Opinion
INDEX NO. 155241/2014
10-04-2019
SIMON HALWANI, Plaintiff, v. BORIS KOGAN & ASSOCIATES, P.C., Defendant.
NYSCEF DOC. NO. 39 PRESENT: HON. BARBARA JAFFE Justice MOTION DATE __________ MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6-38 were read on this motion for summary judgment.
Plaintiff moves pursuant to CPTR 3212 for an order granting him summary judgment solely on the issue of liability. Defendant opposes.
I. BACKGROUND
In 2005, nonparties Aurora Industries Inc. and Joseph Barsano initiated an action against plaintiff in Supreme Court, Kings County, alleging that Barsano and plaintiff were equal partners in Aurora, and that plaintiff was liable for conversion, breach of fiduciary duty, and breach of contract. (NYSCEF 17). During the course of that litigation, plaintiff moved for summary dismissal of the complaint, and Aurora and Barsano cross-moved for summary dismissal of plaintiff's counterclaim. By order dated April 7, 2008, the motion court granted each party's motion, stating that he had "read the various submissions and exhibits submitted to this court by each side." (NYSCEF 18). On January 27, 2010, defendant subpoenaed from the court all papers constituting the record on appeal from that order. (NYSCEF 20).
On plaintiff's appeal from that order, Aurora and Barsano contended that because plaintiff had omitted some exhibits which had been submitted to the court on the motion and cross motion, the appeal should be dismissed. Plaintiff argued that the court had rejected those exhibits and that the subpoenaed record does not include them. By order dated March 30, 2010, the Appellate Division, Second Department, held the appeal in abeyance, observing that the order appealed from did not indicate that any exhibits had been rejected. It remitted the matter to the motion court to hear and report as to the exhibits that had been considered in determining the motions. (NYSCEF 9). As the justice who had ruled on the motions had retired, another justice held the hearing ordered by the Appellate Division and on February 6, 2012, stated that she could not determine the evidence on which the motion court had relied. (NYSCEF 21).
By order dated January 20, 2013, plaintiff's appeal was dismissed due to an inadequate record. The Court held that "[u]nder these circumstances, and in light of the fact that both the plaintiffs and the defendant referenced the subject exhibits in their respective motion papers, we must conclude that these exhibits were before the Supreme Court when it determined the motion and cross motion." (NYSCEF 8).
By summons and complaint dated May 2, 2014, plaintiff initiated this action against defendant, his counsel in the prior action, alleging that it committed attorney malpractice by failing to compile an adequate record on appeal. He maintains that he was forced to incur additional and unnecessary legal costs for an appeal that was "doomed to fail," as well as the legal proceedings that followed the remittance of the matter for the hearing, and that he would not have suffered these damages absent defendant's failure to compile an adequate appellate record. (NYSCEF 1).
II. CONTENTIONS
A. Plaintiff (NYSCEF 6-11)
By affidavit dated February 27, 2019, plaintiff states that he retained defendant to represent him in the prior action and on the appeal based on the assurance of defendant's principal that he had experience handling appeals. If not for defendant's "inexperience, incompetence, and malpractice in perfecting the appeal, [his] appeal would have been heard and decided on the merits," he maintains, and complains of having paid for an appeal that was never perfected. (NYSCEF 10). Plaintiff contends that as defendant failed to uphold its obligation to assemble a proper record on appeal, resulting in the dismissal of his case, it is liable for attorney malpractice.
