Opinion
98 Civ. 4088 (WK)
July 13, 2000
Jeffrey E. Glenn, Deforest Durer, New York, NY, for Plaintiff.
Robert I. Bodian, Esq., Kevin N. Ainsworth, Esq., O'Sullivan Graev Karabell, LLP, New York, NY, for Defendant.
MEMORANDUM ORDER
Dr. Yorav Borsuk (hereinafter "plaintiff"), an Israeli citizen, brings this action against his former attorneys, defendants Stephen Jeffries, Esq. and Suzanne B. Seltzer, Esq. of Stephen Jeffries Associates (collectively "defendants"), alleging legal malpractice and breach of contract for their failure to properly handle his petition for permanent residency. Now before us is defendants' motion for summary judgment. For the reasons that follow we find that the insufficiency of evidentiary support for plaintiff's claims establishes the absence of genuine disputes of material fact and therefore we GRANT defendants' motion for summary judgment. With respect to defendants' procedural motions, we grant the motion to strike plaintiff's affidavit and deny as moot the motion to strike Exhibit A of plaintiff's affidavit.
While it is recognized that plaintiff advances a third cause of action in his complaint, we dispense here with the breach of promise claim as redundant of the breach of contract claim because it is based upon the same allegations and is therefore dismissed. DiPlacidi v. Walsh (1st Dep't 1997) 664 N.Y.S.2d at 537.
BACKGROUND
In May 1997, pursuant to an oral agreement plaintiff retained defendants' services to handle his permanent residency petition, (i.e., to obtain a green card). Since April 1994, plaintiff had been in the United States on an H-1B visa, while completing his residency at Beth Israel Medical Center, working under Beth Israel's medical license. Plaintiff's temporary H-1B visa expired on June 30, 1997, the same date his medical residency ended.
Defendant Jeffries recommended a course of action which included filing an I-140 Petition (hereinafter "Petition") to qualify for a National Interest Waiver (hereinafter "Waiver"). Plaintiff secured a contract for part-time employment from the Opportunity Development Association Primary Health Care Center (hereinafter "ODA"), which served a requisite medically underserved area and defendants prepared the documentation required to obtain the Waiver. On June 10, 1997, defendants submitted the Petition application, which included a Petition form, draft letter and an Affidavit of Commitment to Serve Medically Indigent in Kings County (in which plaintiff pledged his commitment to serve in the underserved area for two years). The part-time employment contract was not included because in defendant Jeffries' legal judgment it could diminish the Petition's chances for approval. Defendants gave plaintiff applications for work authorization and adjustment of status to be filled out while the approval of his Petition was pending. By July 1, 1997, plaintiff's temporary H-1B visa had expired and he had not received word on the status of his Petition. Plaintiff asked defendants about extending his H-1B visa after it had already expired, and was informed by defendants that he would have to go back to Israel to obtain a new H-1B visa. Prior to this inquiry, plaintiff had instructed the defendants not to file for an extension of his H-1B visa. Defendant Seltzer had nonetheless given plaintiff the extension forms in the event he changed his mind. Plaintiff did not file the forms nor instruct defendants to do so.
Obtaining permanent residency green card begins with a labor certification process (which at the time plaintiff sought residency, took a minimum of two years in New York). To hasten this process, a person with an advanced degree may by submit a Petition and obtain a Waiver. By demonstrating a commitment to work in a medically underserved area, an applicant can obtain this Waiver if his immigration is deemed to be in the national interest. Once approval for the Petition is obtained and the Waiver is granted, applications for work authorization and adjustment of status must be submitted. The green card process is complete once an "employment authorization" card is received.
On July 28, 1997, the Immigration and Naturalizaton Service (hereinafter "INS") requested additional information, i.e., an employment contract and financial information about ODA. Plaintiff then retained new counsel, Dimitri Nikolakakos, Esq., who submitted the requested documentation, including a new contract for full — time employment, on or about August 7, 1997. The Petition was approved by INS on August 19, 1997. In September 1997, plaintiff applied for a medical license to practice in New York which he obtained on October 31, 1997. On December 10, 1997, INS granted work authorization. In January of 1998, plaintiff received his green card but by this time ODA had withdrawn the offer of employment. Plaintiff obtained lower paying alternate employment and as a result, seeks compensatory damages in an amount no less than $85,000 and additional punitive damages and legal costs.
