Opinion
No. 27412/08.
2011-01-14
Sandy CLAUDE, Plaintiff, v. Deloris Johnson ELGAMMAL, Maric Capital Corp., William D. Goodman, Crystal Coleman, Patrick Mullins, Joon Asset Management Corp., Montego Capital Inc., Sean D. Hudson, Victor Guevara, Robert Fuller, Structure Appraisal Services, Rosalie Osias, Yolanda A. Corion, Wells Fargo Bank N.A., AAbstract Inc., Defendants.
Victor M. Wilson, Esq., for plaintiff. Deloris Johnson ElGammal, pro se.
Victor M. Wilson, Esq., for plaintiff. Deloris Johnson ElGammal, pro se.
No other parties appeared on the motion.
JACK M. BATTAGLIA, J.
Plaintiff Sandy Claude was represented by Victor M. Wilson, Esq. Defendant Deloris Johnson ElGammal was self-represented. No other parties appeared on the motion.
The Verified Complaint of plaintiff Sandy Claude purported to allege 14 causes of action against 15 named defendants for, variously, breach of contract, fraud, negligent misrepresentation, “aiding and abetting fraud,” “conspiracy to defraud,” legal malpractice, and violation of General Business Law § 349. The allegations relate to Plaintiff's purchase of real property at 272 Sumpter Street, Brooklyn: generally, that various misrepresentations were made to him regarding the value and condition of the property, the purchase price, and the amount of the mortgage, with the damaging result, among other things, that he paid $740,000 for property worth only $520,000.
With a Decision and Order dated August 18, 2009, this Court dismissed the Verified Complaint as against eight of the named defendants, and dismissed certain alleged causes of action against defendant Deloris Johnson ElGammal. The remaining defendants in addition to Ms. ElGammal are Crystal Coleman, Sean D. Hudson, Victor Guevara, Robert Fuller, Structure Appraisal Services, Yolanda A. Corion, and AAbstract Inc. The Court rejected defendant ElGammal's contention that the Ninth Cause of Action for legal malpractice “fails to state a cause of action” ( seeCPLR 3211[a][7].)
Defendant ElGammal now moves pursuant to CPLR 3212 for summary dismissal of the Verified Complaint. The accompanying Affidavit of Service asserts service by mail on Plaintiff's counsel and defendant Victor Guevara. There is no reference in the Affidavit of Service to the other six remaining defendants, and no explanation in defendant ElGammal's Affidavit in Support of Summary Judgment Motion to Dismiss (“Affidavit in Support”) for the absence of service on the other defendants.
In any event, defendant ElGammal fails to establish prima facie that she is entitled as a matter of law to dismissal of Plaintiff's cause of action for legal malpractice.
The Ninth Cause of Action in Plaintiff's Verified Complaint, which he personally verified, alleges an attorney-client relationship in connection with his purchase of 272 Sumpter Street, and further:
“Defendant Elgammal [ sic ], owing a duty to Plaintiff as his attorney, was negligent in her dealings and representation of Plaintiff, in that she, for example, failed to advise Plaintiff of the various misrepresentations and frauds of the other various defendants, failed to apprise Plaintiff of the risks he faced in purchasing real property from bogus seller(s) without legal title to said property, failed to advise Plaintiff of his legal rights and options, failed to bring to Plaintiffs attention any obvious irregularities in his purchase and closing of the property, and failed to inform Plaintiff of his right to obtain an attorney of his choosing since she claimed to have been hired at the last minute to represent Plaintiff. Defendant ElGammal had no contact with Plaintiff prior to the closing of the property and offered absolutely no advice to Plaintiff at closing, other than to direct Plaintiff to sign the necessary forms to complete the purchase of the property.” (Verified Complaint ¶ 77.)
Defendant appropriately recognizes the elements of a legal malpractice cause of action (Affidavit in Support ¶ 4.)
“To recover damages for legal malpractice, a plaintiff must prove that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community ... In addition, the plaintiff must establish that the attorney's negligence was a proximate cause of the loss sustained, that the plaintiff incurred actual damages as a result of the attorney's actions or inaction, and that but for the attorney's negligence, the plaintiff ... would not have sustained any damages.” (Bauza v. Livington, 40 AD3d 791, 792–93 [2d Dept 2007] [quoting Cannestra v. O'Connor & McGuiness, Conte, Doyle, Oleson & Collins, 286 A.D.2d 314, 315–16 (2d Dept 2001) ].)
“To succeed on a motion for summary judgment, [a] defendant[ ][is] required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action.” (Conklin v. Owen, 72 AD3d 1006, 1007 [2d Dept 2010] .)
Defendant asserts that she “did not represent the Plaintiff at the inception of the transaction for 272 Sumpter ... [and] was hired by Yolanda A. Corion Esq. [the seller's attorney] to represent the Plaintiff for the closing only”; and further that she “was retained shortly before the closing, merely to represent [Plaintiff] regarding matters to be consummated at the closing ... [and] Plaintiff was represented by another attorney at the inception of the transaction.” (Affidavit in Support ¶ ¶ 8, 11.)
As to these matters, Defendant provides an affidavit of Ms. Corion, who asserts that, having been advised by her client, the seller, that Plaintiff's “attorney was not able to be present at the closing,” she requested that Defendant “represent the Plaintiff for the closing only” (Affidavit in Support of Summary Judgment ¶ ¶ 3, 4.) Neither Defendant nor attorney Corion indicates that, prior to the closing, she ever spoke to Plaintiff or Plaintiff's putative attorney; indeed, neither even provides a name for the attorney.
