Opinion
100903/2016
03-26-2018
Benjamin BRAXTON, Plaintiff, v. David SEGAL and Devon M. Wilt, Defendants.
Benjamin Braxton, pro se David Segal, pro se Devon M. Wilt, pro se
Benjamin Braxton, pro se
David Segal, pro se
Devon M. Wilt, pro se
Robert R. Reed, J.
Plaintiff Benjamin Braxton brings this legal malpractice action seeking $25,000 in damages. Defendants David Segal ("Segal") and Devon M. Wilt ("Wilt") separately answer the complaint and demand dismissal of the complaint. Plaintiff now moves, by Order to Show Cause (OSC), for summary judgment, pursuant to CPLR 3212. Both defendants cross-move to dismiss the complaint for lack of jurisdiction and improper personal service. Plaintiff opposes the cross-motions, attaching as exhibits affidavits of service of the summons and complaint.
FACTUAL ALLEGATIONS & CLAIMS
Plaintiff retained Segal as his attorney in a Kings County Criminal Court matter. Wilt, also a licensed attorney, served as Segal's employee and accompanied him to client interviews. During the discovery and trial preparation phases of plaintiff's criminal case, Segal was suspended from the practice of law. Segal was ordered to and timely transferred all pending cases, including plaintiff's, to a new attorney. At the conclusion of the criminal case, plaintiff was convicted by a jury of his peers and sentenced to a term of imprisonment. Plaintiff then filed a complaint with the Departmental Disciplinary Committee (DDC) of the First Judicial Department. Both defendants responded and, after investigation, the DDC determined to take no action against either defendant and to close its files on the matter. Plaintiff brings this action in Supreme Court under a legal malpractice theory, seeking compensatory, nominal and punitive damages.
DISCUSSION
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion ( Alvarez v. Prospect Hospital , 68 N.Y.2d 320 ). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e. , with the proponent of the motion. Thus, "if the evidence [on the motion] is evenly balanced, the party that bears the burden of persuasion must lose" ( Director, Office of Workers Compensation Programs v. Greenwich Collieries , 512 US 267, 272 ; 300 East 34th Street Co. v. Habeeb , 248 A.D.2d 50 ).
The court's function on a motion for summary judgment is issue finding, rather than issue determination ( Sillman v. Twentieth Century–Fox Film Corp. , 3 N.Y.2d 395 ). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue ( Rotuba Extruders, Inc. v. Ceppos , 46 N.Y.2d 223 ). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied ( Stone v. Goodson , 8 N.Y.2d 8 ; Sillman v. Twentieth Century–Fox Film Corp. , supra.).
LEGAL MALPRACTICE
Plaintiff attaches as an exhibit to his complaint the retainer agreement, identifying Segal as the attorney of record. Wilt is not included as a party to this agreement and, thus, there is no evident privity of contract, attorney-client relationship, or other contractual relationship between plaintiff and Wilt. Additionally, Wilt neither appeared in court as plaintiff's attorney nor did she receive any monies from the plaintiff. There is, then, no legal basis for the malpractice action against Wilt (see Baystone Equities, Inc. v. Handel–Harbour , 27 AD3d 231 (holding that the cause of action for malpractice was properly dismissed since no attorney-client or other contractual relationship existed between plaintiff and defendant)). Accordingly, plaintiff's motion for summary judgment as to Wilt is denied, as being utterly without any factual basis. For the same reason, the court, searching the record pursuant to CPLR 3212(b), grants summary judgment to defendant Wilt dismissing the complaint as against her (see Merritt Hill Vineyards, Inc. v. Windy Heights Vineyard, Inc. , 61 N.Y.2d 106 ).
With regard to plaintiff's motion for summary judgment as to Segal, "to state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense" (see Carmel v. Lunney, 70 N.Y.2d 169 ). Plaintiff has not done so here. Instead, plaintiff alleges that Segal's prior complaints, admonishments and suspensions from the practice are conclusive proof of malpractice in his case, entitling plaintiff to monetary relief. Such a clustering of unfortunate facts, however, does not translate into an articulable claim of legal malpractice. Segal was, it is true, suspended from the practice of law during the representation of plaintiff's case. The Appellate Division of the First Judicial Department ordered Segal to transfer his cases to another attorney in good standing. While it certainly is an inconvenient and untimely disruption for any criminal defendant to receive a new attorney, this alone is not sufficient to sustain a cause of action for legal malpractice. Accordingly, plaintiff's motion for summary judgment as against Segal is denied. Moreover, again searching the record pursuant to CPLR 3212(b), the court grants summary judgment to defendant Segal dismissing the complaint as against him—inasmuch as plaintiff fails to present anywhere in the record even a colorable claim of innocence in connection with the criminal matter for which defendant Segal provided him representation (see Carmel v. Lunney, supra ; Merritt Hill Vineyards , supra ).
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment is DENIED; and it is further
ORDERED that, the court having searched the record pursuant to CPLR 3212(b), summary judgment is GRANTED to defendants Wilt and Segal dismissing the complaint herein in its entirety; and it is further
ORDERED that defendants' respective cross-motions to dismiss the complaint for service related issues are DENIED as moot; and it is further
ORDERED that the Clerk shall enter judgment dismissing the complaint herein in its entirety.