dept 2011]), and between June 2012 and December 2014, plaintiff commenced three legal malpractice actions in various state courts related to the dismissal, which are in issue here and discussed further (infra., II).
In April 2015, plaintiff signed a retainer agreement with the Malik defendants, by which he retained them in connection with his pending legal malpractice actions (along with a medical malpractice case which is not relevant to this action), and they agreed to file opposition and/or a cross motion to two pending motions in the malpractice actions, as well as to "review entire file and research issues presented" (NYSCEF 85). Defendant Jamil is an attorney who worked for the Malik defendants on plaintiffs cases (NYSCEF 190).
In July 2017, plaintiff, self-represented, commenced this action against defendants, asserting, among other things, claims of legal malpractice, fraud, fraudulent concealment, negligent misrepresentation, negligence, breach of fiduciary duty, and breach of contract (Doc No. 191).
II. MOTION AND CROSS MOTION FOR SUMMARY JUDGMENT
A. Malpractice related to Action No. 1 (Index No. 701527/13 TSup Ct. Bronx County!)
1. Procedural background
In June 2012, plaintiff commenced a legal malpractice action against Sivin & Miller, LLP (Firm No. 1), Sapone & Schietroma, P.C. (Firm No. 2), Schietroma, P.C. (Firm No. 3), and Schietroma, individually. According to the justice presiding in the matter, plaintiff alleged that Firm No. 1 failed to prevent the Greyhound action from being stricken from the calendar and eventually dismissed, and that Firm Nos. 2 and 3 failed to inform him of the action's status and to move timely to restore it (index no. 701527/13, NYSCEF 28).
Firm No. 1 moved for summary judgment in the action in October 2013, which plaintiff did not oppose (id.). The motion was granted on the ground that plaintiffs malpractice claim was barred by the applicable statute of limitations, and plaintiffs claims against Firm No. 1 were thus severed and dismissed (id). It does not appear that plaintiff appealed this decision.
In February 2015, Firm Nos. 2 and 3 and Schietroma (collectively, the Schietroma defendants) moved for summary dismissal of the complaint against them (id., NYSCEF 41). The motion was returnable in March 2015, and later adjourned to May 2015 (id., NYSCEF 56).
In April 2015, plaintiff retained Malik and Malik P.C. as his attorneys (id., NYSCEF 57), and in June 2015, Malik submitted opposition to defendants' summary judgment motion (id., NYSCEF 60). In September 2015, plaintiff discharged Malik as his attorney and elected to proceed pro se (id., NYSCEF 65).
By decision and order dated September 17, 2015, the summary judgment motion was granted as the Schietroma defendants demonstrated that plaintiff was unable to prove that he would have prevailed in the Greyhound action but for their alleged negligence, and plaintiff failed to raise a triable issue (id., NYSCEF 67). Plaintiff appealed the decision on his own (id., NYSCEF 72).
In July 2018, the Appellate Division, Second Department, affirmed the dismissal, finding that plaintiff failed to raise a triable issue in his opposition papers as his arguments consisted "entirely of speculation and conclusory assertions." (163 A.D.3d 597 [2d Dept 2018]).
2. Analysis
As the party seeking summary dismissal of plaintiffs complaint, defendants bear the burden of demonstrating that plaintiff cannot establish the essential elements of a claim for legal malpractice (see Sabalza v Salgado, 85 A.D.3d 436, 437 [1st Dept 2011]), which include: "that the defendant attorney failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence" (AmBase Corp. v Davis Polk& Wardwell, 8 N.Y.3d 428, 434 [2007] [internal quotation marks and citations omitted]; see Nomura Asset Capital Corp. v Cadwalader, Wicker sham & Taft LLP, 26 N.Y.3d 40, 49-50 [2015]).
Here, as to the dismissal of plaintiff s claim against Firm No. 1, that claim was dismissed before plaintiff retained defendants, and thus they cannot be held liable for any alleged malpractice related thereto.
While defendants submitted opposition to the summary judgment motion filed by the Schietroma defendants, they demonstrate that plaintiff cannot establish that the motion was granted because of any errors or negligence on their part. As both the trial court and Appellate Division found, plaintiff was unable to establish that he would have prevailed in the Greyhound action but for the Schietroma defendants' negligence, as his claim that if they had filed a timely motion to restore, the trial court would have granted it, the action would have been restored, and plaintiff would have prevailed on his claim against Greyhound, was fatally speculative (see eg, Makov v Barrows, 208 A.D.3d 401 [1st Dept 2022] [plaintiff did not show he would have prevailed absent malpractice based on claim that attorney failed to timely sue proper parties, leading to dismissal of action; his "citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed the underlying action had defendant timely commenced it by naming the proper parties in the original complaint"]; York v Frank, 209 A.D.3d 804, [2d Dept 2022] ["plaintiffs allegations as to how the Supreme Court might have ruled had her attorney moved ex parte for an order of preclusion were speculative"]).
