Opinion
INDEX NO. 159404/2016
09-25-2020
HEIDI SCHOENBERG Plaintiff, v. JAY DANKBERG, Defendant.
NYSCEF DOC. NO. 147 PRESENT: HON. ROBERT DAVID KALISH Justice MOTION DATE 08/06/2020 MOTION SEQ. NO. 004
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER). Motion by Defendant Jay Dankberg ("Defendant" or "Defendant Dankberg" or "Dankberg"), pursuant to CPLR 3212, for an order (a) granting Defendant summary judgment dismissing the complaint by Plaintiff Heidi Schoenberg ("Plaintiff") against him; (b) awarding him court and motion costs and disbursements incurred in the defense of this action; and (c) directing a hearing regarding a potential award of sanctions against Plaintiff, Plaintiff's father, and her attorney, is granted to the extent Plaintiff's complaint against Defendant is dismissed for the reasons stated herein.
BACKGROUND
In the instant matter before the Court, Plaintiff Heidi Schoenberg ("underlying Plaintiff" or "Plaintiff") is suing Defendant for Defendant's alleged legal malpractice in his representation of Plaintiff in an underlying personal injury action.
A. The Underlying Personal Injury Action
Plaintiff retained Defendant Dankberg as her attorney to represent her in the underlying matter of Schoenberg v. Li Xia Gu, No. 013961/2012 (Nassau County) ("the underlying action"), in which she sued a nail salon and its owner and employees ("the underlying defendant salon") alleging that she sustained personal injuries "as a result of her eyebrows negligently [being] waxed by [the salon]" on October and November of 2009. (Complaint in the underlying action, NYSCEF Doc. No. 111, generally & ¶ 12.) The complaint in the underlying action ("the underlying complaint") alleged that the salon "negligently, recklessly, and carelessly used a hazardous contaminated wax." (Id. ¶ 16.) The underlying complaint further alleged that the wax was contaminated because the salon used the "same vat of wax, which remained heated in a 'crock pot' at the facility for all patrons and customers until and after it became unfit for human use." (Id. ¶ 18.) The underlying complaint further alleged that "[f]resh wooden sticks, like 'popsicle sticks,' were used ... to apply the wax, but the same sticks were dipped into the same wax used by all patrons, thereby negligently becoming contaminated for further use by humans." (Id. ¶ 19.) The underlying complaint further alleged that as a result of, inter alia, the salon's negligence, Plaintiff suffered personal injuries. (See, e.g., id. ¶ 77.) The underlying complaint alleged eleven causes of action and asked for an award of compensatory damages in the amount not less than $1,000,000 for each cause of action plus punitive damages. (See generally id.)
According to Plaintiff's complaint in the instant legal malpractice action ("the instant complaint"), on August 30, 2013, the defendants in the underlying action filed a motion for an order, pursuant to CPLR 3126, dismissing the underlying action due to Plaintiff's failures to comply with her discovery obligations in the underlying action. (Complaint, NYSCEF Doc No 144, ¶ 17.)
Unless otherwise noted, all NYSCEF Document Nos. refer to documents filed in the instant malpractice action.
Further, according to the instant complaint and as submitted into the record, in an order dated November 26, 2013, Plaintiff was ordered to serve said discovery responses within 30 days of the date of the order in the underlying action. (Id. ¶ 18.) The order noted that "[i]n the event that the plaintiff fails to comply with the directives of this [o]rder, plaintiff's complaint shall be dismissed upon the Movant's submission of an Affirmation of Non-Compliance." (Id., citing Order dated Nov. 26, 2013, NYSCEF Doc No 133, Ex. A.)
Further, according to the instant complaint, a compliance conference was held in the underlying action on February 27, 2014, where counsel for the underlying defendant informed the court that "none of the discovery responses listed in the court's November 26, 2013 order had been provided by [underlying Plaintiff/Plaintiff]." (Id. ¶ 22.) According to the instant complaint, Plaintiff's attorney Dankberg was not present at said conference, but "instead hired a per diem attorney who was not familiar with [P]laintiff's case." (Id. ¶ 23.)
