Opinion
Index No. 67367/2023
05-18-2024
Richard Lynn Getty, Plaintiff, v. Daniel M Schiavetta Jr, MURPHY HIGGINS &SCHIAVETTA PLLC., RUSSO & GOULD LLP., RUSSO & TONER LLP, Defendants.
Richard Lynn Getty, pro se Rivkin Radler LLP - counsel for Deutsche.
Unpublished Opinion
Richard Lynn Getty, pro se
Rivkin Radler LLP - counsel for Deutsche.
HON. ROBERT S. ONDROVIC, J.S.C.
In an action to recover damages for alleged legal malpractice, pro se plaintiff moves for an order granting default judgment against Russo & Gould LLP and Russo & Toner LLP (collectively, Russo defendants) (Motion Seq. 1), Russo defendants cross-move for an order extending their time to appear in the action (Motion Seq. 2), and Daniel M. Schiavetta, Jr and Murphy Higgins & Schiavetta, PLLC (collectively, Schiavetta defendants) cross-move to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7) (Motion Seq. 3).
Papers Considered NYSCEF Doc. Nos. 15-19, 23-58
1. Notice of Motion/Affidavit of Richard Getty/Exhibits 11-13
2. Notice of Cross-Motion/Affirmation of Alan Russo, Esq./Affirmation of Emily Carroll/Affirmation of Amanda R. Griner, Esq./Exhibits A-R/Memorandum of Law in Opposition and in Support of Cross-Motion
3. Notice of Cross-Motion/Affirmation of Benjamin M. Oxenburg, Esq./Exhibits A-B
4. Affidavit of Richard Getty in Opposition and Further Support/Exhibits 14-16
5. Affidavit of Richard Getty in Opposition/Exhibits 17-18
6. Affirmation of Benjamin M. Oxenburg, Esq. in Reply
Discussion
By way of background, pro se plaintiff commenced this action by filing a summons and complaint on September 24, 2023, to recover damages for alleged legal malpractice. The complaint asserts claims for legal malpractice and violation of Judicial Law § 487. Plaintiff alleges that defendants committed legal malpractice in their representation of plaintiff in prior litigations for damages stemming from mold contamination in plaintiff's cooperative unit located in Port Chester, New York. The parties in the underlying litigations participated in private mediation and the litigations were settled by agreement in October 2020 (Settlement Agreement). Plaintiff alleges that he agreed to settlement terms on August 11, 2020, but defendants had "put plaintiff against a wall" and left "him with no choice but to agree to a different settlement" (i.e., the Settlement Agreement) (complaint at 4-5 [NYSCEF Doc. 1]).
Plaintiff brought the following actions in this Court: Getty v 35 Summit Avenue Owners Ltd. Board of Directors, index no. 52528/2015; Getty v 35 Summit Avenue Owners Ltd., index no. 58601/2018; and Getty v Charles Goh, index no. 60345/2018.
Plaintiff now moves for an order granting default judgment against Russo defendants in the amount of $99,000.00, representing the market value of plaintiff's property, as well as health damages, costs, and interest.
At the time of plaintiff's motion, none of the defendants had answered or appeared, although plaintiff and Schiavetta defendants entered a stipulation extending Schiavetta defendants' time to answer.
The stipulation was filed one day after plaintiff moved for default judgment against Russo defendants (stipulation [NYSCEF Doc. 21]).
In support, plaintiff proffers his affidavit, wherein he realleges allegations set forth in the complaint and adds that he understands that Schiavetta is no longer professionally associated with Russo & Toner LLP and, therefore, plaintiff contends that defendants are independently liable. Plaintiff also submits, among other things, copies of text exchanges with Schiavetta and correspondence from a realtor indicating that plaintiff's apartment is "unsaleable" due to mold contamination (exhibit 13 [NYSCEF Doc. 19]).
Russo defendants cross-move seeking an order extending their time to appear.
In support, Russo defendants proffer, among other things, affirmations of Alan Russo and Emily Carroll, filings in plaintiff's prior litigations, the Settlement Agreement, and correspondence between their counsel and plaintiff regarding an extension of time to respond to the complaint.