While plaintiff also alleges in his complaint that defendants' opposition papers to the summary judgment motion were "seriously deficient" as they were missing exhibits and contained a nonexistent case citation, and that he would have prevailed on the summary judgment motion but for those errors, defendants submit proof that the "missing" exhibits were submitted to the trial court and the case citation contained a simple typographical error. In any event, neither of the alleged errors appeared to have any bearing on the courts' decisions.
Moreover, the previous courts' findings in the earlier malpractice actions estop plaintiff from relitigating both the merits of the Greyhound action and his attorneys' conduct related thereto, as held by the Appellate Division, Second Department in affirming dismissal of plaintiffs second malpractice action (discussed in the next section) - "[t]he issue of whether the plaintiff would have succeeded on the merits in the Greyhound action was raised, necessarily decided, and material in the first legal malpractice action, and the plaintiff had a full and fair opportunity to litigate the issue in that action" (Na v Schietroma, 172 A.D.3d 1263 [2d Dept 2019]; see also Kinberg v Schartzapfel, et ah, 136 A.D.3d 431 [1st Dept 2016] [where plaintiffs underlying action was dismissed and her motion to vacate dismissal was denied based on her failure to establish merits of claim, plaintiff was collaterally estopped from relitigating merits of action in legal malpractice claim]).
Therefore, defendants have met their burden of showing that plaintiff cannot establish causation because he cannot demonstrate that he would have been successful in the Greyhound action but for the Schietroma defendants' malpractice, and, thereby, he also cannot establish that he would have prevailed in an action against the Schietroma defendants but for defendants' malpractice (see Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP, 180 A.D.3d 611, 613 [1st Dept 2020], Iv dismissed & denied 36 N.Y.3d 959 [2021], 38 N.Y.3d 907 [2022]). As plaintiffs papers are not considered, he raises no triable issue.
B. Malpractice related to Action No. 2 (Index No. 704486/14 TSup Ct, Queens County!)
1. Procedural background
In this action, plaintiff sued the Schietroma defendants for legal malpractice, alleging that they failed to advise him that he had to commence a legal malpractice action against Firm No. 1 by, at the latest, January 17, 2011. The complaint was filed by a non-party attorney.
In August 2014, the defendants moved, pre-answer, to dismiss the complaint, and plaintiffs then-attorney filed opposition to the motion (Index no. 704468/14, NYSCEF 7, 12). The motion was fully submitted in September 2014.
On April 13, 2015, defendant Malik filed a notice of appearance on plaintiffs behalf (id., NYSCEF 26).
By decision and order dated April 30, 2015, the defendants' motion to dismiss was granted only to the extent of dismissing plaintiffs malpractice claims against Firm No. 2 as time-barred (id., NYSCEF 27).
On September 11, 2015, plaintiff discharged the Malik defendants from representing him and elected to represent himself (id., NYSCEF 32).
In January 2016, the remaining defendants moved for summary judgment, and plaintiff submitted opposition to the motion, although it is not e-filed; it is also unclear whether the opposition was submitted by plaintiff himself or his new attorney, if any.
By decision and order dated September 15, 2015, the justice assigned to the matter granted the motion on the ground that the remaining defendants established that they were never hired to represent plaintiff in any malpractice action against Firm No. 1, and that "plaintiff submitted] no admissible opposition to the instant motion." (id., NYSCEF 58).
On appeal, the decision was affirmed, with the Court finding that plaintiffs claims against the remaining defendants were barred by collateral estoppel, to wit:
In order for the plaintiff to recover damages for legal malpractice against the Schietroma defendants based on their alleged failure to advise him of a potential legal malpractice claim against [Firm No. 1], the plaintiff must prove that he would have prevailed in a legal malpractice action against [Firm No. 1], but for the Schietroma defendants' negligence. In order for the plaintiff to prevail in a legal malpractice action against [Firm No. 1], the plaintiff must prove that he would have prevailed in the Greyhound action, but for [Firm No. l]'s negligence.
Thus, the Court determined, the issue of whether plaintiff would have succeeded on the merits in the Greyhound action was previously raised, necessarily decided, and material in the first legal malpractice action, and plaintiff had a full and fair opportunity to litigate it. (172 A.D.3d 1263 [2d Dept 2019]).
2. Analysis
Plaintiffs legal malpractice claim against Firm No. 2 was dismissed based on motion papers submitted by predecessor counsel, not by defendants. As to the claims against Firm No. 3 and Schietroma, plaintiff had fired defendants from representing him four months before the summary judgment motion was filed, and he represented himself thereafter and filed his own opposition papers. As defendants had no role in and took no action with respect to either dismissal motion in this action, they cannot be held liable for any alleged malpractice.