Following the conference, according to the documents submitted into the record, the underlying action was dismissed in a decision and order dated February 27, 2014 by Justice Parga. (Order dated Febr. 27, 2014, NYSCEF Doc No 116.) The court stated that the dismissal pursuant to CPLR 3126 was due to Plaintiff's failure to comply with judicial orders indicating Plaintiff failed to respond to a demand for a bill of particulars and to two notices for discovery and inspection. (Id.)
According to the instant complaint, on June 21, 2016, Plaintiff, by her new counsel, moved, by Order to Show Cause, for an order pursuant to CPLR 5015 (a)(1)(4) to vacate the February 27, 2014 Order and to compel Defendant Dankberg to turn over his legal file for the underlying personal injury action. (Complaint, NYSCEF Doc No 144, ¶ 31.)
According to the instant complaint and as submitted into the record, Plaintiff's motion to vacate was denied in a decision and order dated September 28, 2016, by Justice Parga. (Complaint, NYSCEF Doc No 144, ¶ 33; Order dated Sept 28, 2016, NYYSCEF Doc No 141/145.) In denying the motion to vacate, Justice Parga reasoned:
"... plaintiff does not establish the existence of a potentially meritorious action. In plaintiff's moving papers, she alleges in her affidavit that she was diagnosed with herpes virus and also human papilloma virus by two of her treating doctors. However, those doctor's [sic] records are not attached to the moving papers, nor is there an affidavit or affirmation from her treating doctors' corroborating the same.(Order dated Sept 28, 2016, NYSCEF Doc No 141/145.)
Finally, since almost seven years have elapsed between the date this action accrued and the date of the plaintiff's motion to vacate dismissal of her action, the defendants would be prejudiced if this action were reinstated."
B. The Present Malpractice Action
In the present action, Plaintiff alleges in the instant complaint that Defendant Dankberg "never took any steps to vacate the [February 27, 2014] [o]rder [dismissing the underlying action] and never informed [P]laintiff of its existence." (Complaint, NYSCEF Doc No 144, ¶ 26.) Plaintiff further alleges that "[d]uring the interim two-year period, [P]laintiff's father, Alan Schoenberg, had multiple phone conversations with [Defendant's] staff members, who repeatedly assured him that [P]laintiff's case was active and that [Defendant] was continuing to work on it." (Id. ¶ 28.) Plaintiff moreover alleges that "Plaintiff's [sic] first learned that her action had been dismissed on or about March 29, 2016, following an investigation by new counsel." (Id. ¶ 27.)
Plaintiff further alleges that "[a]t all times during the course of [Defendant's] representation of [P]laintiff [in the underlying action], [P]laintiff cooperated in the prosecution of her action and complied with all of [Defendant Dankberg's] requests for information and/or participation." (Id. ¶ 10.) Plaintiff argues that Defendant "did not comply with the Preliminary Conference Order [in the underlying action] and the ... outstanding discovery demands." (Id. ¶ 16.) Plaintiff alleges that "[Defendant] failed to prosecute the personal injury action in a proper, skillful and diligent manner." (Id. ¶ 35.) Plaintiff further alleges that "[i]f [Defendant] had prosecuted the personal injury action against the [underlying] defendants in a proper, skillful and diligent manner, he would have obtained judgment against [the underlying defendant] in favor of [P]laintiff." (Id. ¶ 36.) Plaintiff alleges that she was "damaged in an amount that exceeds the jurisdictional limits of the lower court." (Id. ¶ 37.)
1. Plaintiff's EBT
In her deposition in the current matter, Plaintiff states that, she had been going to the underlying defendant salon "every two weeks for the past few years prior to the incident" to get her "eyebrows done." (Plaintiff EBT dated Oct. 26, 2018, NYSCEF Doc No 118, at 105:18-106:11.) Plaintiff states that "one day" in October 2009, she noticed some kind of inflammation on her face "[s]horlty after [she] had eyebrows waxed from the salon." (Id. at 105:07-11; 107:19-25.)
