Opinion
Index No. 156072/2013
01-18-2024
MADELYNE LOPEZ, as Executor of the Estate of ALBA MORALES, Plaintiff, v. PASTERNACK, TILKER, ZIEGLER, WALSH, STANTON & ROMANO, LLP, and MATTHEW ALLEN FUNK. ESQ., Defendants.
UNPUBLISHED OPINION
Mot. Date: 12/6/2023
At IAS Part 99 of the Supreme Court of the State of New York. Kings County, on theday of Jan 18, 2024
DECISION/ ORDER
Richard J. Montelione, Judge
The following papers were read on this motion pursuant to CPLR 2219(a):
Papers
Numbered
Defendants' Motion to Dismiss, dated July 6, 2023; Attorney Affirmation of David S. Wilck, affirmed on July 6, 2023; Exhibits A-I; Memorandum of Law in Support..
3-15
Plaintiffs Attorney Affirmation of Adam Zahary in Opposition, affirmed on October 24,2023; Memorandum of Law in Opposition..
17-18
Attorney Affirmation of David. S, Wilck in Reply, affirmed on November 7.2023.
19
Plaintiff Madelyne Lopez, as Executor of the Estate of Alba Morales, commenced this action on May 17, 2023 alleging legal malpractice, negligence, breach of contract, breach of fiduciary-duty, and negligent supervision of employee. Plaintiff alleges that defendants' failure to properly secure Ms. Morales' settlement in connection to her Workers' Compensation Claim constitutes legal malpractice. Defendants move to dismiss the complaint in lieu of an answer pursuant to CPLR § 3211(a)(1) and (7).
Legal Standards
"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, 'conclusively establishing a defense as a matter of law[.]'" Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 588, 979 N.Y.S.2d 84, 87 (2d Dep't 2014). "On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory].]" Breytman v. OlinviUe Realty, LLC, 54 A.D.3d 703, 704, 864 N.Y.S.2d 70 (2d Dep't 2008).
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to. exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damagesf.]" Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.O., 205 A.D.3d 714, 716, 169 N.Y.S, 3d 90, 92-93 (2d Dep't 2022). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action .. . [and] dismissal is warranted where the allegations in the complaint are merely conclusory and speculative" Id.:, see also Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592, 598 (2d Dep't 2012).
Facts and Legal Analysis
On or about February 11, 2014, Decedent Alba Morales hired defendant Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP ("the Pasternack Finn") to represent her in connection with her Workers' Compensation claims. Defendant Matthew Funk, Esq. was the primary attorney handling her case. The complaint alleges that the Pasternack Firm and defendant Funk held themselves out to be experts in the field of Workers' Compensation claims.
Ms. Morarles' Workers' Compensation claims against her former employer Graphnet, Inc. arose out of her September 2001 work-related injuries and/or illness. Ms. Morales was employed by Graphnet, Inc. in September 2001 to clean debris and ashes in buildings near the World Trade Center in the wake of the September 11, 2001 attacks, Consequently, Ms. Morales developed gastroesophageal reflux disease ("GERD") and interstitial lung disease.
On February 26, 2014, defendants filed a Workers' Compensation claims on Ms. Morales' behal f. F rom Dec ember 2, 2015 to Dec ember 5, 2017, Ms. Morales received inden mi ty payments from her employer's insurance carrier for her lost wages due to her work-related injury' and disability. On August 14, 2017, Ms. Morales accepted a $60,000.00 settlement offer for the indemnity portion of her Workers' Compensation claim for lost wages. On or about January 28, 2019, Ms. Morales Was offered a settlement of $175,000.00 for the medical portion of her claim, which would resolve and discontinue any future medical benefits Ms. Morales was receiving through her Workers' Compensation claim, Ms. Morales accepted the settlement by signing a Settlement Agreement and a Waiver Agreement (collectively, "Section 32 Agreement") on April 8, 2019. Defendant Funk also signed the Section 32 Agreement on the Pasternack's Firm's behalf.
Plaintiff contends that the waiver section of the Section 32 Agreement contained instructions and listed required documents necessary to finalize the Agreement, including an approval letter from the World Trade Center Health Program Administrator and the National Institute for Occupation Safety and Health (the "Letter"), Defendants submitted the Section 32 Agreement to the Workers' Compensation Board on April 15, 2019. A Workers' Compensation hearing Was held on July 22, 2019 before Judge Schwartz. Judge Schwartz disapproved the Settlement without prejudice to return the case to the calendar once Ms. Morales obtained the requisite Letter from the World Trade Center Health Program ("WTCHP"). Ms, Morales passed away on July 30, 2020 due to her work-related illness. Plaintiff states in the complaint that, upon Ms. Morales' death, she "was no longer eligible to receive compensation for the Section 32 Agreement, as she was no longer receiving medical care."
The complaint alleges that defendants' failure to obtain the Letter and finalize the settlement prior to Ms. Morales' death constituted a deviation from the good and accepted standards of legal practice in litigating Ms. Morales' Workers' Compensation Claim. However, the record shows that defendants made numerous attempts to obtain the Letter from the WTCHP. Oh the day of the hearing, July 22, 2019, Fischer Brothers, Esqs. the firm representing Graph net, Inc, and theif insurance company, expeditiously sent a letter to the WTCHP requesting the Letter and sent a copy of said request to defendants (NYSCEF #8). Defendants followed up with Fischer Brothers, Esqs. via email on October 18, 2019, inquiring as to status of the letter (NYSCEF #9). An attorney from Fischer Brothers, Esqs. and an attorney from the Pasternack's Firm, Rochelle Jean-Baptiste ("Mr. Jean-Baptiste"), confirmed via email that they would attempt to call the WTCHP regarding the Letter (NYSCEF #9).