In his affirmation, Russo affirms that he is the general partner of Russo & Gould LLP and that it was known as Russo & Toner LLP prior to January 6, 2021. Russo also affirms that the instant summons and complaint were delivered to Carroll, who was employed by Russo & Gould LLP as a calendar clerk and was not authorized to accept service on behalf of the firm. Russo further affirms that only he and David Gould were authorized to accept service on behalf of the firm and that Russo only became aware of the instant lawsuit when Schiavetta provided him a copy of the summons and complaint in early March 2024. Russo contends that after learning of the lawsuit, his firm immediately hired counsel and attempted to procure an extension of time to respond to the complaint.
In her affirmation, Carroll affirms that she is a calendar clerk for Russo & Gould LLP, that she is not authorized to accepted service of process for the firm, and that on January 18, 2024, at approximately 9:00 am, while walking through the lobby of the building for the offices of Russo & Gould LLP, an unidentified man asked her to drop off some papers to the firm. According to Carroll, the man asked for her name and position at the firm but did not ask if she was authorized to accept service nor did the man identify himself as a process server. Carroll also affirmed that the envelope containing the papers was addressed to Schiavetta and bore no indication of its contents. Carroll then left the envelope on Schiavetta's desk.
Russo defendants argue that they were never properly served the summons and complaint and nevertheless have a reasonable excuse for their default, meritorious defenses to plaintiff's claims, and demonstrated an intent to participate and defend this action. Russo defendants also contend that denial of plaintiff's motion will not prejudice plaintiff and that strong public policy weighs in favor of allowing this case to proceed on the merits.
As to meritorious defenses, Russo defendants contend that plaintiff's failure to serve Russo defendants within 120 days of commencing the action warrants dismissal of the complaint as asserted against them.
Specific to the legal malpractice claim, Russo defendants contend that the claim is defective because the complaint's conclusory allegations merely reflect a subsequent dissatisfaction with the settlement and because the terms of the Settlement Agreement, as signed by plaintiff, demonstrate that plaintiff entered the agreement with full knowledge and understanding that it did not require defendants in the underlying cases to make any repairs. This latter point was confirmed in an email exchange between plaintiff and Schiavetta. Moreover, plaintiff accepted the benefits of the agreement, namely $90,000.00.
As to the claim premised on alleged violation of Judicial Law § 487, Russo defendants contend that the complaint fails to allege, and plaintiff cannot establish, that Russo defendants engaged in deceit or collusion.
In opposition, plaintiff argues, among other things, that Russo defendants' allegations related to lack of service of process are not believable and unsupported by evidence. Plaintiff further argues that a representative of his process server claimed that process papers were enclosed in an envelope addressed to Russo & Gould and not to Schiavetta. Plaintiff further contends that his suit is not frivolous and reasserts allegations from the complaint.
Schiavetta defendants cross-move seeking an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7).
Schiavetta defendants request that the dismissal be with prejudice.
In support, Schiavetta defendants proffer the complaint and the Settlement Agreement.
Schiavetta defendants make similar arguments against plaintiff's claims as Russo defendants presented in their cross-motion but add that if plaintiff was dissatisfied with the Settlement Agreement as drafted, he should have refused to sign it. Schiavetta defendants contend that it is undisputed that after being presented with the draft Settlement Agreement which allegedly did not fully reflect what plaintiff had agreed to in voluntary mediation, plaintiff nevertheless executed the very same agreement four days later.
Schiavetta defendants also contend that the mediation in question was completely voluntary, that plaintiff was under no obligation to settle, and that plaintiff could have continued litigating the underlying matters.
As to proximate cause vis-à-vis the malpractice claim, Schiavetta defendants contend that the complaint fails to allege that defendants in the prior litigations would have consented to an agreement where they accepted total liability and were obligated to repair plaintiff's apartment at their own expense or that plaintiff would have achieved a more favorable outcome had he not settled.
As to the Judicial Law § 487 claim, Schiavetta defendants also contend that the complaint fails to allege deceit or intent to deceive with particularity and that claims under Judicial Law § 487 do not apply to alternative dispute resolution proceedings such as the mediation in question.