In the deposition, Plaintiff is asked, "How did you acquire the knowledge that the wax at a particular time was used on you was contaminated?" (Id. at 129:22-25.) Plaintiff responds, "Because that is what my doctor [Dr. Lish] told me." (Id. at 130:09-17.)
2. Plaintiff's Witness Salon Owner Gu ("Gu")'s EBT
In her deposition in the current matter, non-party Gu states that she has been the owner of the subject nail salon for seventeen years at the time of the deposition. (Gu EBT dated Aug. 5, 2019, NYSCEF Doc No 119, at 08:02-04.) Gu states that "the sticks [for waxing] are being dipped into the same [vat] for about a week." (Id. at 45:18-46:04.) Gu states that different sticks and waxing cloths are used for each customer. (Id.)
In the deposition, Gu further states that one time she directed her salon employee to stop performing wax on Plaintiff's face as Plaintiff had bumps "all over her face[,]... not just around the eyebrow." (Id. at 40:15-20; 43:20-22.) Gu states that she immediately told Plaintiff's father that Plaintiff had skin problems. (Id. at 41:08-09.)
C. The Instant Motion
At present, Defendant Dankberg, pursuant to CPLR 3212, seeks an order (a) granting Defendant summary judgment dismissing Plaintiff's legal malpractice action against Defendant; (b) awarding court, motion costs and disbursements incurred in defense of this allegedly frivolous action; and (c) directing a hearing regarding a potential award of sanctions against plaintiff, her father, and her attorney. (Defendant's Notice of Motion, NYSCEF Doc. No. 106; Aff in Supp, NYSCEF Doc No 107; Memo in Law, NYSCEF Doc No 109.)
DISCUSSION
A. Summary Judgment Standard
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Id.) Once this showing has been made, the burden shifts to the nonmoving party to produce "evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) The affirmation from an attorney who has no personal knowledge of the facts is without evidentiary value and, therefore, is insufficient to raise a triable issue of fact. (Id. at 563.) However, in the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226 [1st Dept 2002].) Further, on a motion for summary judgment, a court must view the facts in the light most favorable to the non-moving party and draw every available inference in the favor of the non-moving party. (Torres v Jones, 26 NY3d 742, 763 [2016] [internal citations omitted].)
B. Legal Malpractice
A cause of action to recover damages for legal malpractice in the litigation context has three elements: "(1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action." (Cummings v Donovan, 36 AD3d 648, 648 [2d Dept 2007].)
"To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice." (Rojas v Paine, 125 AD3d 745, 746 [2d Dept 2015].)
In evaluating whether the attorney breached his duty to exercise the appropriate care, skill, and diligence, "[t]he standard to which the defendant's conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified." (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846). "The general rule is that an attorney may be held liable for ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action." (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990].) It may also be malpractice to fail to keep the plaintiff apprised of the lawsuit and fail to obtain discovery. (Bernstein, 160 AD2d at 429.) For instance, in a spoliation of evidence situation, it is counsel's professional responsibility to monitor the party's efforts to retain and produce the relevant documents. (Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 34 [N.Y. Sup Ct, New York County 2017] [internal citation omitted].)
To establish the element of causation, a plaintiff "must meet the case within a case requirement, demonstrating that 'but for' the attorney's conduct the client would have prevailed in the underlying matter or ['but for' the attorney's conduct, the client] would not have sustained any ascertainable damages." (Gonzalez v Ellenberg, 5 Misc 3d 1023(A) [ Sup Ct 2004]; see also Kluczka v Lecci, 63 AD3d 796 [2d Dept 2009]; Barnett v Schwartz, 47 AD3d 197, 203 [2d Dept 2007] ["In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either 'the' or 'a' proximate cause of damages, but require proof that, 'but for' the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.)."].) "The failure to demonstrate proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent." (Kluczka v Lecci, 63 AD3d 796 [2d Dept 2009].) Conclusory allegations of damages or speculative injuries are insufficient to sustain a legal malpractice action. (Gail v Colon-Sylvain, 151 AD3d 698, 700 [2d Dept 2017].)
