Opinion
Index No. 154971/2017
03-12-2018
JEMIMA OKELLO, individually and as parent and natural guardian of J.N. and R.N., Plaintiffs, v. SCHWARTZAPFEL, P.C., DANIEL POLI, and JOHN DOES 1-3 Defendants.
NYSCEF DOC. NO. 24 Motion Seq: 001 DECISION & ORDER
ARLENE P. BLUTH, JSC
The motion to dismiss by defendants is granted.
Background
This legal malpractice case arises out of defendants' representation of plaintiff Okello ("plaintiff") in connection with her unsuccessful application for Social Security Income and Disability Insurance Benefits (hereinafter, "Social Security benefits"). Plaintiff alleges that she began receiving Social Security benefits in 1999 as a result of suffering from bi-polar disorder, a condition which has caused her to be hospitalized on numerous occasions.
Plaintiff claims that she relied on these benefits and the income of her husband to provide for her family. However, her husband suffered a stroke in 2006 and was subsequently unable to work. He eventually moved back to live with his parents in Zimbabwe, leaving plaintiff to take care of their children. Plaintiff lost her Social Security benefits in 2012 and filed an application to have her benefits reinstated.
When her initial application was denied, plaintiff hired defendants in December 2012 to represent her in an appeal of the denial. Plaintiff claims she told defendants about how dire her financial situation and how much she needed the money to support her family. A hearing date of October 9, 2013 was set for plaintiff's appeal.
Before the hearing, the relationship between plaintiff and defendants deteriorated. Plaintiff contends that defendants were rude and showed a lack of knowledge about her case. Plaintiff fired defendants in June 2013. Defendants told the Social Security Administration (the body hearing plaintiff's appeal) on June 13, 2013 that it no longer represented plaintiff.
Thereafter, on September 4, 2013, defendants filed a request with the Social Security Administration to withdraw plaintiff's appeal and claimed they were doing so with plaintiff's consent. Plaintiff alleges that this letter was sent without her consent. The Social Security Administration subsequently dismissed plaintiff's appeal on September 10, 2013.
On the date of the hearing, October 9, 2013, plaintiff contends that she showed up for the appeal and was shocked when she was told that her case had been dismissed. Plaintiff claims that her mental condition deteriorated after the withdrawal of her appeal and that her husband (still living in Zimbabwe at the time) eventually committed suicide in December 2013. Plaintiff contends that her husband was distraught over the dismissal of plaintiff's claim, which would prevent him from returning to the United States because the family did not have enough money to support him.
Plaintiff contends that she suffered manic episodes in December 2013 and January 2014 both of which required hospitalization. Subsequently, Child Protective Services (acting at the request of plaintiff's sister) investigated and took custody of her children. The children were returned to plaintiff in June 2014.
Plaintiff filed a new application for Social Security benefits, a request which was denied. Plaintiff appealed this denial and, after a hearing before an Administrative Law Judge ("ALJ"), plaintiff was issued a favorable decision which granted her Social Security benefits retroactive to her June 2012 application.
Plaintiff brings seven causes of action against defendants based upon the withdrawal of the appeal: legal malpractice, breach of fiduciary duty, fraudulent misrepresentation, negligent misrepresentation, violation of Judiciary Law § 487, intentional infliction of emotional distress and negligent infliction of emotional distress.
Defendants move to dismiss the complaint on the grounds that all of plaintiff's claims are time-barred, that plaintiff fails to state a cause of action and that plaintiff's minor children lack standing to sue. Defendants also claim, in the alternative, that even if the causes of action are timely, plaintiff fails to state a cause of action because plaintiff ultimately prevailed in receiving Social Security benefits.
Discussion
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We 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 NY2d 83, 87-88, 614 NYS2d 972 [1994] [citations omitted]).
Statute of Limitations & Legal Malpractice
"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 plaintiff to sustain actual and ascertainable damages. To establish causation, 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" (Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]). The statute of limitations for a legal malpractice claim is three years (see CPLR 214[6]).