C. Malpractice related to Action No. 3 (Index No. 101567/14 [Sup Ct, New York County!)
1. Procedural background
In December 2014, plaintiff, pro se, filed a summons and complaint against Firm No. 1 for legal malpractice. In April 2015, Malik defendants filed a notice of appearance for plaintiff.
By July 2017, plaintiff was again representing himself, and he filed a first amended verified complaint.
In October 2017, still self-represented, plaintiff filed a motion for a default judgment against defendant, and defendant then cross-moved for dismissal and/or summary judgment dismissing the complaint.
In January 2018, the justice presiding denied plaintiffs motion for a default judgment and granted the cross motion to dismiss, finding that the action was "substantially identical to an action in Queen County Supreme Court [that was] dismissed on 6/30/14."
2. Analysis
As defendants had no role in and took no action related to the motion practice in this action, and had stopped representing plaintiff before he filed his pro se motion for a default judgment and opposed the defendant's cross motion, there is no basis for holding them liable for the alleged malpractice.
D. Claims against defendant Jamil
In plaintiffs complaint, he asserts two claims against Jamil personally: (1) that Jamil induced plaintiff to sign a pro se complaint related to Action No. 3 against Firm No. 1; and (2) that he fraudulently misrepresented to plaintiff that he had no action against Firm No. 1 for legal malpractice and should instead pursue a claim related to Firm No. l's alleged misappropriation of settlement funds (NYSCEF 191).
Jamil denies the allegations and submits evidence showing that he advised plaintiff to not proceed unrepresented, and that he correctly advised plaintiff that the legal malpractice case against Firm No. 1 had no merit as it was barred by collateral estoppel (NYSCEF 195). As Jamil thereby establishes that plaintiffs allegations against him are contradicted by the evidence, he demonstrates his prima facie entitlement to dismissal of plaintiff s claims against him.
E. Non-malpractice claims
Plaintiffs remaining claims for fraud, fraudulent concealment, negligent misrepresentation, breach of fiduciary duty, and breach of contract are all "based on the same alleged conduct amounting to legal malpractice" and no allegation is "separate and distinct from the alleged legal malpractice" (6645 Owners Corp. v GMO Realty Corp., 306 A.D.2d 97, 98 [1st Dept 2003]). Therefore, defendants have made a prima facie showing that those claims are fatally duplicative because they "arise out of the same facts and seek the same damages as [his] legal malpractice claim" (Courtney v McDonald, 176 A.D.3d 645, 645-646 [1st Dept 2019] [dismissing duplicative breach of fiduciary duty and breach of contract claims]; see I.M.P. Plumbing & Heating Corp. v Munzer & Saunders, LLP, 199 A.D.3d 569, 571 [1st Dept 2021] [same as to negligent misrepresentation claim]; Brean Murray, Carret & Co. v Morrison & Foerster LLP, 165 A.D.3d 582,583 [1st Dept 2018] [dismissing fraud claims]; Townof Wallkill v Rosenstein, 40 A.D.3d 972, 974 [2d Dept 2007] [dismissing claim for fraudulent concealment]).
Plaintiffs claim that defendants violated Judiciary Law § 487 also must be dismissed, as he neither alleged nor established "the requisite chronic or extreme pattern of legal delinquency, or that such alleged conduct was the proximate cause of any loss" (Nason v Fisher, 36 A.D.3d 486, 487 [1st Dept 2007]; see Dinhofer v Medical Liab. Mut. Ins. Co., 92 A.D.3d 480, 481 [1st Dept 2012]). Nor may a claim be maintained based on a violation of disciplinary rule or Code of Professional Responsibility (see Weinberg v Sultan, 142 A.D.3d 767 [1st Dept 2016]).
E. Plaintiff s cross motion
Plaintiffs cross motion seeking summary judgment is denied as he fails to make a prima facie showing of his entitlement to summary judgment on any of his claims against defendants, and, moreover, his papers do not create any triable issues of fact in opposition to defendants' motions.
F. Removal of deposition transcripts
As plaintiff filed certain deposition transcripts in violation of 22 NYCRR 202.5-b(j), defendants are entitled to their removal, although I decline to impose sanctions on plaintiff.
III. CONCLUSION
Accordingly, it is hereby:
ORDERED that the motion by defendants Malik & Associates, P.C. and Pankaj Malik for summary judgment dismissing the complaint as against them is granted, and the complaint is dismissed as against defendants Malik & Associates, P.C. and Pankaj Malik; and it is further
ORDERED that the cross motion by defendant Muzamil Jamil for summary judgment dismissing the complaint as against him is granted, and the complaint is dismissed as against defendant Muzamil Jamil; and it is further
ORDERED that plaintiffs cross motion for summary judgment is denied; and it is further
ORDERED that the complaint is dismissed in its entirety, and the Clerk of the Court is directed to enter judgment accordingly; and it is further
ORDERED, that the NYSCEF filing clerk remove documents 117-132 from the e-filed docket forthwith, upon service on it of a copy of this or4er With notice of entry.