Opinion
No. 103987/10.
2010-11-30
LAW OFFICES OF E. ABEL ARCIA and Eloy Abel Arcia, Plaintiffs, v. GREGORY J. CANNATA & ASSOCIATES and Gregory J. Cannata Esq., Defendants.
Kevin J. Windels of D'Amato & Lynch, LLP, for defendants. John Tumelty of Tumelty & Spier, LLP, for Plaintiffs.
Kevin J. Windels of D'Amato & Lynch, LLP, for defendants. John Tumelty of Tumelty & Spier, LLP, for Plaintiffs.
EILEEN BRANSTEN, J.
Defendants Gregory J. Cannata & Associates and Gregory J. Cannata, Esq. (“Cannata”) move pursuant to CPLR 3211(a)(1) and (7) for an order dismissing the Verified Complaint. Plaintiffs Law Offices of E. Abel Arcia and Eloy Abel Arcia (“Arcia”) oppose the motion.
BACKGROUND
Eloy Abel Arcia is an individual and a resident of Nassau County, State of New York (Verified Complaint [the “Arcia Verified Complaint”] at ¶ 1; Affirmation of Kevin J. Windels in Support of Defendants' Motion to Dismiss [“Windels Affirm.”], Ex. 1). The Law Offices of E. Abel Arcia conducts business and has its principle place of business in Queens County, New York (Arcia Verified Complaint at ¶ 2).
The Underlying Personal Injury Action
Non–Party Jesus Portilla (“Portilla”) is an individual and a resident of Queens County, State of New York (Windels Affirm., Ex. 1, Verified Complaint [the “Portilla Malpractice Complaint”] at ¶ 1). On January 12, 2002, Portilla was involved in an accident while performing construction work and asbestos removal on a job site on South Street between Peck Slip and Dover Street in New York City (Portilla Malpractice Complaint at ¶ 44). Portilla sustained serious injuries ( id.).
After his accident, Portilla consulted with and retained the Law Offices of E. Abel Arcia & Flanagan (“Arcia & Flanagan”) to represent him in seeking recovery and damages for personal injuries sustained in the accident ( id. at ¶ 45). Arcia & Flanagan changed its name to the Law Offices of E. Abel Arcia after April 2002 ( id. at ¶ 27). On June 22, 2004, Arcia, on behalf of Portilla, commenced a lawsuit against Consolidated Edison Solutions, Inc. ( id. at ¶ 47; Windels Affirm., Ex. 2, Summons and Verified Complaint [the “Personal Injury Action”] ).
On December 23, 2004 Cannata advised Arcia that Portilla had retained it to represent Portilla in the Personal Injury Action (Windels Afirm., Ex. 6, letter dated December 23, 2004). Cannata attached to the December 23, 2004 letter a correspondence from Portilla to E. Abel Arcia whereby Portillo directed that Arcia cease work on his personal injury matter ( id.). Portillo further directs Arcia to send all of his case materials to the Cannata Defendants ( id.).
On December 28, 2004, Portilla executed a Consent to Change Attorney form (Windels Affirm., Ex. 3, Consent to Change Attorney). On January 4, 2005, the parties entered into a Stipulation whereby Arcia agreed to transfer the Personal Injury Action file to Cannata ( id., Stipulation). On January 13, 2005, Arcia sent a letter to Cannata, with the signed Consent to Change Attorney form and the stipulation ( id., letter dated January 13, 2005).
On April 21, 2006, the Honorable Allan B. Weiss dismissed the personal injury action (Windels Affirm., Ex. 4, Order dated April 21, 2006). Judge Weiss determined that defendant Consolidated Edison Solutions, Inc., had demonstrated that Portilla sued the wrong party ( id.). In a subsequent Order dated April 21, 2006, Judge Weiss also denied Portilla's motion for leave to file and serve a supplemental summons and amended complaint (Windels Affirm., Ex. 5, Order dated April 21, 2006). Judge Weiss held that the statute of limitations expired on January 12, 2005 ( id.).
