Opinion
27337/2002.
Decided January 31, 2006.
Howard R. Birnbach Esq., Great Neck, NY, for Plaintiff.
Kristopher M. Dennis Esq., Kaufman Borgeest Ryan LLP New York, NY, for Defendand Jacoby Meyers.
I. BACKGROUND
Plaintiff sues to recover damages for legal malpractice arising from defendant Lopez's failure to commence a personal injury action timely on plaintiff's behalf. Defendant Jacoby Meyers moves for summary judgment dismissing the complaint against this defendant on the ground that the law firm is not liable to plaintiff. C.P.L.R. § 3212(b). For the reasons explained below, the court grants the motion by Jacoby Meyers and dismisses the firm from the action.
II. LIABILITY OF DEFENDANT JACOBY MEYERS
Plaintiff's legal malpractice claim against defendant Jacoby Meyers requires plaintiff to establish an attorney-client relationship with defendant. Linden v. Moskowitz, 294 AD2d 114, 115 (1st Dep't 2002); D'Amico v. First Union Natl. Bank, 285 AD2d 166, 172 (1st Dep't 2001). Jacoby Meyers claims that no evidence indicates the law firm entered an attorney-client relationship with plaintiff at any time, and any evidence of attorney Lopez's affiliation with the firm was due to his own culpable conduct. Plaintiff claims that Jacoby Meyers is liable for the acts of Lopez, its agent, and Lopez at minimum was clothed with apparent authority.
A. Defendant's Evidence
Plaintiff testified at her deposition that she retained Lopez to handle a personal injury action. Although the identified retainer agreement dated December 20, 1999, bears a logo indicating an affiliation with Jacoby Meyers, plaintiff admits that the retainer's text obligates only Lopez to perform legal services for her and makes no reference to Jacoby Meyers. Plaintiff further admits to consulting with only Lopez regarding her case. Moreover, Lopez's letter dated June 3, 2002, and received by plaintiff, advising her he would no longer represent her in her action, does not indicate any affiliation with Jacoby Meyers.
Andrew Finkelstein, the managing partner of Jacoby Meyers and a partner in Finkelstein, Levine, Gittlesohn Partners, attests to a management service agreement between the latter firm and Jacoby Meyers in March 1999, dissolving Jacoby Meyers as a legal entity, while maintaining its name. After the dissolution, Jacoby Meyers allowed its former offices to become affiliated independent offices upon executing a July 1999 affiliate agreement. Finkelstein denies that Lopez was affiliated with Jacoby Meyers when plaintiff retained him in December 1999 or when he terminated his representation of her in June 2002. Although Lopez acquired the practice of former Jacoby Meyers limited liability partner Barbara Sperling, who left Jacoby Meyers in April 1999, and Lopez referred cases to Jacoby Meyers, he never executed the July 1999 affiliate agreement. Finkelstein disclaims familiarity with or authorization of Lopez's letterhead indicating an affiliation with Jacoby Meyers.
Jacoby Meyers also corresponded with Lopez after his December 1999 retainer, but Finkelstein explains that this correspondence was to obtain data for the dissolved partnership's 1999 tax returns and to record cases referred to and from affiliates. This information covered the period in 1999 before the July 1999 affiliate agreement and before Sperling's April 1999 departure. In fact, in response to a letter dated August 29, 2000, from Jacoby Meyers, Lopez submitted a list of all cases he or Sperling referred to the firm, which did not include plaintiff's case.
Attorney Barbara Sperling's deposition testimony confirms the transfer of her practice to Lopez. Sperling testified that during her tenure with Jacoby Meyers, its personal injury cases all were processed through its New York County office. She and Lopez maintained their office in Bronx County. She also denies familiarity with the retainer agreement signed by plaintiff or that her letterhead ever bore a logo indicating an affiliation with Jacoby Meyers.
All this evidence demonstrates the absence of an attorney-client relationship between Jacoby Meyers and plaintiff and establishes a prima facie defense on this ground.
B. Plaintiff's Rebuttal
Plaintiff points to her deposition testimony that in November or December 1999, she telephoned Jacoby Meyers at the number listed in the telephone book, and whoever answered at that number directed her to Lopez's office, which posted a Jacoby Meyers sign. Plaintiff's affidavit further attests that Lopez gave her a business card that also bore a logo indicating an affiliation with Jacoby Meyers. Finally, plaintiff refers to the New York Lawyers Diary and Manual that listed Lopez as a Jacoby Meyers employee.
