Opinion
INDEX NO. 155158/2019
09-24-2019
MARILISE FLUSSER, Plaintiff, v. DROR BIKEL, ELIZABETH MANDARANO, BIKEL & MANDARANO, BIKEL & MANDARANO, LLP, Defendants.
NYSCEF DOC. NO. 40 PRESENT: HON. MICHAEL L. KATZ Justice MOTION DATE 08/16/2019 MOT. SEQ. NO. 002
DECISION/ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39 were read on this motion to dismiss the Complaint.
Plaintiff Marilise Flusser commenced this action against defendants Dror Bikel, Elizabeth Mandarano, Bikel & Mandarano, and Bikel & Mandarano, LLP, seeking to recover damages for alleged legal malpractice.
Background
Plaintiff was represented in an action for divorce, Alan Flusser v Marlise Flusser, Index No. 314558/11, by Robert M. Preston, Esq. and his then-firm, Preston, Stutman & Partners, P.C., until on or about May 27, 2014.
That representation ended when plaintiff signed a retainer agreement with the defendant law firm, Bikel & Mandarano, a limited liability partnership, by which the firm agreed to represent her in connection with two limited issues; namely, (i) "the prosecution or defense of a divorce action;" and (ii) "the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter."
On or about July 11, 2014, defendant Dror Bikel, Esq., a partner at the firm, filed an Amended Verified Answer in the matrimonial action, in which he asserted counterclaims on behalf of plaintiff against her former husband, Alan Flusser, for breach of his spousal support obligation under the terms of a Separation Agreement dated December 30, 1999.
Mr. Flusser subsequently moved to dismiss the counterclaims, arguing that the counterclaims failed to state a cause of action and were barred by the applicable statute of limitations.
By Interim Decision/Order dated August 21, 2017, Special Referee Steven E. Liebman granted the motion only to the the extent of finding that any claim for maintenance which became due prior to August 2008 was time barred, and otherwise denied the motion to dismiss the counterclaims.
Plaintiff contends that her former attorney, Mr. Preston, committed legal malpractice by failing to assert a specifically enumerated counterclaim against Mr. Flusser for the spousal maintenance arrears when the original Answer was filed in April 2012 and by failing to obtain discovery relating to the monies purportedly owed.
Plaintiff alleges, without any documentary proof and in direct contravention of the terms of the retainer agreement, that "the scope of defendants' representation came to include representing and advising [her] with respect to claims for allegedly unpaid legal fees and for a charging lien brought by Preston and his firm and a claim for legal malpractice against Preston and his firm."
Plaintiff claims that defendant "Bikel advised [her] that she had a viable legal malpractice claim against Preston and his firm, that he would advise her on how and when to bring that claim, but that she should wait until the Divorce Action was finished before pursuing Preston and his firm."
Plaintiff alleges that defendants (including defendant Elizabeth R. Mandarano, Esq., a partner at the defendant firm whom plaintiff alleges is 'vicariously liable' for defendant Bikel's actions) were negligent in (i) failing to thoroughly investigate her claims against Mr. Preston and his firm; (ii) failing to preserve a legal malpractice claim against Mr. Preston and his firm; (iii) failing to advise her of the three-year statute of limitations applicable to a claim for legal malpractice; (iv) failing to memorialize Mr. Preston's agreement to waive his claim and charging lien for approximately $90,000 in unpaid legal fees; (v) failing to apply for interim counsel fees; (vi) failing to obtain the case file from Mr. Preston's firm; (vii) failing to secure evidence in support of plaintiff's counterclaims against Mr. Flusser for unpaid maintenance arrears; (viii) failing to adequately research and/or know the law as it applies to said claims; (ix) failing to represent her diligently; and (v) failing to advise her properly.
Defendants now move for an order: (a) pursuant to CPLR § 3211(a)(1) and (7) dismissing the Amended Complaint; and (b) pursuant to 22 NYCRR § 130-1.1, imposing sanctions againt plaintiff, on the grounds that plaintiff has failed to assert a viable claim for legal malpractice against them. Discussion
A plaintiff alleging legal malpractice is required to show (1) the existence of an attorney-client relationship, (2) negligence on the part of the attorney or some other conduct in breach of the relationship, (3) that such conduct was the proximate cause of the injury to plaintiff, and (4) that "but for" such malpractice, the plaintiff would have been successful in the underlying litigation (citation omitted).Iocovello v Weingrad & Weingrad, 262 AD2d 156, 157 (1st Dep't 1999). See also, Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 (1st Dep't 2003); Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561 (2nd Dep't 2003).