In opposition, plaintiff argues, among other things, that Schiavetta defendants fail to address the allegations in the complaint and that plaintiff was fraudulently induced to sign the Settlement Agreement. Plaintiff contends that correspondence between him and Schiavetta-which was submitted with the complaint (exhibit 8 to the complaint [NYSCEF Doc. 9]) and resubmitted in both of plaintiff's opposition papers-proves Schiavetta negligently handled plaintiff's matter and led plaintiff to take a bad settlement.
As plaintiff sees it, that correspondence demonstrates plaintiff's understanding of a settlement as of August 11, 2020 and Schiavetta's confirmation of that understanding. The correspondence further purports to show that plaintiff had sent requests to Schiavetta on August 25, 2020 to include specific repairs in the "final release" and after plaintiff's apparent review of the final agreement, on September 21, 2020, plaintiff informed Schiavetta that the agreement did not include earlier terms he had accepted.
In reply, Schiavetta defendants argue that plaintiff's opposition failed to address any of their legal arguments and that plaintiff does not dispute that he knowingly accepted the benefits of the Settlement Agreement after he signed it. Schiavetta defendants further argue that since plaintiff ratified the Settlement Agreement and accepted its benefits for three years, plaintiff should be foreclosed from asserting a malpractice claim.
Motion Sequence 1
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing" Clarke v Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194 [2d Dept 2017]). In determining whether plaintiff's cause of action is viable, "[t]he court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (id.).
"To extend the time to answer the complaint and/or avoid the entry of a default judgment, a defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action" (Rodie v Sahai, 175 A.D.3d 1449, 1449 [2d Dept 2019]). "Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (id. at 1449-1450 [internal quotation marks and citation omitted]; Natanel v Plaza Ins. Co., 200 A.D.3d 890, 891 [2d Dept 2021]).
As to service upon limited partnerships, CPLR 310-a(a) provides:
Personal service upon any domestic or foreign limited partnership shall be made by delivering a copy personally to any managing or general agent or general partner of the limited partnership in this state, to any other agent or employee of the limited partnership authorized by appointment to receive service or to any other person designated by the limited partnership to receive process, in the manner provided by law for service of summons, as if such person was the defendant. Personal service upon a limited partnership subject to the provisions of article eight-A of the partnership law may also be made pursuant to section 121-109 of such law.
Here, Russo defendants demonstrated that they were not properly served since Carroll was not authorized to accept service on behalf of Russo & Gould. Plaintiff failed to rebut Russo defendants' showing with admissible evidence. To the extent plaintiff calls into question Carroll's apparent authority to accept service, the Court in its discretion finds any error on Carroll's part akin to law office failure and therefore Russo defendants' default is excused (see CPLR 2005). Russo defendants also demonstrated potentially meritorious defenses, which plaintiff failed to substantively address beyond reasserting allegations from the complaint.
The Court notes that plaintiff submitted a copy of the affidavit of service for the summons and complaint on Russo & Gould, along with a copy of an email purportedly from the process server (corrected exhibit 16 to plaintiff's affidavit [NYSCEF Doc. 54]). However, plaintiff's affidavit does not discuss the attached email and therefore the Court will ascribe it little probative weight. Also carrying light probative weight is plaintiff's recitation of unsworn statements purportedly given by the process server's representative as to the papers served and the manner of service. Lastly, the affidavit of service merely states "Emily Carroll (Calendar Clerk) who identified themselves as the authorized person to accept documents" (id.). The affidavit does not explicitly state that Carroll identified herself as authorized to accepted service, as Russo defendants argue.
Furthermore, the relatively brief length in the delay in appearing (from purported service), Russo defendants' efforts to secure from plaintiff an extension of time to respond, lack of prejudice to plaintiff, and the strong public policy in favor of resolving cases on the merits all inure to the benefit of Russo defendants.
Accordingly, plaintiff's application for default judgment against Russo defendants is DENIED.
Motion Sequence 2
To the extent Russo defendants intend to participate in the instant litigation, they demonstrated a reasonable excuse for their default in that they were not aware of this suit until March 2024, and they also demonstrated meritorious defenses to plaintiff's claims (see, e.g., Benishai v Epstein, 116 A.D.3d 726, 727 [2d Dept 2014] ["a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice"]; DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 A.D.3d 774, 776 [2d Dept 2020] [affirming dismissal of Judiciary Law § 487 cause of action because only conclusory pleading of intent to deceive]). Moreover, given that plaintiff extended Schiavetta defendants an extension of time to respond to the complaint, Russo defendants established that plaintiff will not be prejudiced by the granting of Russo defendants' cross-motion.