However, "[a] plaintiff can make out a prima facie case showing the existence of negligence and causation by way of circumstantial evidence." (Cormack v Cross Sound Ferry Services, Inc., 273 AD2d 433, 433 [2d Dept 2000].) "To establish a prima facie case of negligence based wholly on circumstantial evidence, it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." (Schneider v Kings Highway Hosp. Ctr., Inc., 67 NY2d 743, 744 [1986].) "The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence." (Id. at 744.) "Rather, her proof must render those other causes sufficiently 'remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence." (Id.) "A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency." (Gayle v City of New York, 92 NY2d 936, 937 [1998] [internal citations and quotations omitted].)
C. Parties' Contentions
Defendant argues that Plaintiff is unable to prove: (1) that his legal services representing Plaintiff in the underlying action were not performed with reasonable care; and/or (2) that such negligence was the proximate cause of the actual damages sustained by Plaintiff; and/or (3) that but for Defendant's alleged malpractice, Plaintiff would have been successful in the underlying action.
First, Defendant argues that his legal services were performed with reasonable care but "[P]laintiff's [own] conduct was involved in the loss of the original litigation." (Memo of Law, NYSCEF Doc No 109, at 2.) Defendant adds that the underlying action was dismissed "due to no fault of [his] own[,]"—rather it was dismissed because Plaintiff failed to "provide any evidence" in the case. (Id. at 5, 8.) Defendant further argues that despite his repeated requests to Plaintiff's father, Plaintiff and Plaintiff's father failed to provide him with proof of negligence in the underlying action. (Def's Aff in Supp, NYSCEF Doc No 107, ¶¶ 19, 22, 23, 28, 29, 33.)
Second, Defendant argues that Plaintiff had the opportunity to vacate the dismissal and litigate the underlying action again but "[o]ver two years after the case was dismissed, a successor attorney move[d] to try to vacate the dismissal, [and] was met with the same issues, no actual evidence that [the underlying defendant] actually caused the alleged ailments." (Memo of Law, NYSCEF Doc. No. 109, at 9.)
Third, Defendant argues that Plaintiff "could never have been successful had the original case gone to trial." (Def's Aff , NYSCEF Doc No 107, ¶ 78-82.) Defendant further argues that "[P]laintiff never provided any direct evidence ... [in the underlying action that] she contracted HPV or Flatwarts due to the Salon's negligence." (Def's Aff, NYSCEF Doc No 107, ¶ 41.)
Specifically, Defendant argues that Plaintiff failed to demonstrate in the underlying action that:
1) the nail salon used contaminated wax;
2) the salon used "double dipping" of the wax;
3) the wax used by the salon was [n]ever tested;
4) there were no other sources of plaintiff to have been caused to contract Herpes, Flat Warts or a[n]y other easily sexually transmitted illness;
5) the salon committed any negligent act(s); [and]
6) the plaintiff or her father complied with several judicial orders of pre-trial discovery etc." (Def's Aff, NYSCED Doc No 107, ¶ 73.)
Relatedly, Defendant argues that Plaintiff's "entire argument of her personal injury claim" in the underlying action is "completely a hearsay statement[.]" (Memo of Law, NYSCEF Doc No 109, at 12; Def's Aff, NYSCEF Doc No 107, ¶ 77.) Defendant states that "during [his] representation, [he was] promised []medical documentation demonstrating that the Salon was using 'contaminated wax' which caused her ailments [but] [n]o such proof was adduced." (Memo of Law, NYSCEF Doc No 109, at 12.)
Further, Defendant submits an affirmation by Douglas Altcheck, MD, a dermatologist licensed to practice medicine in New York, who after a review of the medical records of Plaintiff, states that "the alleged diagnosis or diagnoses of herpes simplex, herpes zoster, and verrucae planae were never established or confirmed." (Def's Witness Altcheck Affirm in Supp, NYSCEF Doc No 108, ¶ 12.) Altcheck asserts that "[d]iagnostic tests should have been and were never performed either of the lesion or lesions on the plaintiff's face." (Id.) Altcheck further states in his affirmation that "[n]o attempt was made to perform viral cultures on the wax at the Salon." (Id. ¶ 13.) Altcheck concludes that it is "impossible to establish a cause and effect between procedures performed at the Salon with whatever outbreak might have occurred to the plaintiff." (Id. ¶ 14.)