B. Defendant (NYSCEF 13-22)
By affidavit dated March 26, 2019, defendant's principal states that he had competently represented plaintiff in the prior action and that throughout the litigation, Aurora and Barsano refused to comply with plaintiff's discovery demands and did not file a note of issue, which resulted in the dismissal of their case. On their motion to restore the case, the court ordered Aurora and Barsano to comply with plaintiff's discovery demands and complete their depositions. Aurora and Barsano persisted in refusing to produce the demanded documents, and plaintiff thus refused to proceed with depositions and moved for summary judgment. Aurora and Barsano cross moved for summary judgment, and on the return date of the motions, they tried to submit an exhibit consisting of a box containing "thousands of pages of unidentified, irrelevant and incomprehensible documents unstapled, unbound and not labeled with exhibit tabs"; "large portions of the documents were printouts of email correspondence with prostitutes and pornographic materials purportedly obtained from [plaintiff's] work computer." The court rejected the box of documents and did so again on two subsequent court appearances. Thus, according to defendant, the box was never received in evidence or accepted by the court as part of the record.
Thereafter, the case was assigned to a different justice who granted both the motion and cross motion. Defendant's principal believes that when granting the motions and stating that the "various submissions and exhibits submitted" were read, the court referenced the 14 exhibits that plaintiff had attached to his motion, and the 10 exhibits attached to Aurora's and Barsano's cross motion, not the box of documents, including 10 separately stapled documents, that it had rejected.
Defendant's principal also alleges that on the appeal, Aurora and Barsano had argued that the record was incomplete because the box of documents, which allegedly included 10 additional separately marked exhibits, was omitted, and that because the motion court had rejected them, he did not include them or the rest of the box in the record on appeal. He also claims that as the box was not in the Supreme Court's record room, he could not add its contents to the record. Given the procedural history of the case, defendant adds, including the retirement of two justices who had presided in this matter, he acted reasonably.
According to defendant's principal, plaintiff is a sophisticated client who was heavily involved in the litigation strategy. In support, he details conversations he had with plaintiff and offers exhibits from unrelated matters for which plaintiff retained defendant. (NYSCEF 13).
Defendant argues that plaintiff fails to establish that it did not exercise proper care, skill, and diligence, that its conduct was the proximate cause of plaintiff's damages, that plaintiff suffered damages, and that plaintiff would have been successful in the underlying action but for defendant's conduct. Moreover, it claims, plaintiff's allegation that its conduct was improper is fatally conclusory. That plaintiff's appeal was dismissed does not constitute evidence of legal malpractice, and the decision to omit documents from the record on appeal which had been rejected by the motion court is reasonable and does not constitute malpractice, and the selection of one of many reasonable courses of action does not constitute malpractice; at worst, it made a nonactionable error in professional judgment, and as the outcome of the appeal was uncertain, plaintiff fails to establish causation. In any event, defendant maintains, plaintiff suffered no actual and ascertainable damages.
As plaintiff is unable to prove any of the elements of attorney malpractice, defendant asks that the complaint be summarily dismissed on a search of the record.
C. Reply (NYSCEF 23-24)
Plaintiff complains that in his affidavit, defendant's principal improperly reveals private information, intending to cast plaintiff in a bad light. He thus asks that the affidavit be stricken and sealed and that defendant and its principal be held liable "for this new breach of duty." He denies many of the statements contained therein, and asserts that others are irrelevant and, having never before been disclosed in a public forum or filing, thereby constituting a breach of confidentiality.
According to plaintiff, neither the appellate court nor the motion court referenced the box of unmarked documents, and the justice who rejected it remains on the bench. Thus, he maintains, defendant should have obtained evidence from that justice that the missing exhibits were never part of the record and should have subpoenaed testimony from the justice who had retired. Its failure to do so constitutes malpractice.
Plaintiff denies having micromanaged the litigation or having participated in the decision to omit the missing exhibits. He refines his argument to the extent that he claims that "his damage theory is not that, absent Defendant's malpractice, he would have won a recovery in the underlying matter, but rather, absent Defendant's malpractice, he would not have lost the money that he paid to Defendant for its incompetent representation." Had he known that defendant would not properly handle the appeal, he "might not have pursued the appeal, or he might have retained competent counsel and received value for his legal fees."
D. Oral Argument (NYSCEF 38)
At oral argument, plaintiff conceded having offered no evidence that he would have prevailed on appeal but for defendant's conduct.