In the instant case, the retainer agreement enumerated the specific legal services that the defendant law firm would provide, and did not include a duty to provide any representation or advice with respect to the former attorney's claim against plaintiff for unpaid legal fees or with respect to plaintiff's potential claim against her former attorney for alleged legal malpractice. See, AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007); Keld v Giddins Claman, LLP, 170 AD3d 589, 589 (1st Dep't 2019).
Plaintiff correctly notes that a complaint need not, as a pleading matter, "allege the specific scope of defendants' agreed-upon legal representation or that defendant's malpractice fell within such scope (Shaya B. Pac, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 39 [2006])." Fitzsimmons v Pryor Cashman LLP, 93 AD3d 497, 498 (1st Dep't 2012). However, this case is distinguishable from an instance, such as that presented in Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, supra at 38, where the retainer letter did not conclusively prove the scope of the firm's representation. Here, the retainer agreement with the defendant firm clearly and unambiguously set forth the limited scope of the legal representation.
Thus, there is no basis for plaintiff to assert a claim against defendants for legal malpractice based on the firm's purported failure to 'thoroughly investigate' and/or preserve a potential claim against plaintiff's former attorney, or to advise plaintiff with regard to a matter wholly outside the scope of the firm's agreed upon representation.
Moreover, it was not until August 21, 2017, when Special Referee Liebman issued his decision, that it was determined that plaintiff was unable to recover damages for breach of the Separation Agreement occurring prior to August 2008. Thus, it appears that any claim plaintiff might have had against her prior counsel was time barred (see, CPLR § 214[6]) by the time plaintiff could have made any showing (or even attempted to meet the burden of showing) that she "sustained some actual ascertainable damages." Pellegrino v File, 291 AD2d 60, 63 (1st Dep't 2002), lv to app. denied, 98 NY2d 606 (2002).
The Amended Complaint also fails to state a claim for legal malpractice based on defendants' alleged failure to memorialize Mr. Preston's purported agreement to waive his charging lien, as plaintiff has failed to show that "but for counsel's alleged malpractice, the plaintiff would not have sustained some ascertainable damages (citation omitted)." See, Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 (1st Dep't 2002). Significantly, any claim for damages remains speculative in this case since it appears that plaintiff's former attorney has taken no steps to enforce the charging lien. Moreover, there is no indication that Mr. Preston intends to bring an action to recover legal fees against plaintiff.
In the event plaintiff's former attorney were to bring an action to recover unpaid fees, plaintiff would arguably be able to assert a defense or counterclaim arising from the same transactions or occurrences upon which the claim for fees in based, including an otherwise time-barred claim for legal malpractice. See, CPLR § 203(d).
The Amended Complaint fails to state a claim for legal malpractice against defendants based on their alleged failure to seek discovery on the counterclaims asserted against Mr. Flusser, since the Amended Complaint omits any reference to what additional documentation should have been sought. Moreover, it is unrefuted that the defendant firm was retained after the completion of discovery and the filing of the note of issue on or about March 17, 2014.
The Amended Complaint also fails to state a claim for legal malpractice against defendants based on their alleged failure to seek interim counsel fees in the matrimonial action, since it is unrefuted that any claim for legal fees would have been governed by, and limited to, the circumstances set forth in Article XIII of the Separation Agreement. See, Klein v Klein, 246 AD2d 195 (1st Dep't 1998).
Finally, the Amended Complaint fails to state a claim for legal malpractice based on defendants' purported failure to obtain the case file from plaintiff's former attorneys, as plaintiff has failed to allege that she sustained any resulting damages. Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, supra at 67.
Accordingly, defendants' motion to dismiss the Amended Complaint is granted; and it is hereby
ORDERED that the Clerk may enter judgment dismissing the Amended Complaint with prejudice; and it is further
ORDERED that that portion of the motion seeking sanctions is denied, in the discretion of the Court, without prejudice to defendants' right to pursue their claim for outstanding fees for legal services rendered in the underlying matrimonial action.
This constitutes the decision and order of this Court. Dated: September 24, 2019
/s/_________
Michael L. Katz
J.S.C.