The Malpractice Action
On October 11, 2006, Portilla commenced a malpractice action against Arcia & Flanagan, Arcia and James Robert Flanagan [the “Malpractice Action”] (Windels Affirm., Ex.1, Portilla Malpractice Complaint). In the Malpractice Action, Portilla alleged that the personal injury action was dismissed due to Arcia & Flanagan's and Arcia's negligence in filing suit against the wrong defendant and for failure to discover the error within the applicable statute of limitations period ( id., Portilla Malpractice Complaint at ¶ 52–53).
The Contribution Action
On March 26, 2010, Arcia commenced the instant action against Cannata (the “Contribution Action”) (Windels Affirm., Ex. 1, Arcia Verified Complaint). Arcia alleges that Cannata represented Portilla in the first action “for at least sixteen months before it was dismissed” and that Cannata did not properly appeal the Order dismissing the original action ( id., Arcia Verified Complaint at ¶ 13–15). Arcia asserts that if the Personal Injury Action's dismissal was due to legal malpractice, it was due to the legal malpractice of Cannata ( id. at ¶ 17). In the event Arcia is found liable in the Malpractice Action, he seeks “contribution against [Cannata] for their fair and equitable share of culpability” for Cannata's alleged malpractice in the Personal Injury Action and the Malpractice Action ( id. at ¶ 18). Arcia's complaint does not contain specific counts (Windels Aff., Ex. 1, Arcia Verified Complaint). Cannata now moves for an order dismissing the instant Arcia Verified Complaint.
ANALYSIS
In the context of a CPLR 3211 motion to dismiss, the court takes the facts alleged in the complaint as true and accords the benefit of every possible favorable inference to the non-movant ( see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 NY3d 582, 591 [2005] ). “[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1997] ). The court will grant a motion to dismiss under CPLR 3211(a)(1) “only if the documentary evidence submitted exclusively establishes a defense to the asserted claim as a matter of law” ( 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 [2002] ).
Arcia seeks contribution against the Cannata Defendants in the Portilla Malpractice Action, wherein the Cannata Defendants represented Portilla against Arcia (Arcia Verified Complaint at ¶ 18). Arcia also seeks contribution against Cannata for malpractice in handling the Portilla Personal Injury Action ( id.).
In Cannata's motion to dismiss, Cannata argues that its representation of Portilla began one day after the statute of limitations expired (Memorandum of Law in Support of Motion to Dismiss (“Memo. in Support”), p. 5). Cannata further asserts that Arcia pleaded the defense of contribution in his Verified Answer in the Portilla Malpractice Action and is therefore barred from seeking contribution as a separate cause of action ( id., pp. 5–8). Cannata also contends that Arcia cannot seek contribution, for Cannata, as Portilla's agent, is responsible for their culpable share of Portilla's (the principle's) negligence ( id., pp. 13–16).
“The right to contribution ... among alleged multiple wrongdoers arises when they each owe a duty to plaintiff or to each other and by breaching their respective duties they contribute to plaintiffs ultimate injuries” ( Trustees of Columbia Univ. in City of N.Y. v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 454, [1st Dept 1985] ). To sustain a claim for contribution against Cannata, Arcia has to demonstrate that Cannata owed a duty to Portillo ( see id. at 454).
Arcia and Cannata represented Portilla at different times in the Personal Injury Action. Thus, each owed a duty of skill and care to Portilla. An attorney sued for malpractice may assert a claim for contribution against another attorney whose “negligence contributed to or aggravated a plaintiff's injuries” (Schauer v. Joyce, 54 N.Y.2d 1, 6 [1981] ).