In opposition, Plaintiff's counsel argues that Defendant failed to establish prima facie that he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and/or that the attorney's breach of this duty did not proximately cause plaintiff to sustain damages. (Plaintiff's Counsel's Affirm in Opp, NYSCEF Doc No 120, at 1.)
First, Plaintiff's counsel argues that Defendant "has not attached one document ... demonstrating that he ever communicated to Plaintiff or her father that he required discovery to oppose a motion to dismiss in the underlying personal injury action." (Id. ¶ 17.) Plaintiff's counsel further argues that, "[t]o make matters worse, Dankberg did not provide any proof that he actually informed Plaintiff or her father that the underlying personal injury action was eventually dismissed." (Id.)
Second, Plaintiff's counsel argues that "Defendant's negligence caused Plaintiff's underlying personal injury action to be dismissed." (Id. ¶ 18.)
Third, Plaintiff's counsel argues that "Plaintiff could have and would have prevailed had the underlying personal injury action continued, as the testimony of the owner of the Nail Salon [Lisa Gu] establishes that the same vat of wax was used on multiple customers without being changed and could have been contaminated." (Id. ¶¶ 19, 61.) Plaintiff's counsel further argues that "a jury could find that the Nail Salon in the underlying personal injury action was negligent in utilizing the same vat of wax on other customers, which could have been contaminated, which caused Plaintiff's injuries." (Id. ¶ 72.) Plaintiff's counsel further argues that "the testimony of Lisa Gu itself demonstrates that Plaintiff would have prevailed in her negligence claim against the Nail Salon." (Id. ¶ 55.)
In reply, Defendant initially argues that Plaintiff failed to demonstrate with admissible evidence that Defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. Defendant argues that Plaintiff's counsel's statement in his affirmation, (Plaintiff's Counsel's Affirm in Opp, NYSCEF Doc No 120 ¶ 35), does not raise an issue of fact as to whether Defendant reached out to Plaintiff asking for discovery. Defendant argues that Plaintiff's counsel does not have personal knowledge of the facts and, therefore, his statement is of no probative or evidentiary value; and, alternatively, if he has personal knowledge of the facts—as Plaintiff's counsel Shirian states in his affirmation "I have personal knowledge of the within facts—then, Defendant argues, Shirian cannot be Plaintiff's attorney. (NYSCEF Doc No 142 at 2-5.)
Defendant additionally argues that he established prima facie—with expert opinion—that Plaintiff failed to demonstrate that "but for" his conduct she would have prevailed in the underlying matter or would not have sustained any ascertainable damages. (Id. at 9.) Defendant further argues that Altcheck, the expert for Defendant, stated that he examined the records provided by Plaintiff and subsequently made the determination that "[P]laintiff could not have contracted the diseases she claims to have contracted from the nail salon." (Id.) Defendant moreover argues that Plaintiff failed to raise an issue of fact. Defendant lastly argues that "Plaintiff has never produced any medical documentation and/or any Affirmation/Affidavit from any expert claiming plaintiff actually contracted 'shingles,' HPV, or any other diseases from the nail salon and/or wax." (Id. at 5-6.) Defendant adds that, again, Plaintiff's counsel's affirmation to the contrary is of no probative value. (Id. at 7-8.)
D. Application
Preliminarily, this Court rejects Plaintiff's counsel's argument that the motion should be automatically denied because Defendant did not attach copies of the pleadings to his moving papers. In the age of electronic filing, the failure to attach copies of the pleadings in the instant action presents a minor inconvenience; and, moreover, Defendant remedied this failure by attaching copies to his reply papers.