Defendant provides no copy of an engagement letter or retainer agreement with Plaintiff that would have limited or qualified her representation of Plaintiff, nor does she state that she disclosed, either before or at the closing, her understanding of the scope of the representation to Plaintiff, including any possible conflict of interest ( see Sitar v. Sitar, 50 AD3d 667, 669–70 [2d Dept 2008] .) Nor does Defendant demonstrate that as a matter of law her professional responsibility to Plaintiff was somehow limited or qualified by reason of her arrangement with the seller's attorney.
Indeed, Defendant does not describe how she exercised proper care, skill, and diligence in her representation of Plaintiff, other than to state that “[a]t the closing, [she] went through and explained in detail the meaning and import of each and every closing document with him, including without limitation the loan related documents” (Affidavit in Support ¶ 11.) Defendant's further statements that she “was not privy to [Plaintiff's] pre-closing communications, and when [she] met him at the closing he made no mention to [her] of any of his alleged oral understandings with [other] defendants” only highlights the absence of any statement that she discussed with Plaintiff any “pre-closing communications” or “oral understandings” as they might relate to the documents he was signing, or that she advised him as to the consequences of his signing as to any such “pre-closing communications” or “oral understandings.”
Defendant fails to establish prima facie that she did not breach any duty owed to Plaintiff as his attorney in connection with his purchase of 272 Sumpter Street. Her contention that “plaintiff has provided nothing to support a claim of legal malpractice” is unavailing. “As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense.” (Mennerich v. Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615 (4th Dept 1992) ]; see also Gonzalez v. Beacon Terminal Assocs., L.P., 48 AD3d 518, 519 [2d Dept 2008].)
Nonetheless, “[t]he failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent” (Bauza v. Livington, 40 AD3d at 793 [ quoting Leder v. Spiegel, 31 AD3d 266, 268 (1st Dept 2006) ] ); and Defendant here contends that “regarding the monetary damages allegedly stemming from the purported oral representations of [other defendants], [her] alleged acts of misfeasance, [ sic ] were not the legal or proximate cause of those damages” (Affidavit in Support ¶ 8.) In support of her contention, Defendant points to this Court's conclusion in the August 2009 Decision and Order that the Verified Complaint “cannot be understood as alleging that Plaintiff justifiably and reasonably relied upon any oral representations regarding the value and condition of the property, the purchase price, or the amount of the mortgage prior to signing the closing documents,” and argues that “[s]ince plaintiff did not, as a matter of law, rely on the oral promises which allegedly caused his damages, none of the claimed damages could have been the direct result of [her] alleged malfeasance” ( id. ¶ ¶ 8, 10.)
Even assuming that Defendant's characterization of this Court's Decision and Order is correct (the prior motions were primarily to dismiss pursuant to CPLR 3211[a][7] ), the conclusion Defendant argues for does not necessarily follow. Defendant make no showing as to the relevance of Plaintiff's justifiable and reasonable reliance, or rather its absence, and his ability to recover from Defendant for breach of her duty to provide careful, skillful, and diligent representation, if proved. As Defendant recognizes (Affidavit in Support ¶ ¶ 4, 8), proximate cause is necessarily determined by the duty owed and reasonably foreseeable risks of harm ( see Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308, 314–17 [1980].) As to Defendant, it has not been shown that Plaintiff's inability to recover from other defendants on claims of fraud or misrepresentation precludes recovery from Defendant.
It cannot be said as a matter of law on this record that, no matter what Defendant's breach of duty, the harm Plaintiff alleges would not be deemed a proximate result. For example, Defendant does not assert that, even had she known of the “pre-closing communications” and “oral understandings,” her advice to Plaintiff would have been the same, and she makes no showing that, even properly advised as to these matters, Plaintiff would have still signed the closing documents presented to him. ( See Barnett v. Schwartz, 47 AD3d 197, 205–07 [2d Dept 2007].)
Since Defendant fails to carry her burden on this motion, it is unnecessary to consider Plaintiff's opposition. ( See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985].) The Court will only note that Plaintiff fails to cite any legal authority to support his claim against Defendant, or even to address the elements of a cause of action for legal malpractice with specific allegations, nevermind evidence in admissible form. Nothing in this opinion should be understood as this Court's conclusion that evidence exists to support factual findings or legal conclusions that Defendant is liable for legal malpractice.
Specifically, the Court emphasizes that it has not determined that limited or qualified legal representation of the type apparently given here is either in itself or on the facts revealed by this record a breach of a tort duty or professional ethics. Properly implemented, such limited or qualified legal representation may benefit both attorneys and clients. ( See generally Justice Fern Fisher–Brandveen and Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb LJ 1107 [February, 2002].) It may well be that limiting representation to a discrete stage of a matter would not necessarily breach any tort duty or ethical proscription, but there is no warrant for a conclusion that the attorney would thereby be relieved of the obligations to provide competent and conflict-free representation.
The record on this motion does not allow for such determinations in this case, particularly since neither party addresses the issues.
Finally, the Court reminds Defendant that “[t]he adage that a lawyer who represents himself has a fool for a client' is the product of years of experience by seasoned litigators.” ( See Kay v. Ehrler, 499 U.S. 432, 438 [1991].)
Defendant's motion is denied.