Defendants argue that the time for plaintiff to file a legal malpractice cause of action began to run in September 2013, when defendants allegedly sent the letter withdrawing plaintiff's appeal. Defendants claim that this case was filed more than 3 years later in May 2017.
In opposition, plaintiff argues that the legal malpractice claim accrued when plaintiff was awarded benefits in March 2017. Plaintiff insists that she could not have brought a legal malpractice claim until she knew whether her second attempt at getting benefits was successful. Plaintiff also claims that the statute of limitations should be tolled both on equitable grounds or on the basis that plaintiff suffered from a legal infirmity.
As an initial matter, the Court finds that the cause of action accrued on September 10, 2013- when the Social Security Administration dismissed plaintiff's case. Although plaintiff claims that she did not find out about the dismissal until she showed up for the hearing on October 9, 2013 "the accrual time is measured from the day an actionable injury occurs even if the aggrieved party is ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it" (McCoy v Feinman, 99 NY2d 295, 301, 755 NYS2d 693 [2002]). Here, the alleged malpractice was on September 10, 2013, the date when plaintiff's appeal was dismissed.
Plaintiff's claim that she did not have a viable cause of action until she was successful in her second attempt to get Social Security benefits is without merit. As stated above, to establish causation on this claim, plaintiff must show that she would have prevailed in the underlying action. Here, that underlying action was dismissed in September 2013. Simply because the Social Security Administration allows a person to file a new request for benefits does not toll the statute of limitations arising from the denial of the first application. There is no reason why plaintiff could not have brought a legal malpractice claim before her subsequent Social Security claim was resolved. A legal malpractice cause of action accrues "from the date of injury caused by the an attorney's malpractice" (id.). Here, that was when the Social Security Administration dismissed plaintiff's application for benefits following defendants withdrawal of plaintiff's appeal, allegedly without her consent. Confirmation that plaintiff eventually won back her benefits certainly would be helpful in proving a legal malpractice case, but it does not change when the statute of limitations began to run.
Because the statute of limitations for this cause of action is three years, the legal malpractice claim (and all of plaintiff's claims with statute of limitations of three years or less) are time-barred unless the Court finds that there is a basis to toll the statute of limitations.
Tolling of the Statute of Limitations
Plaintiff's claim to toll the statute of limitations based on equitable grounds is denied because plaintiff fired defendants (see NYSCEF Doc. No. 7, ¶ 30). While plaintiff was entitled to terminate her attorney, the fact that she did so while her appeal was pending suggests that equitable tolling is not appropriate here.
Plaintiff also claims that the statute of limitations should be tolled because she was unable to protect her legal rights pursuant to CPLR 208. Plaintiff insists that the Court must hold a fact-finding hearing if there is any doubt about plaintiff's mental disability.
Defendants claim that bi-polar disorder should not qualify as a disability sufficient to toll the statute of limitations. Defendants also insist that a hearing is not required because plaintiff has not met her burden to show she was disabled.
CPLR 208 permits the statute of limitations to be tolled if a person "is under a disability because of infancy or insanity at the time the cause of action accrues." CPLR 208 "provides no definition of the term insanity" (McCarthy v Volkswagen of America, Inc., 55 NY2d 543, 547, 450NYS2d 457 [1982] [declining to toll the statute of limitations for a plaintiff who claimed he suffered from post traumatic neurosis]). "[T]olling provisions should not readily be given an expansive interpretation tending to undermine the basis purposed behind the Statutes of Limitation. Indeed, the legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted. When the CPLR was enacted, the Advisory Committee on Practice and Procedure reviewed the possibility of substituting the phrase 'mental illness' for the term 'insanity' contained in the tolling provision. This suggestion was rejected because of the fear that this change might result in unwarranted extensions of time within which to commence an action" (id. at 548). "[W]e believe that the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an overall inability to function in society" (id.).
