Opinion
9418/2009.
Decided May 25, 2010.
Ronald V. De Caprio, Esq. (no copy sent because no envelope provided), Garnerville, NY, Attorney for Plaintiff.
Steinberg Cavaliere, LLP, White Plains, NY Attorneys for Defendant
Plaintiff brings a claim for attorney malpractice against defendant, who represented her in the case of Goldstein v. Held ("the Goldstein lawsuit"), involving property she owned. Defendant moves for an order pursuant to CPLR §§ 3211 (a) (1) (5) and (7) dismissing plaintiff's complaint (1) for failure to state a cause of action; (2) because the complaint is barred by documentary evidence; and (3) because it is barred by collateral estoppel.
The Standard for A Motion to Dismiss Pursuant to CPLR § 3211
When considering a motion to dismiss pursuant to CPLR § 3211, the pleadings must be given liberal construction. The court must accept the facts alleged in the complaint as true, and determine whether the facts fit within any cognizable legal theory. Kempf v. Magida , 37 AD3d 763 , 832 NYS2d 47 (2d Dept. 2007). A court may consider affidavits and other evidentiary materials to determine whether a cause of action has been established. See Simmons v. Edelstein , 32 AD3d 464 , 820 NYS2d 614 (2d Dept. 2006); Rovello v. Orofino Realty Co., 20 NY2d 633, 389 NYS2d 314 (1976). A brief summary of the facts of the Goldstein lawsuit is required to determine whether plaintiff has stated a claim for legal malpractice.
Background of the Goldstein Lawsuit
Defendant Seidenberg represented plaintiff in an action brought by Michael and Chaya Goldstein seeking specific performance of a contract for the sale of certain real property owned by Ms. Held. Ms. Held counter-claimed, alleging fraud and malicious prosecution. Although plaintiff had requested a jury trial, the Hon. Alfred J. Weiner first held a non-jury trial of the equitable claim for specific performance. At the three-day trial, plaintiff testified that she did not agree to sell her property, but she did meet with Michael Goldstein on July 4, 2003 and accepted a $5,000 "gift" from him. She further testified that she signed a blank piece of folded paper acknowledging the gift. At the meeting she also gave him her deed to photocopy. In contrast, Goldstein testified that plaintiff had contacted him and agreed to the meeting, at which time they reached a deal for her to sell him her property for $265,000. Goldstein entered into evidence the contract of sale signed by plaintiff, which also acknowledged a $5,000 cash deposit.
The matter was originally before the Hon. William K. Nelson, who denied Goldstein's motion to strike the demand for a jury trial, on the basis that Held had asserted legal counterclaims which were triable before a jury. After the case was transferred to the Hon. Alfred J. Weiner, Judge Weiner decided to proceed with the equitable claims first and hold a non-jury trial. He decided that if Goldstein's claim was unsuccessful, the Court would proceed with a jury trial on Held's counterclaims. Defendant Seidenberg objected to this decision on the Record.
The record of these proceedings establish two very different versions of the events involving the deal to sell the property, the circumstances involving the signing of the contract and the inaccurate information contained in the contract.
By decision dated January 26, 2006, Judge Weiner found that Held's version of the events was "not credible." The decision states: "The Court finds that the defendant [Held] signed the contract in evidence, that she accepted and retained a $5,000.00 cash downpayment, that she changed her mind about the sale, and that she communicated to the plaintiff her unwillingness to go through with it."
Plaintiff's counsel thereafter, as directed by the Decision, drafted a Judgment which was signed by Judge Weiner and filed on February 21, 2006. The Judgment tracked the Decision, granting specific performance of the contract and costs to Goldstein, and dismissing plaintiff's counterclaims against him.
Thereafter, defendant Seidenberg filed an appeal on Ms. Held's behalf. The points on appeal challenged the validity of the contract, and additionally argued that the trial judge should have granted plaintiff a jury trial. In a Decision and Order filed on March 16, 2007, the Appellate Division affirmed the judgment. Goldstein v. Held , 37 AD3d 657 , 830 NYS2d 348 (2d Dept. 2009). The decision defers to the trial judge's ability to observe the witnesses and hear the testimony. The decision states, in relevant part, that "there was sufficient evidence demonstrating that the defendant entered into a contract for the sale of real property, that she repudiated the contract in a manner constituting an anticipatory breach. . . ." With respect to the counterclaims and the issue of the denial of the jury trial, the decision further states "the defendant's remaining contention is without merit." Id.
