Opinion
4791/10.
Decided August 3, 2010.
Motion pursuant to CPLR § 3211[a][7] by the defendants Law Offices of Mitchell J. Angel, PLLC, Mitchell J. Angel, James D. McCarthy, Marcia S. Angel, for an order dismissing the complaint insofar as interposed against them.
Motion pursuant to CPLR 3211 § [a][1], [7] by the defendant Medical Liability Mutual Insurance Co., for an order dismissing the complaint insofar as interposed against it.
By summons and complaint dated May 2006, Toby Diresta commenced a medical malpractice/wrongful death action in the Supreme Court, Nassau County against, inter alia, the plaintiff herein, Matthew R. Brackman, M.D. (Gilbert Aff., Exh., "1"). Shortly thereafter, in May of 2006, Milira Jones filed a second medical malpractice action against Dr. Matthew R. Brackman, also in the Supreme Court, Nassau County.
At all relevant times, the plaintiff Matthew D. Brackman, M.D. was insured by codefendant under two, "claims made" liability policies issued by Medical Liability Mutual Insurance Co. ["MLM"](Gilbert Aff., ¶¶ 11-12; Fellner Aff., ¶¶ 8-9).
Among other things, the subject policies allow MLM to submit disputes with its insureds relating to whether a settlement should be pursued, to independent medical advisors and/or peer review committees for binding, arbitration-type resolution (Gilbert Aff., ¶¶ 4-5; Exh., "5"; Policy, § IV, ¶ 2[a], at 7 see also, Section I, ¶ 7). The Court notes that the MLM policies denominated as consent policies from 2006 through 2009 at least, are not consent policies which require the Doctors approval to commence or conclude settlement of a claim.
Although Section I, paragraph 7 of the Jones policy initially provides that settlements will not be considered or offered by MLM absent the insured's "unconditional consent," paragraph 7 then refers the reader to Section IV, ¶ 2[a] at 7, which qualifies this statement.
Pursuant to section IV paragraph 7 of the Jones policy, where an insured member declines to consent unconditionally to a proposed settlement recommended as advisable by MLM, MLM may refer the dispute to "an advisor" within the member's medical specialty. The insured then has 30 days after MLM's selection of the advisor, to make submissions in support of his or her position — after which the advisor is then authorized to render a binding and nonappealable decision relative to the settlement (Gilbert Aff., ¶¶ 4-5; Exh., "5"; Policy, § IV, ¶ 2[a], at 7).
In connection with the pending Jones matter, MLM alleges that it invoked the foregoing arbitration provision and settled the matter, as evidenced by a stipulation of discontinuance with prejudice, dated June 24, 2009 (Gilbert Aff., Exh., "4"; Welch Aff., ¶ 19). Brackman was represented in the Jones matter by codefendants Law Offices of Mitchell J. Angel, PLLC, Mitchell J. Angel, James D. McCarthy and Marcia S. Angel [collectedly "Angel" or the "Angel defendants"]. In the Diresta matter, Martin, Clearwater and Bell, Esqs., filed an answer on Brackman's behalf (Feelner Aff., "2").
The plaintiff's complaint alleges that the Jones matter was settled over Dr. Brackman's objections for the sum of $800,000.00 and that MLM later cancelled his policy and/or declined to offer him further coverage (Cmplt., ¶¶ 33-34).
The plaintiff contends, however, that in March of 2009 — prior to the Jones settlement, when trial was imminent, MLM and the Angel defendants began to conspire together to coerce him into accepting a settlement proposed by MLM (Cmplt., ¶¶ 37-38; 40-44).
More particularly, the plaintiff contends that the Angel defendants did virtually nothing to prepare the case for trial, even though trial was imminent. Further, during certain pre-trial strategy meetings, the Angel defendants attempted to bully and cajole him into settling the matter (Cmplt., ¶¶ 37-38). According to the plaintiff, codefendant Marcia S. Angel, Esq. told him during one of these meetings that MLM now believed that it had mistakenly put off invoking the arbitration/medical advisor provision — and that MLM was now "regretting" this decision (Cmplt., ¶¶ 37-38).