To succeed on his motion for summary judgment, Defendant Dankberg must present evidence in admissible form establishing that Plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice." (Rojas v Paine, 125 AD3d 745, 746 [2d Dept 2015].) Stated differently, in order for Defendant Dankberg to prevail on his summary judgment motion: (1) he must establish that he "provided the advice, and conducted the due diligence expected of counsel exercising the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession[,]" (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015]); or, (2) if Defendant Dankberg fell short of this professional standard, he must demonstrate that his conduct was not the proximate cause of Plaintiff's damages. (Id. at 50; see also Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013]; Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010].) As discussed below, the Court concludes that Defendant Dankberg presents evidence in admissible form, through expert opinion, establishing that Plaintiff is unable to prove at least one essential element of her cause of action alleging legal malpractice—namely the element of proximate causation.
On the first element, Defendant Dankberg fails to present sufficient evidence in admissible form establishing as a matter of law that he acted with the sufficient skill and care of an ordinary member of the legal profession. While uncontradicted testimony by itself can be sufficient to establish entitlement to summary judgment, it strains credulity that an attorney in Dankberg's position would not keep one piece of documentation establishing that he notified Plaintiff that he was requesting information that was in the possession of Plaintiff and/or attempted to communicate with Plaintiff or Plaintiff's father in order to to avoid the underlying action being dismissed pursuant to CPLR 3126. (Cf. Gonzalez v Ellenberg, 5 Misc 3d 1023(A) [ Sup Ct 2004] ["[C]onclusory, self-serving statements with no expert or other evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care is not sufficient to sustain this burden."].) The Court further notes that Defendant has failed to sufficiently explain why the underlying defendant's CPLR 3126 motion was unopposed by Dankberg although Dankberg took on the underlying case and he further verified the underlying Plaintiff/Plaintiff's complaint against the underlying defendant stating that he had reviewed "documents, files and books and records maintained by plaintiff." (NYSCEF Doc No 111 [Attorney Verification].) Moreover, there is no evidence or any assertion that Dankberg communicated to his client that the action was dismissed pursuant to CPLR 3126, and that he discussed any potential next steps with his client thereafter. (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 434-35 [1st Dept 1990]; cf. Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 34 [N.Y. Sup Ct, New York County 2017] [internal citation omitted].)
Nevertheless even if Defendant Dankberg was negligent in failing to respond to the discovery requests which then resulted in the dismissal of the underlying action, this Court finds that the instant action must be dismissed because Defendant Dankberg has demonstrated that his conduct was not the proximate cause of Plaintiff's damages, as there would be no reasonable basis for a fact finder in the underlying action to award judgment in favor of Plaintiff. (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015].)
Defendant Dankberg submits an affirmation by Douglas Altcheck ("Altcheck"), MD, a dermatologist licensed to practice medicine in New York, who after a review of the medical records of Plaintiff, opines that the alleged personal injuries in the underlying action were never established, and even if they were established, there was no relation established linking such injuries to the underlying defendant salon. Altcheck states that "[d]iagnostic tests should have been and were never performed either of the lesion or lesions on the plaintiff's face." (Def's Witness Altcheck Affirm in Supp, NYSCEF Doc No 108, ¶ 12.) Altcheck further states in his affirmation that "[n]o attempt was made to perform viral cultures on the wax at the Salon." (Id. ¶ 13.) As Altcheck explained, "herpes simplex, herpes zoster, and flat warts are extremely common in the age group of the plaintiff" and they "could have easily been acquired" through activities totally unrelated to the salon, such as "sports activities, sun exposure, stress, and close contacts with other individuals." (Id. ¶ 11.) Altcheck states that, as such, without any laboratory analysis of plaintiff's lesions and the subject wax, it would be "impossible to establish a cause and effect between procedures performed at the Salon with whatever outbreak might have occurred to the plaintiff." (Id. ¶¶ 4, 12-14.)