While this evidence may have furnished a basis for suspecting an affiliation, in the face of the uncontroverted testimony that Lopez's use of a Jacoby Meyers logo was unauthorized and postdated the firm's dissolution and that Sperling separated from the firm in early 1999, the evidence fails to connect Lopez with Jacoby Meyers. Plaintiff's subjective belief of an attorney-client relationship is not determinative. Weadick v. Herlihy, 16 AD3d 223, 224 (1st Dep't 2005); Jane St. Co. v. Rosenberg Estis, 192 AD2d 451 (1st Dep't 1993); Solondz v. Barash, 225 AD2d 996, 998 (3rd Dep't 1996).
Plaintiff also relies on Lopez's hearsay representation that he and Jacoby Meyers would handle her case. Absent Lopez's authority from Jacoby Meyers to make such a representation, this hearsay does not constitute an admission binding Jacoby Meyers. Tyrell v. Wal-Mart Stores, 97 NY2d 650, 652 (2001); Candela v. City of New York, 8 AD3d 45, 47 (1st Dep't 2004). Plaintiff presents no evidence that Lopez possessed that authority.
Plaintiff's reliance on Sperling's testimony regarding a letter from Jacoby Meyers that it would accept Lopez as a partner in Sperling's place fails as double hearsay. Neither plaintiff nor Jacoby Meyers offers the letter, even though plaintiff could have sought it in disclosure. Moreover, assuming Sperling's account of the letter is accurate, Lopez would have stood in Sperling's place only until the July 1999 dissolution.
Finally, a facsimile dated November 22, 2000, from Jacoby Meyers, which it distributed to Lopez, and on which plaintiff further relies to establish defendants' connection, is also substantively unavailing. The communication seeks confirmation by former limited liability partners that they ceased being partners in Jacoby Meyers before December 31, 1999, and thus relates to Sperling. Lopez's letter dated November 27, 2000, to Jacoby Meyers, unilaterally declaring that he assumed Sperling's status as a limited liability partner, does not show that the firm held him in that status. Even if he did assume that status, it terminated with the dissolution, before plaintiff retained him. Any lesser status, such as an attorney's "of counsel" relationship with a firm, would not establish privity between the firm and a client of the attorney. Hirsch v. Weisman, 189 AD2d 643, 644 (1st Dep't 1993).
C. Conclusion
Plaintiff's admitted lack of contact and lack of relationship with Jacoby Meyers are fatal to her malpractice action against this defendant. She fails to establish that Jacoby Meyers explicitly undertook to perform a service for her, either orally or in writing, Volpe v. Canfield, 237 AD2d 282, 283 (2nd Dep't 1997); assisted in prosecuting her case, DiPietro v. Seth Rotter, P.C., 5 AD3d 224, 225 (1st Dep't 2004); Wei Cheng Chang v. Pi, 288 AD2d 378, 380 (2nd Dep't 2001); or corresponded with her. Karlsson Ng v. Frank, 162 AD2d 269 (1st Dep't 1990). Any such activities on the part of Jacoby Meyers could demonstrate an attorney-client relationship.
As set forth above, plaintiff also fails to show any representations or other actions by Jacoby Meyers that granted Lopez apparent authority to contract for and bind the firm. Indosuez Intl. Fin. v. National Reserve Bank, 98 NY2d 238, 245-46 (2002); Standard Funding Corp. v. Lewitt, 89 NY2d 546, 551 (1997); Clark v. Bristol-Myers Squibb Co., 306 AD2d 82, 84 (1st Dep't 2003); Parlato v. Equitable Life Assur. Socy. of U.S., 299 AD2d 108, 112-13 (1st Dep't 2002). Nor does plaintiff establish fraud, collusion, or malicious acts by Jacoby Meyers or other special circumstances for which it could be held liable despite the absence of contractual privity. Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer Wood, 170 AD2d 108, 118 (1st Dep't 1991), aff'd, 80 NY2d 377 (1992); Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl Vaccaro, 187 AD2d 384, 385 (1st Dep't 1992); National Westminster Bank v. Weksel, 124 AD2d 144, 147 (1st Dep't 1987).
III. DISPOSITION
Since the evidence raises no factual issues regarding an attorney-client relationship between plaintiff and defendant Jacoby Meyers, her action for legal malpractice against Jacoby Meyers is unsustainable. Therefore the court grants the motion by Jacoby Meyers for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b).