Opinion
No. 151072/2014.
06-19-2015
Josephine AGOSTA and Michael Pivarnick, Plaintiffs, v. KUHARSKI, LEVITZ & GIOVINAZZO, ESQS., Defendants.
Opinion
The following papers numbered 1 through 3 were fully submitted on the 23rd day of April, 2015.
| Papers | Numbered |
|---|---|
| Defendant's Notice of Motion, dated February 6, 2015, with Exhibits and Supporting Papers | 1 |
| Plaintiffs' Affirmation in Opposition, dated March 25, 2015 | 2 |
| Defendant's Reply Affirmation of Jonathan R. Harwood in Support of Defendant's Motion to Dismiss the Complaint, dated April 20, 2015, with Supporting Papers | 3 |
The motion of defendant KUHARSKI, LEVITZ & GIOVINAZZA, ESQS. (hereinafter “KUHARSKI”) to dismiss the complaint of plaintiffs JOSEPHINE AGOSTA and MICHAEL PIVARNICK, pursuant to CPLR 3211(a)(1) and (7), is granted.
Plaintiffs retained KUHARSKI to represent them in an action to recover damages for personal injuries that they received after being struck by a vehicle when they were pedestrians on a roadway in Beach Haven, New Jersey. At the time of the incident, the operator of the motor vehicle was intoxicated and subsequently pleaded guilty to a number of violations associated with the accident. The case was filed by KUHARSKI in New Jersey Superior Court, Ocean County, New Jersey.
Plaintiffs allege that KUHARSKI was negligent because of its failure to prosecute a “Dram Shop” cause of action against the restaurant where the driver operator was served alcoholic beverages; that the firm did not include a cause of action for punitive damages against the driver in the complaint; that they were compelled to settle the matter (for an undisclosed sum) that was substantially less that would have been realized if the aforementioned claims had been included in the lawsuit; and that KUHARSKI allowed the time for pre-trial discovery to expire without conducting necessary discovery including the examination before trial of the operator.
The matter was settled after plaintiffs allegedly retained a new firm to represent them after discovery was complete and the matter was set for trial.
As set forth in Mackey Reed Electric, Inc. V. Morrone & Associates, P.C., 125 AD3d 822 [2015], “[O]n a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory [see Goshen v. Mutual Life Ins. Co. Of NY, 98 N.Y.2d 314, 326, (citations omitted), Leon v. Marshal, 84 N.Y.2d 83, 87 (citation omitted ) ].” To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages' “(Held v. Seidenberg, 87 AD3d 616, 617 [2011] ).” To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence “(see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 ) .” A plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant's malpractice might be reasonably inferred (see Fielding v. Kupferman, 65 AD3d 437, 442 [2009], Kempf v. Magida, 37 AD3d 763,764 [2007] )(emphasis added).
It is clear that plaintiffs' allegation that KUHARSKI failed to conduct pre-trial discovery in this case is baseless as KUHARSKI had, in fact, conducted the deposition of the operator of the vehicle on March 13, 2013 (A copy of the transcript of the examination before trial is attached to KUHARSKI's moving papers). In their opposition to this motion, plaintiffs acknowledge that their contention that the deposition was not taken was “incorrect” without providing any explanation for this false allegation.
Also unfounded is plaintiff's claim that a “punitive damages” cause of action against the operator of the vehicle should have been included in the complaint. In the State of New Jersey, in order “[T]o warrant a punitive award, the defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an evil minded act' or an act accompanied by a wanton and wilful disregard of the rights of another” (Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 NJ 37, 49, 447 A.D.2d 1224 [1984] ). Plaintiffs provide no information other than the operator had a Blood Alcohol Content of .12 at the time of the accident and that he subsequently pled guilty to driving while intoxicated. The operator testified that he stopped immediately after the accident; was not speeding; and was not drinking at the time of the accident. In addition, he testified as to the number of drinks that he had before the accident and when they were consumed. Plaintiffs fail to provide any evidence or other information to support any claim that the operator's conduct was “wantonly reckless or malicious” as the mere fact that the operator was intoxicated is insufficient to support a punitive damages claim. In addition, plaintiffs neglect to provide any basis for their claim that a “Dram Act” cause of action should have been commenced against another proposed defendant.
Lastly, plaintiffs claim that they “were forced to settle for an amount far less than if the matter had been handled with the appropriate degree of professional competence”. Plaintiffs neglect to provide the Court with any information as to the injuries that they received from the accident and/or the amount that they received when the matter was settled. Although, plaintiffs are not required to establish that they actually sustained damages, they are required to plead allegations from which damages attributable to the defendant's malpractice might be reasonably inferred (see Fielding v. Kupferman, supra.). As set forth above, plaintiffs have failed to establish that KUHARSKI failed to conduct pre-trial discovery or that KUHARSKI should have prosecuted a claim for punitive damages against the operator or a “Dram Shop” claim against the restaurant. As such, there is no basis for the Court to reasonably infer that plaintiffs were compelled to settle the action for less than fair value.
Accordingly, the motion of defendant KUHARSKI, LEVITZ & GIOVINAZZA, ESQS. to dismiss the complaint of plaintiffs JOSEPHINE AGOSTA and MICHAEL PIVARNICK, pursuant to CPLR 3211(a)(1) and (7), is granted.
This shall constitute the decision and order of the Court.