In McCarthy, a hearing was held to explore plaintiff's mental condition and a psychiatric expert testified about plaintiff's condition (id. at 546). And other courts have held that a hearing may be required to explore factual issues with respect to a plaintiff's mental condition (see e.g., Schulman v Jacobowitz, 19 AD3d 574, 548-49, 797 NYS2d 547 [2d Dept 2005] [holding that the Supreme Court properly ordered that a hearing be held on the issue of plaintiff's mental condition to explore whether it should toll the statute of limitations]; Smith v Kelley, 228 AD2d 831, 832, 643 NYS2d 764 [3d Dept 1996] [holding that defendant was entitled to a fact-finding hearing on the issue of tolling under CPLR 208]; Kelly v Solvay Union Free Sch. Dist., 116 AD2d 1006, 1006, 498 NYS2d 935 [4th Dept 1986] [finding that unless the proof of insanity is conclusive, a defendant is entitled to a hearing to determine the extent of a plaintiff's disability]).
Here, defendants met their initial burden to establish that plaintiff's claims are time-barred. "The burden then shifted to plaintiff to 'aver evidentiary facts' establishing that the case falls within an exception to the statute of limitations" (Rosenfeld v Schlecker, 5 AD3d 461, 461, 772 NYS2d 596 (Mem) [2d Dept 2004] [finding that plaintiff's submission of certified hospital records did not resolve the issue in her favor and remitting the matter for a hearing about tolling the statute of limitations]). Plaintiff's legal malpractice cause of action accrued on September 10, 2013 and this case was brought on May 31, 2017. This means that in order for plaintiff's claims to be timely, she needs the statute of limitations to be tolled until at least May 31, 2014 - a period of over eight months.
In opposition to defendants' motion, plaintiff submitted only a memorandum of law. Plaintiff did not submit an affidavit explaining the severity of her condition during the applicable time period, or an affidavit from a doctor about her mental condition or even any medical records sufficient to toll the statute of limitations long enough to make her claims timely.
Instead, the only factual allegations about plaintiff's mental condition are found in her amended complaint (NYSCEF Doc. No. 7) which plaintiff verified (see NYSCEF Doc. No. 12). Plaintiff alleges that she was hospitalized for a few days in December 2013 after suffering from a manic episode and that after her release, "her inability to function remained unaltered" ((NYSCEF Doc. No. 7, ¶ 45). Petitioner claims she was subsequently hospitalized again for an unspecified amount of time in January 2014 after suffering from another manic episode (id. ¶ 46). On some unspecified date, her children were taken away by Child Protective Services after receiving a warning from petitioner's sister (id. ¶ 47). Petitioner then alleges that "Upon her discharge from the hospital, Ms. Okello was unable to continue paying rent or care for herself on her own, and moved into a family shelter. For the next nearly six months, Ms. Okello received extensive therapy and medical treatment and devoted herself almost exclusively to attempting to heal from the total mental and physical breakdown that occurred in October, 2013 after she learned her Appeal had been withdrawn without her consent" (id. ¶ 48). By June 2014, plaintiff was working with a public assistance attorney and others to get her children back and to reapply for Social Security benefits (id. ¶ 49).
The Court finds that these allegations are not enough to warrant a hearing about tolling the statute of limitation pursuant to CPLR 208. Plaintiff's allegations are simply too vague and not at all specific; there are no issues of fact to be resolved because, as alleged, plaintiff has not claimed that she was unable to function in society for enough time to make her causes of action timely. While hospitalization can, under certain circumstances, toll the statute of limitations (see Schulman, 19 AD3d at 575-77 [finding that plaintiff was entitled to a tolling of the statute of limitations where he was hospitalized for a stroke]), the standard is whether plaintiff was unable to function in society, not whether she was in the hospital. And, assuming plaintiff's allegations are true, plaintiff was hospitalized for a few days in December 2013 and some amount of time in January 2014. Even if the Court were to, hypothetically, find that a fact issue existed with respect to tolling the statute of limitations for these two months, that still leaves more than six months left to make plaintiff's claims timely.