On December 16, 2019, Mr. Jean-Baptiste of the Pastemack Firm sent an email to the WTCHP requesting the Letter and asking if any additional information was required (NYSCEF #10). On March 5, 2020, Mr. Jean- Baptiste followed up again with Fischer Brothers, Esqs. via email, stating, "I have yet to receive anything from WCTHP to settle this case. It has been months of emailing and calling. Do you have any news on your end?" In response, Amy Levitt from Fischer Brothers, Esqs. followed up with the WTCHP via email on April 22, 2020, and copied Mr. Jean-Baptiste of the Pasternack Firm on said email (NYSCEF #12). Finally, on July 30. 2020, defendant Funk sent an email to the WTCHP to discuss the Section 32 Agreement and requesting someone from WTCHP contact defendants.
Accordingly, the court finds that although the factual allegations within the complaint are accepted as true, the additional undisputed facts regarding the efforts of the defendants to obtain the Letter and finalize the settlement, does not state a cause of action for legal malpractice. See Mid-Hudson Vol. Fed. Credit Union v Quartararo & Lois, PLLC, 155 A Did 1218,1219, 64 N.Y.S.3d 389, 2017 NY Slip Op 07916, 2, 2017 WL 5179080 [3d Dept 2017], affd. 31 N.Y.3d 1090, 103 N.E.3d 774, 78 N.Y.S.3d 703, 2018 NY Slip Op 04034, 2018 WL 2724969 [2018]:
When assessing a pre-answer motion to dismiss for failure to state a cause of action, we accept the allegations in the complaint as true and accord the plaintiff every favorable inference (see Goshen v Mutual Life Ins. Co. of N.Y, 98 N.Y.2d, 314, 326 [2002]; Maki v Travelers Cos., Inc., 145 A.D.3d 1228, 1230 [2016], appeal dismissed 29 N.Y.3d 943 [2017]; T. Lemme Mech., Inc. v Schalmont Cent, School Dist., 52 A.D.3d 1006, 1008 [2008]). Such favorable treatment, however, 'is not limitless' (Tenney v Hodgson Russ, LLP, 97 A.D.3d 1089, 1090 [2012]). Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss (see Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]; New York State Workers' Compensation Bd. v Program Risk Mgt Inc., 150 A.D.3d 1589, 1592 [2017]; Rddriguez v Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185 [2015], Iv denied 25 N.Y.3d 9l2 [2015]). 'Dismissal of the: complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery' (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 [2017] [citations omitted]).
There were at least six inquiries regarding the Letter and the settlement which were sent to WCTHP from July 2019 to July 2020. While plaintiff alleges that defendants "errors and omissions" caused Ms. Morales' alleged damages, plaintiff does not allege what defendants should have done or failed to do that would have produced said Letter. Plaintiff claims that defendants failed to provide the Letter, but it was never in their possession ahd defendants had no control over whether WCTHP issued the letter. Moreover, plaintiff failed to address defendants' numerous efforts to obtain the Letter and failed to allege that the attempts were so lacking that it constituted legal malpractice. In this context, the complaint fails to state a claim for legal malpractice, Marinelli v. Sullivan Papain Block McGrath & Cannayo, P.C., supra.
The complaint also alleges that, but for defendants' negligence, the settlement would have been approved by Judge Schwartz and Ms. Morales could have reasonably anticipated obtaining the $175,000.00 settlement funds. Plaintiff states that defendants' negligence deprived Ms. Morales of the opportunity to collect the settlement funds, However, the disapproval letter from Justice Schwartz states:
At the Workers Compensation hearing held on 07/22/2019 involving the claim of Alba Morales, Judge Lisa Schwartz DISAPPROVED the Section 32 agreement for the following reasons:
DECISION This ruling is without prejudice to the rights of the parties to return the case to the calendar on the same agreement when claimant is able to proceed.
Agreement does not contain World Trade Center Health Program WTCHP letter. No further action is planned by the Board at this time.
There is no evidence that Judge Schwartz approved the settlement of Si 75.000.00 subject to obtaining the WTCHP letter. The letter states that the settlement hearing would proceed once the Letter was obtained. As defendants point but, there are other basis for a Workers' Compensation Board settlement to be denied pursuant to WCL § 32(b)(1) and (2). There is no evidence in the record that that determinations were made as to the considerations in WCL § 32(b)(1) and (2). Plaintiff's contention that the Section 32 Agreement would have been approved had the letter been provided rests on speculation as to how Judge Schwartz would have responded to the hearing. This speculative conclusion fails to meet the pleading requirement to demonstrate proximate cause and actual, ascertainable damages. See Bua, 99 A.D.3d at 848, 952 N.Y.S.2d at 598. This action, by its nature, is limited to the loss of an opportunity to finalize a settlement as plaintiff cannot sue for future medical expenses because of her death.
Accordingly, accepting the allegations in the complaint as true, and the additional facts by undisputed documentary evidence of the attempts to obtain the Letter, plaintiff fails to state a cause of action for legal malpractice as there are no facts that show that defendants did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that their breach proximately caused the settlement to not be finalized, and that Ms. Morales' damages were actual and ascertainable. Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., supra.
Plaintiffs other causes of action, negligence, breach of contract, breach of fiduciary duty, and negligent supervision of employee, are similarly based on defendants' failure to obtain and submit the Letter, and their failure to finalize the settlement and are subsumed under the action for legal malpractice.
Based on the foregoing, it is
ORDERED that defendant Pasternack, Tilker, Ziegler, Walsh, Stanton &Romano, LLP and defendant Matthew Alien Funk, Esq.'s Motion to Dismiss is GRANTED in its entirety and the complaint is dismissed.
All other requests for r elief not addressed herein are denied.
This constitutes the decision and order of the court.