III. ANALYSIS
The communications and documents concerning unrelated matters offered by defendant are not considered, nor is defendant's sur-reply in which he addresses the propriety of those submissions.
To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. (Matter of New York City Asbestos Litig., 33 NY3d 20, 25-26 [2019]). If this burden is met, the opponent must offer evidence in admissible form demonstrating the existence of factual issues requiring a trial; "conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." (Justinian Capital SPC v WestLB AG, 28 NY3d 160, 168 [2016], quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 [1988]). In deciding the motion, the evidence must be viewed in the "light most favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference." (O'Brien v Port Authority of New York and New Jersey, 29 NY3d 27, 37 [2017]).
To state a cause of action for legal malpractice, plaintiff must allege attorney negligence, that the negligence was the proximate cause of the loss sustained, and actual damages. (Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). To be negligent, an attorney's conduct must fall below the "ordinary and reasonable skill and knowledge commonly possessed by a member of the profession." (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Dissatisfaction with an attorney's reasonable strategic choices and tactics does not constitute a basis to state a cause of action for attorney negligence. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]). Plaintiff must also show that "but for" defendant's malpractice, plaintiff would not have suffered "actual ascertainable damages." (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).
As plaintiff admittedly fails to demonstrate that but for defendant's alleged negligence, plaintiff would have succeeded in the underlying litigation, he does not demonstrate, prima facie, an essential element of his claim. (See Ruotolo v Mussman & Northey, 105 AD3d 591, 592 [1st Dept 2013], lv denied 22 NY3d 855 [2013] [dismissing complaint where "plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action 'but for' defendants' alleged negligence"]).
In deciding a motion for summary judgment, a court may search the record and grant summary judgment to the nonmoving party. (New Hampshire Ins. Co. v MF Glob., Inc., 108 AD3d 463, 467 [1st Dept 2013]; CPLR 3212[b]).
The record demonstrates that after the hearing on whether the exhibits should have been included, neither the hearing court nor the appellate court was able to conclude whether the exhibits were properly omitted from the record on appeal. As the exhibits were not included among the documents defendant had received with the subpoenaed record, its failure to assemble the appellate record (CPLR 5526) does not prove that it was negligent (see e.g., Zbryski v Kahn, 276 AD2d 255 [1st Dept 2000], lv denied 96 NY2d 701 [dismissing attorney malpractice action notwithstanding the defendants' failure to perfect appeal in underlying action]), especially given plaintiff's failure to allege that he would have succeeded in the underlying action absent defendant's allegedly negligent conduct (see Leder v Spiegel, 31 AD3d 266, 267-268 [1st Dept 2006], affd 9 NY3d 836 [2007] [complaint must set forth that attorney negligence was proximate cause of damages, and failure to do so mandates dismissal of legal malpractice action regardless of whether attorney was negligent]).
Thus, defendant's omission of the exhibits does not rise to the level of negligence amounting to malpractice, notwithstanding the dismissal of the appeal. (See Brenner v Reiss Eisenpress, LLP, 155 AD3d 437, 438 [1st Dept 2017] ["dismissal of the legal malpractice claim was proper since the claim rested on retrospective complaints about the outcome of defendants' strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable"]).
To the extent that plaintiff claims that the attorney fees paid to defendant to represent him constitute actual damages, absent sufficient evidence that defendant's conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession, or that he would have succeeded in the underlying action, the claim need not be addressed. Plaintiff's request that the affidavit of defendant's principal be stricken and/or sealed is addressed in the decretal.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that plaintiff's motion for summary judgment is denied in its entirety; it is further
ORDERED, that upon a search of the record, defendant is granted summary judgment, the complaint is dismissed in its entirety, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED, that the parties meet and confer with the goal of reaching an agreement as to appropriate redactions of defendant's principal's affidavit, and to notify the court within 45 days as to their agreement. 10/4/2019
DATE
/s/ _________
BARBARA JAFFE, J.S.C.