The carefully crafted allegation in the complaint that for "nearly the next six months" petitioner went to therapy and received medical treatment is not sufficient to warrant a hearing especially where it is completely unsupported. Many individuals receive intensive therapy and are able to function in society. While it may not have been necessary for plaintiff to be specific in her verified complaint, it was plaintiff's obligation, in response to defendants' motion to dismiss, to amplify this allegation with evidence about the therapy and medical treatment she received and about her alleged inability to function in society. To be clear, plaintiff need not conclusively prove that she is entitled to toll the statute of limitations in opposition to the motion to dismiss based upon statute of limitations. But she has to raise a factual issue to be entitled to a hearing. And here, when confronted with defendants' motion, she chose not to submit anything other than a memorandum of law, leaving the Court with only the allegations in her amended complaint. Those allegations vaguely refer to her inability to function in society for some unspecified amount of time.
The Court recognizes that plaintiff was seeking Social Security benefits for her mental disability (bi-polar disorder) and that she was eventually awarded benefits retroactive to 2012. However, the definition of disability for the Social Security Administration is not the same as insanity for purposes of tolling the statute of limitations. The Social Security Administration's website defines disability as when a person "must not be able to engage in any substantial gainful activity (SGA) because of a medically-determinable physical or mental impairment(s): that is expected to result in death, or that has lasted or is expected to last for a continuous period of at least 12 months" (Social Security Administration, How Do We Define Disability?, ssa.gov/redbook/eng/definedisability.htm). That definition is clearly not synonymous with an inability to function in society.
Although the Court rejects defendants' claim that bi-polar disorder can never be cited to toll the statute of limitations, the fact is that many individuals with bi-polar disorder are able to function in society. For instance, plaintiff alleges that in June 2014, she successfully regained custody of her children and filed another application for Social Security benefits (NYSCEF Doc. No. 7, ¶ 49). Clearly, those facts demonstrate that plaintiff was able to function in society in June 2014.
Because the Court finds that plaintiff has not met her burden for a hearing with respect to tolling the statute of limitations pursuant to CPLR 208, the Court finds that plaintiff's legal malpractice claim is time-barred and it is severed and dismissed.
Breach of Fiduciary Duty
Plaintiff's claim for breach of a fiduciary duty is dismissed as time-barred because plaintiff seeks money damages arising out of this claim and, therefore, the three-year statute of limitations applies (see Kaufman v Cohen, 307 AD2d 1.13, 760 NYS2d 157 [1st Dept 2003]). And, even if the six-year statute of limitations applies (as plaintiff argues), the breach of a fiduciary duty claim would be dismissed as duplicative, because it is based on the same facts as the legal malpractice claim (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271, 780 NYS2d 593 [1st Dept 2004] ["As to the claim for breach of fiduciary duty, we have consistently held that such a claim, premised on the same facts and seeking the identical relief sought in the legal malpractice cause of action, is redundant and should be dismissed"]). The fact is that both claims rely on the same allegation- that defendants withdrew plaintiff's appeal without her consent. Therefore, the breach of fiduciary duty claim is time-barred and it is severed and dismissed.
Fraudulent Misrepresentation
Plaintiff's claim for fraudulent misrepresentation is dismissed because plaintiff failed to state a cause of action. Plaintiff claims that defendants "falsely represented to Ms. Okello that they had the experience and skill required to prosecute an appeal of a denial of Social Security disability benefits" and "fraudulently represented to Ms. Okello that they would prosecute her Appeal diligently and only act in accordance with her instructions" (NYSCEF Doc. No. 7, ¶ 73, 74).
Those allegations do not support a cause of action for fraudulent misrepresentation where plaintiff fired defendants long before the hearing date on her appeal. Even if defendants made those representations (and even if they were false), defendants were not afforded an opportunity to carry out the appeal. Plaintiff cannot fire her attorneys before the appeal and then state a cause of action alleging that her attorneys did not diligently prosecute her case.