DISCUSSION
As a preliminary matter we grant defendants' motion to strike plaintiff's affidavit in as much as it is rife with statements that contradict plaintiff's prior deposition testimony. As the Second Circuit held in Bickerstaff v. Vassar College, "It is beyond cavil that `a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that . . . contradicts the affiant's previous deposition testimony.'" (2d Cir. 1999) 196 F.3d 435, 455.
We deny defendants' motion to strike Exhibit A to plaintiff's affidavit, an "information letter" drafted by defendants to plaintiff (enumerating the type of information needed to obtain the national waiver), as moot in that even accepting as true all the facts contained in that exhibit, we are granting defendants' motion for summary judgment.
With regard to defendants' motion for summary judgment, we construe the evidence in the light most favorable to the plaintiff and draw all reasonable inferences. Hunt v. Cromatie (1999) 526 U.S. 541. We conclude defendants have demonstrated plaintiff's inability to establish elements essential to his claims and plaintiff's evidence does not refute such demonstration. Therefore, summary judgment is warranted. Celotex Corp v. Cattret (1986) 477 U.S. 317.
Plaintiff's action is framed around various allegations that defendants failed to meet their duties and contractual obligations when: 1) defendants failed to submit plaintiff's ODA employment contract with the Petition application; 2) defendants failed to process an application for an extension of the H-1B visa; and 3) defendants failed to take necessary steps to fulfill their alleged specific promise to obtain working status for plaintiff so that he could begin employment by July 1, 1997.
Whether plaintiff's claims sound in legal malpractice or breach of contract and assuming all of his allegations are true, we find that defendants have succeeded in eliminating any possibility that plaintiff can establish a causal connection between defendants' actions or inactions and the damages plaintiff claims he has suffered. Plaintiff has failed to rebut defendants' showing that no material issue of fact concerning proximate and "but for" causation exists. To maintain plaintiff's claims presumes that approval of the Petition and ultimately employment authorization by July 1, 1997, would have been guaranteed if defendants had undertaken a particular course of action. However, even if plaintiff's application was processed perfectly, certain immutable factors existed precluding such a guarantee and barring causation: 1) ultimate approval, if at all, of plaintiff's petition for residency resided within the discretion of the INS; and 2) even if approval of the Petition and work authorization had been received by July 1, 1997, plaintiff did not posses the requisite medical license to work in New York.
Plaintiff's allegation that had defendants included his employment contract with his application, his Petition would have been approved and therefore he would have been able to start working by July 1, 1997, fails. Even if defendants had included an employment contract, which is not required by the INS, approval of the application remained within the discretion of an independent third party: the INS, who has the authority to reject plaintiff's application for any or no reason at all. This immutable factor precludes plaintiff from asserting that as a proximate result of defendants' actions or but for their actions, plaintiff has suffered damages.
Even if plaintiff received work authorization from the INS by July 1, 1997, he would not have been able to work since he did not have the necessary medical licence to practice in New York (the Beth Israel License he had been working under expired on June 30, 1997). (Borsuk at 86-87); See also 8 U.S.C.A. § 1184(i)(2) (requiring state licensure of those under a visa). Plaintiff did not retain defendants to procure such license and did not apply for one till September 1997. Plaintiff's allegation that defendants are culpable for not filing an H-1B visa extension to secure employment by July 1, 1997, also fails for the same reasons. Plaintiff admits he instructed Jeffries not to apply for the H-1B visa extension and nor did he file for an extension himself after defendants gave him the necessary papers. In any event, plaintiff was ineligible for an extension of the H-1B visa without a medical licence Whether or not plaintiff was able to work for ODA on July 1, 1997, was beyond defendants' control and to forge a nexus between defendants' actions and plaintiff's damages is fallacious.
Whereas plaintiff cannot show defendants' conduct was the proximate cause of his injury, nor but for defendants' alleged conduct the INS would have extended his H-1B visa or that plaintiff would have prevailed with his immigration petition, defendants' motion for summary judgment on the malpractice claim is granted.
CONCLUSION
Defendants' motion to strike plaintiff's affidavit is GRANTED, but defendants' motion to strike Exhibit A is DENIED as moot. Defendants' motion for a Rule 11 sanctions and a hearing thereon is DENIED. Plaintiff's breach of promise claim is DISMISSED as duplicative and defendants' motion for summary judgment on the legal malpractice and breach of contract claims is GRANTED and the action DISMISSED WITH PREJUDICE.
SO ORDERED.