The crux of plaintiff's malpractice action against defendant theorizes that plaintiff would have been successful in her counterclaims against Goldstein if she had been given a jury trial. She contends that defendant was negligent in failing to prosecute and preserve her right to a jury trial. It is plaintiff's further allegation that defendant's failure to obtain a jury trial on her counterclaims resulted in the loss of her property to Goldstein. She seeks damages in the amount of $5.5 million dollars — even though the Judgment (and supplemental judgment) which was entered against her is based on a sale price of $265,000, court costs, and use and occupancy charges for the time that Ms. Held was wrongfully in possession of the premises.
Plaintiff claims that (1) defendant should have requested a stay of the trial to seek appellate review of Judge Weiner's sua sponte ruling for a non-jury trial; (2) he did not oppose the proposed Judgment which dismissed her counterclaims; and (3) he was negligent in failing to preserve her right to appeal the Judgment to the Court of Appeals.
This Court must determine whether these facts as alleged by plaintiff are sufficient to survive a motion to dismiss for legal malpractice. Accepting all of plaintiff's allegations as true — that defendant's failure to obtain a jury trial and to preserve the right to a jury trial on appeal was negligent — the question is: is there even a small chance that plaintiff could have prevailed at trial, or on a motion for summary judgment. Rovello, 20 NY2d at 635.
The law is well-established that in order to recover damages for legal malpractice, a plaintiff must demonstrate that (1) the attorney neglected to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community; (2) the attorney's negligence was a proximate cause of the damages sustained by plaintiff; (3) the plaintiff sustained actual damages as a direct result of the attorney's conduct and (4) "but for" the attorney's negligence, the plaintiff would have prevailed in the action or would never have suffered damages. Simmons, 32 AD3d at 465. See generally Menicucci Villa Assoc. v. Pickett , 24 AD3d 734 , 805 NYS2d 853 (2d Dept. 2005); Ashton v. Scotman, 260 AD2d 332, 686 NYS2d 322 (2d Dept. 1999).
In the Golstein case, the trial Court found that Ms. Held's testimony was simply not credible. Judge Weiner correctly decided to hear the equitable claim first without a jury. If the Court had ruled against the Goldsteins, then a jury trial would have followed on Ms. Held's counterclaims. But because the Court determined that Ms. Held had in fact entered into a valid contract to sell her property, the need for a jury trial on her counterclaims was no longer necessary. In other words, by finding for the Goldsteins at trial, the Court necessarily determined that Ms. Held's claims were baseless.
On appeal, the Appellate Court not only deferred to the trial Court, since it had had the benefit of observing the witnesses, but it also specifically found that plaintiff's remaining claims "were without merit." Based on Judge Weiner's Decision and the Appellate Division's affirmation of that decision, it is clear that plaintiff cannot succeed in an action for legal malpractice against defendant. Plaintiff's complaint against Mr. Seidenberg substantially rehashes her contention that she should have had a jury trial on her counterclaims, but she fails to show that the level of skill or care that defendant used in representing her was less than that which would have been used by any other member of the legal community.
Held obtained new counsel to represent her on the appeal, and made several other attempts to overturn Judge Weiner's decision. Her new counsel made a motion to reargue to the Appellate Division, or for leave to appeal to the Court of Appeals. This was denied by Decision and Order dated June 4, 2007. Another attempt to challenge the Judgment at the Court of Appeals was denied as untimely. Held also sought to vacate the Judgment based on alleged defects. By Decision and Order dated May 2, 2008, Judge Weiner denied this application, and the Appellate Division affirmed this Decision. Plaintiff contends her failure to obtain relief from the trial Court, Appellate Division and the Court of Appeals is due to the defendant's negligence (although she was not represented by defendant on all of those occasions).
Plaintiff has similarly not established causation between defendant's actions and her damages. The trial Court — and the Appellate Division — did not accept Ms. Held's version of the events leading up to the sale of the property. Defendant's representation of her was not to blame in that regard. Put simply, Ms. Held lost her case because her story was not credible. Defendant's inability to obtain a jury trial of her counterclaims (or possibly preserve her right to appeal the Judgment to the Court of Appeals) would not have made her story any more believable. Plaintiff's speculation that a jury would have believed her version of the events where the Court and the Appellate Division did not is not a basis upon which a claim for malpractice can stand. See, e.g., Brooks v. Lewin , 21 AD3d 731 , 800 NYS2d 695 (1st Dept. 2005); Smollens Guralnick Frazer, LLP v. Halo, 2002 WL31748596 (NY Sup App. Term 2002) (No showing that "but for" attorneys' negligence, client would have prevailed in the underlying litigation).
Nor, based on the evidence presented at the trial and in the supporting exhibits in evidence, is it likely that plaintiff can establish damages of $5.5 million dollars.
Accordingly, defendant's motion to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action is granted.
The foregoing constitutes the decision and order of the Court.