The Court also observes that, in this state, attorneys are not required to have certifications to practice in specific fields- accordingly, plaintiff cannot maintain a cause of action based on the notion that defendants represented that they could handle her claim even though they primarily do personal injury work. Under plaintiff's logic, it would be fraudulent misrepresentation for an attorney to represent that he or she could handle a case if it was that attorney's first case in that field. That makes no sense. Besides, here, as noted, plaintiff never gave defendants a chance to prosecute her claim because she fired them. Therefore, the fraudulent misrepresentation claim is severed and dismissed.
Negligent Misrepresentation
This cause of action is time-barred because it has a three-statute of limitations period (see Colon v Banco Popular N. Am., 59 AD3d 300, 874 NYS2d 44 [1st Dept 2009]), a point acknowledged by plaintiff (NYSCEF Doc. No. 22 at 24-25). Therefore, this cause of action is severed and dismissed .
Judiciary Law § 487Defendants claim that this cause of action is time-barred and plaintiff does not dispute that a three-year statute of limitations applies. Therefore, this cause of action is severed and dismissed (see Benjamin v Allstate Ins. Co., 127 AD3d 1120, 7 NYS3d 550 [2d Dept 2015] [finding that because plaintiff's cause of action alleging a violation of Judiciary Law § 487 was premised on the same facts as the legal malpractice claim, it was barred by the three-year statute of limitations period]).
Intentional Infliction of Emotional Distress
Because the statute of limitations for this cause of action is one year (CPLR 215[3]), this cause of action is time-barred. Therefore, this cause of action is severed and dismissed
Negligent Infliction of Emotional Distress
This cause of action is also severed and dismissed because it is time-barred.
Summary
The Court recognizes that when a plaintiff claims that the statute of limitations should be tolled pursuant to CPLR 208, a hearing is often necessary to explore a plaintiff's mental condition and the time period involved. Here, defendants properly raised the statute of limitations issue in support of their motion to dismiss. After receiving those papers, plaintiff had a chance to show (and to potentially prove) that she was unable to function in society long enough to make her claims timely. But, for some reason, plaintiff decided to submit only a memorandum of law which argues that she is entitled to tolling under CPLR 208 and directs the Court to non-specific allegations in her amended complaint.
As described above, that showing is not enough to warrant a hearing. Plaintiff had to meet her burden to show a genuine factual issue relating to the extent of her alleged disability and the length of time it prevented her from participating in society. Plaintiff is not entitled to hearing simply because she claims that she struggled to deal with her bi-polar disorder at certain times in 2013 and 2014. While a pleading need not contain every specific date, once defendants raised this issue, plaintiff had an obligation to provide some clarity. Unfortunately, plaintiff did not do that here. A hearing on tolling the statute of limitations based on insanity is not automatic just because an amended complaint contains vague, non-specific allegations with respect to the dates. Here, the amended complaint - the only sworn document filed by plaintiff - is not specific enough to warrant a hearing. Because the complaint was not enough, it was plaintiff's obligation to specifically address her claimed insanity in opposition to the motion, which plaintiff wholly failed to do. This Court cannot ascertain exactly when plaintiff claims that her inability to function in society began or ended.
Plaintiff appears to claim in her memorandum of law that the Social Security Administration's finding that she is entitled to Social Security benefits retroactive to 2012 is prima facie evidence that the statute of limitations should be tolled. But, as stated above, the question of whether someone is disabled enough to receive Social Security benefits is distinct from whether a person is entitled to toll the statute of limitations. To receive Social Security benefits, the person must be unable to participate in substantial gainful activity (like working) while the definition of insanity under CPLR 208 requires a much higher standard- the complete inability to function in society. Further, this claim is contradicted by facts alleged in plaintiff's amended complaint- for instance, plaintiff alleges that she regained custody of her children. The fact that Child Protective Services thought that she could take care of her kids shows that she was able to function in society in June 2014, and that she must have proved that to them before that date.
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss is granted.
This is the Decision and Order of the Court. Dated: March 12, 2018
New York, New York
/s/ _________
ARLENE P. BLUTH, JSC