Accordingly, Russo defendants' cross-motion for an order extending their time to appear in the action is GRANTED.
Motion Sequence 3
Dismissal pursuant to CPLR 3211 (a)(1) is only appropriate "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mut. Life Ins. Co., 98 N.Y.2d 314, 326 [2002]).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings must be afforded a liberal construction and the Court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 [2017]; Bass v D. Ragno Realty Corp., 111 A.D.3d 863, 863 [2d Dept 2013]). "In assessing a motion under CPLR 3211 (a)(7) a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon, 84 N.Y.2d at 88 [internal quotation marks and citations omitted]).
""To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages" (Katsoris v Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505 [2d Dept 2020] [internal quotation marks and citation omitted]). "To establish causation in a legal malpractice action, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (id. [internal quotation marks and citation omitted]). "Failure to establish proximate cause mandates dismissal of a legal malpractice action" (Simmons v Edelstein, 32 A.D.3d 464, 466 [2d Dept 2006]).
Here, the complaint fails to allege facts establishing proximate cause, namely, that the defendants in the prior litigations would have executed an agreement requiring them to pay more than what was agreed to in the Settlement Agreement or to additionally repair plaintiff's cooperative unit at their own expense. Moreover, the complaint fails to allege fraud with any particularity (see CPLR 3016[b]; see Browne v Lyft, Inc., 219 A.D.3d 445, 447 [2d Dept 2023]; Shah v Mitra, 171 ADed 971, 976 [2d Dept 2019]). These deficiencies warrant dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(7), but the latter deficiency is also fatal to plaintiff's opposition to relief pursuant to CPLR 3211(a)(1) premised on plaintiff's execution of the Settlement Agreement.
The Settlement Agreement, signed by plaintiff, includes the following representation attributed to plaintiff as the releasor:
Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims (exhibit B to Oxenburg affirmation, Settlement Agreement at 3 [NYSCEF Doc. 49] [emphasis added]).
Given that the Settlement Agreement declares plaintiff "voluntarily accepted" the terms of the agreement, absent a sufficient pleading of fraud, coercion, or inducement, the Settlement Agreement utterly refutes plaintiff's factual allegations (Miller v Brunner, 164 A.D.3d 1228, 1231 [2d Dept 2018] ["A signed release shifts the burden of going forward... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release" [internal quotation marks, brackets, and citation omitted]).
As to plaintiff's Judiciary Law § 487 cause of action, "[a] violation of Judiciary Law § 487 requires an intent to deceive" (Guliyev v Banilov & Assoc., P.C., 221 A.D.3d 589, 591 [2d Dept 2023] [internal quotation marks and citation omitted]). "Allegations regarding an act of deceit or intent to deceive must be stated with particularity" (id. [internal quotation marks and citation omitted]).
Here, the complaint also fails to allege deceit or intent to deceive with any particularity, which necessitates dismissal of the Judiciary Law § 487 cause of action (see id.; DeMartino, 189 A.D.3d at 776 [dismissing Judiciary Law § 487 claims because only conclusory pleading of intent to deceive]).
Accordingly, Schiavetta defendants' cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is GRANTED, but as the dismissal is due to deficiencies in the pleading, the dismissal will be without prejudice (see Cadet-Duval v Gursim Holding, Inc., 147 A.D.3d 718, 720 [2d Dept 2017]).
All other arguments raised, and evidence submitted, on the applications have been considered notwithstanding the specific absence of reference thereto.
Based on the foregoing, it is hereby
ORDERED that plaintiff's motion for default judgment (Motion Seq. 1) is DENIED; and it is further
ORDERED that Russo defendants' cross-motion for an order extending their time to appear in the action (Motion Seq. 2) is GRANTED; and it is further
ORDERED that Russo defendants' time to respond to the complaint is extended by thirty (30) days from entry of this Order; and it is further
ORDERED that Schiavetta defendants' cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) (Motion Seq. 3) is GRANTED to the extent that the complaint as asserted against Schiavetta defendants is dismissed without prejudice.