With respect to the Angel defendants, the plaintiff claims that they were attempting to delay the proceedings to assist MLM. They allegedly engaged in this delaying conduct since both the Angel defendants and MLM were "aware of all the provisions of the Policy, and knew * * * [that MLM] could not effectuate arbitration without delaying the trial" (Cmplt., ¶ 43). Notably, the complaint does not identify or cite to these policy provisions, or further elaborate upon the precise factual basis for this claim.
As to the Diresta matter, MLM contends that a different policy was applicable to the claim — although that policy contains a similar arbitration provision which authorizes the submission of a disputed settlement to a three-member medical advisory committee for binding and nonappealable review ( see, Fellner Aff., ¶ 2; Policy, section IV, ¶ 2[a] see also, Section I, ¶ 6 at 3). Apparently, MLM has recently convened a medical advisory panel in the Diresta action, but as of the making of the instant motions, no opinion has been rendered by that body (Welch Aff., ¶¶ 55, 58).
In February of 2010, and in light of MLM's convening of the Diresta peer advisory panel, Brackman brought an application in the pending Diresta action for a temporary restraining order and injunctive relief precluding MLM (a non-party therein), from attempting to settle the Diresta matter absent his unconditional, written consent.
By order dated March 2, 2010, Justice Brandveen denied Brackman's application. In doing so Justice Brandveen relied on the Diresta policy arbitration provision discussed above. The Brandveen Court observed, in this respect, that pursuant to the policy arbitration provision there "is an appropriate procedure [that applies] when a consent issue arises with respect to the physician and the insurance carrier" (Welch Aff., Exh., "B"; Order of Brandveen, J., dated March 2, 2010).
Since contractual proceedings relating to the settlement issue were pending, the Court held that Brackman was not entitled to the preliminary injunctive relief sought. Notably, Brackman later made the same application to the Appellate Division, which that court similarly denied ( Brackman v Diresta, ___ AD3d ___, Motion No: 2010-02230 [2nd Dept. March 25, 2010]).
Thereafter, in March of 2010, Brackman commenced the within, pro se action as against the Angel defendants and MLM alleging, inter alia, legal malpractice, civil conspiracy between MLM and Angel and breach of the insurance contracts.
Although the pro se complaint is not a model of clarity, Brackman alleges in relevant part that MLM: (1) breached the policy since it allegedly had no right to compromise either the Jones or the Diresta malpractice claims without his unconditional consent; (2) that the Angel defendants committed legal malpractice and breached their fiduciary duty in the Jones action; and (3) both MLM and the Angel defendants conspired together to bully, coerce and pressure Brackman into accepting the proposed settlement over his objection in the Jones case (Cmplt., ¶¶ 37-38, 45-48). There is no allegation made, to the effect that the Jones arbitration proceeding was corrupt and/or that the decision reached by the medical advisor was made in bad faith.
With respect to damages, the plaintiff maintains that by virtue of defendants' wrongful conduct and MLM's cancellation of his malpractice coverage, he was forced to close his New York practice. Moreover, he lost income and sustained emotional distress since he was unemployed for some six months and could not secure "traditional" medical malpractice insurance — although he eventually secured a license and surgery privileges in, inter alia, Florida (Cmplt., ¶¶ 15, 17-18, 32).
The Diresta complaint similarly alleges that when jury selection was imminent, MLM, in concert with (different) defense counsel in that action, began pressuring Brackman to accept a settlement and that MLM then invoked the policy arbitration provision authorizing MLM to compromise the action without Brackman's consent after peer committee review (Cmplt., ¶¶ 20-24).
Based on these and additional claims of alleged wrongdoing, the complaint sets forth three causes of action, sounding in breach of contract as against MLM, civil conspiracy as against both MLM and Angel; and a third cause of action alleging breach of fiduciary duty and legal malpractice as against the Angel defendants (Cmplt., ¶¶ 29-50). Notably, the plaintiff's "wherefore" clause also seeks relief permanently enjoining MLM from settling the Diresta action without his written consent.
The defendants MLM and Angel now move for an order dismissing the action pursuant to CPLR § 3211[a][1], [7].