In response, Plaintiff has failed to raise a triable issue of material fact. Plaintiff fails to provide contradictory testimony from another qualified opinion witness, some other physical evidence, or other testimony from which a jury could conclude that it was more likely or more reasonable that the underlying defendant was negligent or that the alleged injury was caused by the underlying defendant's negligence rather than by some other agency. (See Gayle v City of New York, 92 NY2d 936, 937 [1998]; compare Tuttle v Coach Nail Salon, Inc., 29 AD3d 981, 982 [2d Dept 2006].) Plaintiff's counsel's assertions are not evidence in admissible form sufficient to raise triable issues of fact. (Zuckerman, 49 NY2d at 562.) Plaintiff relies on supposed statements by Dr. Lish who allegedly examined her and informed her that her alleged injuries were caused by the wax. This hearsay statement is inadmissible for purposes of establishing causation, and without further context, a fact-finder could not determine the degree of professional certainty behind such a statement and analyze its reliability. Notably, Plaintiff states in the same deposition that she never brought a sample of said wax to Dr. Lish or to another doctor or to any testing laboratory. (Plaintiff EBT dated Oct. 26, 2018, NYSCEF Doc No 118, at 130:23-132:12.)
Further, Plaintiff's counsel's reliance on the testimony of Gu is misplaced. (See Plaintiff's Counsel's Affirm in Opp, NYSCEF Doc No 120, ¶ 19.) Gu's testimony does not establish that said wax was contaminated. (Rossoto v Vadher, 220 AD2d 569, 570 [1995].) Further, the testimony of Gu does not sufficiently create an issue of fact that the methods used by the underlying defendant salon was a proximate cause of Plaintiff's alleged injuries either directly or circumstantially.
Lastly, Plaintiff had the opportunity to vacate the dismissal which was entered against her on February 27, 2014 for failure to comply with the Court's directives relative to discovery. However, Plaintiff again failed to provide the discovery responses "which were impetus for the dismissal of her action." (Order dated Sept 28, 2016, NYYSCEF Doc No 141/145 [denying Plaintiff's motion to vacate the dismissal of the February 27, 2014 order].) Indeed, the judge in the underlying action emphasized that "plaintiff does not establish the existence of a potentially meritorious action. In plaintiff's moving papers, she alleges in her affidavit that she was diagnosed with herpes virus and also human papilloma virus by two of her treating doctors. However, those doctor's [sic] records are not attached to the moving papers, nor is there an affidavit or affirmation from her treating doctors' corroborating same." (Id.)
As such, based on the evidence provided on this motion, this Court finds that, even if the underlying action was not dismissed pursuant to CPLR 3126, there were no "evidentiary routes" by which a fact-finder could have found the underlying defendant liable for the alleged injuries. (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [1st Dept 2011].)
With regard to Defendant's requests for sanctions, costs, and fees on this motion, that is denied. (See 22 NYCRR 130-1.1.) While this Court grants the instant motion, this decision should not be construed as an endorsement of Defendant Dankerg's skill, care and/or attention to his obligations as a member of the legal profession. That issue is not before the Court. As with any motion for summary judgment, the question for this Court is whether there is a genuine issue of fact requiring a trial. As explained above, this Court finds that there is not—and that is all this Court finds.
The Court has considered the parties' other arguments and finds them to be unavailing and/or academic in light of the above analysis.
CONCLUSION
Accordingly, and for the reasons so stated, it is hereby
ORDERED that the motion by Defendant Jay Dankberg ("Defendant"), pursuant to CPLR 3212, for an order granting Defendant summary judgment dismissing the complaint is granted in part to the extent said complaint is dismissed and the motion is otherwise denied; and it is further,
ORDERED that counsel serve a copy of this order with notice of entry upon all parties and the clerk of the court within 20 days of the filing of this order; and it is further,
ORDERED that Defendant is not entitled to costs and disbursements pursuant to CPLR 8101 as to grant such would be inequitable; and it is further,
ORDERED that the clerk shall enter judgment accordingly, upon being served with a copy of the decision and order with notice of entry.
The foregoing constitutes the Decision and Order of this Court. 9/25/2020
DATE
/s/ _________
ROBERT DAVID KALISH, J.S.C.