Portilla retained Arcia on or about April 2002 and Arcia commenced the lawsuit on June 22, 2004 (Portilla Malpractice Complaint at ¶¶ 46–47). Portillo terminated Arcia prior to the expiration of the statute of limitations on Portilla's claim (Affirmation of John Tumelty in Opposition to Motion to Dismiss [“Tumelty Affirm.”] at ¶ 3). Portillo retained Cannata and advised Arcia to cease work on the initial action on December 23, 2004 (Windels Affirm. Ex. 6, letter dated December 23, 2004). Though Portilla executed the Consent to Change Attorney form in December 28, 2004 (Windels Affirm., Ex. 3, Consent to Change Attorney), Cannata did not receive the executed original from Arcia until at least January 13, 2005 ( id., letter dated January 13, 2005), one day after the statute of limitations for the initial action expired (Windels Affirm., Ex. 5, Order dated April 21, 2006). Cannata did not receive the file until on or about January 15, 2005 ( see Tumelty Affirm. at ¶ 3). Thus a substantial portion of the damages allegedly suffered by Portilla occurred before Cannata received the file (Schauer, 54 N.Y.2d at 6–7 [client occurred substantial damages after she retained her second attorney] ).
Though New York courts have recognized a claim for contribution by an attorney who is defending a legal malpractice action ( id. at 3–4), a defending attorney may impute another attorney's negligence to the plaintiff without contribution ( see Hercules Chemical Co. v. North Star Reinsurance Corp., 72 A.D.2d 538, 538 [1st Dept 1979] ). In Hercules, the third-party plaintiffs filed a complaint against the third-party defendants' attorneys for contribution for alleged negligence in providing legal services to the first-party plaintiff ( id.). The third-party plaintiffs raised the attorneys' negligence as affirmative defenses in its answer, “limiting the plaintiff's recovery against the defendant third-party plaintiff, under the comparative negligence standard” ( id.). The court stated that the “third-party plaintiff's concern that it will be unable to impute the attorneys' negligence to the plaintiff and that it requires contribution to reach the same result is ill founded” ( id.).
Also in Ames Associates v. ABS Partners Real Estate LLC, 06 Civ 928(TPG), 2010 LEXIS 22365 (SD N.Y.2010), the court dismissed a third-party complaint for contribution through agency principles. The court held that “where the actions and state of mind of an agent are imputed to the principal, there is no need to bring a third-party action seeking contribution by plaintiff's agent for its share' of damages” ( id. at *10; see also Gabriel Capital, L.P. v. NatWest Fin., Inc., 137 F Supp 2d 251 [SD N.Y.2000] ).
In Connell v. Weiss, 1985 U.S. Dist LEXIS 21638 (SD N.Y.1985), the case relied on by Defendants, the attorney (Weiss) for a seller on a real property transaction commenced a third-party action for indemnification or contribution ( id. at *3). Similarly to the case at bar, in its answer to the original complaint, Weiss raised the defense that if the “plaintiffs were injured ... then the injury was caused or contributed to by the carelessness, negligence or other culpable conduct of the parties or their agent” ( id. at *11). The court dismissed the claim for contribution ( id. at *12). The court held that “under the New York comparative negligence doctrine any culpable conduct by [the agent] is imputable to the principle. Thus any recovery by [the principle] against Weiss [ (defendant/third-party plaintiff) ] would be subject to an appropriate reduction for [the principle's agent's] negligence” ( id.). The court also noted that the claim for contribution was unnecessary ( id., citing Hercules Chemical Co. v. North Star Reinsurance Corp., 72 A.D.2d 538 [1st Dept 1979] and Eurocom, S.A. v. Mahoney, Cohen & Co., 522 F Supp 1179 [SD N.Y.1981] ).
In its Verified Answer to the Portilla Malpractice Complaint, Arcia argues as an affirmative defense that the damages recovered by Portilla should be reduced in proportion of Portilla's culpable conduct (Arcia Verified Answer at 3). Arcia also contends in its eighth affirmative defense that any damages recovered by Portilla should be reduced by the culpable conduct of third parties who caused the damages (Arcia Verified Answer at 4). Given that Cannata represented Portilla, any negligence on Cannata's part should be imputed to Portillo ( Ames Associates, 2010 LEXIS 22365 at *10; Connell, 1985 U.S. Dist. LEXIS 21638 at *12). Therefore, there is no need for a separate cause of action for contribution ( see Hercules Chemical Co., 72 A.D.2d at 538). Cannata's motion to dismiss is granted.
Accordingly, it is
ORDERED that Defendants' motion to dismiss the verified complaint is GRANTED.
This constitutes the Decision and Order of the Court.