Preliminarily, the Court notes that Dr. Brackman's opposing submissions consist of two separately executed affirmations, neither of which recite that he is currently authorized by law to practice medicine in this state (CPLR 2106). More significantly, since Dr. Brackman is the named plaintiff in the subject action, "his submission of an affirmation instead of an affidavit was improper, and its contents are therefore not properly before the Court ( see generally, Nazario v. Ciafone ,, 65 AD3d 1240 ; Finger v. Saal , 56 AD3d 606 , 607). This departure from the CPLR requirement alone, is sufficient to grant the motion, however, the Court wishes to examine the merits, as well, to determine whether or not a correction of this deficiency would effect a determination on the merits.
The Court agrees with the defendants that to the extent the complaint can be viewed as demanding injunctive relief precluding MLM from attempting to settle the Diresta matter, that claim — even when liberally construed — fails to state a claim upon which relief can be based.
The record confirms that although the Diresta advisory committee has been convened, it has not rendered any determination. Accordingly, the plaintiff's assertions with respect to the additional damage he might sustain if the committee ultimately rules against him, are speculative and premature (Cmplt., ¶¶ 35-36; Fellner Aff., ¶ 10).
It is notable, as well, that in the pending Diesta action, Justice Brandveen has already rejected the plaintiff's theory — revived again here — that he is entitled to injunctive relief precluding MLM from attempting to settle the matter pursuant to the policy arbitration provision — and the Appellate Division has similarly declined to enjoin MLM from pursuing its contractual remedies in the Diresta action. Plainly implicit in both motion decisions, is that the policy arbitration provision is an applicable component of the parties' insurance contract and that the plaintiff's current claims are speculative and premature.
Turning to that portion of the plaintiff's breach of contract claim which relates to the now settled Jones matter, the plaintiff contends that MLM violated the terms of the policy because the policy allegedly does not permit the making of a settlement offer absent his written, unconditional consent (Cmplt., ¶¶ 29-30). The policy language, however, contradicts this assertion ( see generally, Cohen v. Nassau Educators Federal Credit Union , 37 AD3d 751, 752; CPLR 3211[a][1]).
Specifically, MLM has demonstrated that the applicable policy provisions, in fact, authorize the submission of a disputed settlement to a medical advisor, whose decision is then binding and nonappealable (Gilbert Aff., ¶¶ 11-13). The Jones policy does contain the language quoted in the plaintiff's complaint, i.e., language which initially states that a settlement offer will be made only with insured's "unconditional consent" ( see, Policy, § IV, ¶ 2[a] see also, Policy, Section I, ¶ 7 at 4; Cmplt., ¶ 6), subsection IV thereof contains additional, qualifying provision which the plaintiff' has omitted from its complaint and opposing submissions; namely, the provision which authorizes MLM to refer a disputed settlement issue to an "advisor within * * * [the insured's] medical specialty * * *" (Policy, § IV, ¶ 2[a]; Policy, Section I, ¶ 7).
The plaintiff's contention that the Jones arbitration provision constitutes an unauthorized modification to the originally issued policy — and that he never received and/or signed off on those alleged modifications — is lacking in merit (Brackman [unpaginated] Aff., in Opp., at 2), upon the facts alleged here, "[n]either delivery nor actual possession by the insured is essential to the completion of a contract of insurance" ( Maurice v. Allstate Ins. Co., 173 AD2d 793, 795. This Court was not presented with the precise issue as to conflicting provisions in the insurance contracts or such issue was subsumed in the prior determinations in Jones and Diresta, and is unable to address such issues at least, for the present.
However, the plaintiff's complaint does contain an allegation that the arbitration provision was never made part of the subject insurance policies — or that it is inapplicable because, inter alia, the plaintiff never received or signed off on it; rather, the plaintiff appears to be claiming that the defendant wrongfully attempted to invoke an existing arbitration policy provision since he did not unconditionally consent to the settlement ( see, Cmplt., ¶¶ 15, 39, 43 cf., ¶ 34)( cf., Pavia v. State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452; consequently, the plaintiff's knowledge and limited participation in the submission process constitutes a clear waiver of this claim.
Turning to the second cause of action sounding in conspiracy — based on the claim that defendants conspired to force a settlement in the Jones matter — that claim also fails since New York does not recognize civil conspiracy as an independent tort ( Alexander Alexander of New York, Inc. v. Fritzen, 68 NY2d 968, 969;)(Cmplt., ¶ 44). Nor is there is a properly pleaded, underlying and independent tort supporting the plaintiff's conspiracy theory or a concerted action claim.
The third cause of action alleges, as against the Angel defendants, both attorney malpractice and breach of fiduciary duty based on the same pleaded facts. These allegations essentially repeat most of the same factual theories and accusations previously made in the second, civil conspiracy cause of action, i.e., the theory that the Angel defendants failed to mount a proper defense because they were attempting to delay the proceedings so that MLM could then submit the settlement proposal to arbitration ( e.g., Cmplt., ¶¶ 45-48). It is settled that "[i]n order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable 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'" ( Leder v. Spiegel , 9 NY3d 836 , 837.
Further "[t]o survive dismissal" and "[t]o establish causation, a plaintiff must show that he or she would * * * would not have incurred any damages, but for the lawyer's negligence" ( Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer, supra, 8 NY3d at 442;).
The failure to demonstrate the requisite "but for" proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent" ( Kluczka v. Lecci, 63 AD3d 796, 797).
Significantly, and in the context of an action asserting attorney liability, "the but for" standard of casualty will apply to a fiduciary duty claim "irrespective of how the claim is denominated in the complaint"( Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman Dicker , 56 AD3d 1 , at 10-11). Further, "[w]here a plaintiff asserts a cause of action to recover damages for breach of fiduciary duty, the circumstances constituting the wrong shall be stated in detail'" ( Daly v. Kochanowicz , 67 AD3d 78 , 95).
Here, the complaint does not incorporate factual allegations which demonstrate the requisite, "but for" causality — or any probative causal nexus properly linking Angels' purported delays to the injury the plaintiff claims he sustained. Specifically, the complaint does not allege that but for Angels' purported delaying tactics, MLM would not have invoked the arbitration provision; that the plaintiff would thereafter have prevailed in the underlying malpractice action; and/or that "but for" the Angel defendants' misconduct, he would not have sustained the damage he now claims to have sustained.
It is settled that malpractice claims grounded upon contingent or hypothetically projected injuries are generally insufficient to establish liability ( Bauza v. Livington, supra; Brooks v. Lewin, supra, at 734-735; Pellegrino v. File, 291 AD2d 60, 63). Indeed, while the plaintiff alleges, inter alia, that the Angel defendants' conduct was coercive and that he was damaged thereby, the plaintiff's pleaded factual claim is that, in fact, he never succumbed to any alleged pressure or coercion(Cmplt., ¶¶ 37, 45-48). Rather, he alleges that he refused to consent and that his injuries flowed from MLM's decision to refer the matter to a medical advisor over his express objection.
Nor does the complaint contain anything other than vague factual allegations supporting the theory that the delays supposedly generated by the Angel defendants were causally related to, or facilitated, MLM's subsequent decision to refer the Jones dispute to a settlement medical advisor ( e.g., Cmplt., ¶¶ 15, 34).
Lastly, the plaintiff's breach of fiduciary duty claim is: (1) based upon the same factual predicate as the legal malpractice cause of action and is therefore duplicative of that theory. Alternatively, the fiduciary duty claim is subject to dismissal on the same, causality-based deficiencies referenced in connection with the plaintiff's malpractice theory of recovery.
The Court has considered the plaintiff's remaining contentions in opposition to the defendants' respective motions, and concludes that they are lacking in merit.
Accordingly, it is,
ORDERED that the motions pursuant to CPLR 3211[a], [1], [7] by the defendants Law Offices of Mitchell J. Angel, PLLC, Mitchell J. Angel, James D. McCarthy, Marcia S. Angel, and by Medical Liability Mutual Insurance Co., for an order dismissing the complaint insofar as interposed as against them, are granted with plaintiff's right to renew pending the final determination of the Diresta action presently before the advisory committee and the trial or settlement of such matter in the New York State Supreme Court.
This constitutes the Order of the Court.