Opinion
009962/10.
Decided July 11, 2011.
Speyer Perlberg, Marie E. Garelle, Esq., Melville, New York, Counsel for the Plaintiff.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, James K. Baden, Esq., White Plains, New York, Counsel for the Defendant.
Upon the foregoing papers, the Defendant, Murray S. Atttie, (hereinafter Attie) moves for the following relief: an order pursuant to CPLR § 3211 (a) (5), and CPLR § 214 (6), seeking the dismissal of the Plaintiff's claims predicated upon legal malpractice; and for an order pursuant to CPLR § 3211 (a) (7), seeking the dismissal of the Plaintiff's claims, for failure to state a cause of action. The Plaintiff, Eileen B. Pollan, cross-moves for an order directing the Defendant to release legal documents in relation to the matter pending in the Supreme Court, entitled Eileen Pollan v. Gary M. Orkin and Scott R. Orkin, bearing Index No. 16099/2000. The motion and cross-motion are determined as hereinafter provided.
By stipulation dated, October 18, 2010, with the exception of those arguments posited in opposition to the defendant's instant application, the request for affirmative relief contained in the plaintiff's cross-motion has been withdrawn.
As adduced from the Verified Complaint, on or about May 12, 2000, the Plaintiff was involved in an automobile accident in which she suffered personal injuries ( see Baden Affirmation in Support at Exhibit A at ¶ 5). As a result, the Plaintiff retained Mark Howard Feldman, Esq. to recover monetary damages on her behalf ( id.). On or about October 13, 2000, Mr. Feldman commenced an action in the Nassau County Supreme Court entitled "Eileen B. Pollan v. Gary M. Orkin and Scott R. Orkin, bearing Index No. 16099/2000 ( id. at ¶ 6). Subsequently on or about April 17, 2002, Mr. Feldman entered into a stipulation whereby the parties agreed to submit the personal injury action to "[b]inding Hi-Lo Arbitration with parameters of $15,000 — $90,000" ( id. at ¶¶ 9, 10; see also Exhibit B). Thereafter, Mr. Feldman allegedly informed the Plaintiff that the arbitration had been adjourned until January 7, 2003 ( id. at ¶ 11). Several months later, said arbitration had apparently not yet occurred, and on July 8, 2003 Mr. Feldman allegedly advised the Plaintiff as to the actions which would be taken "in preparation" therefor ( id. at ¶ 11, 12). The Plaintiff claims that subsequent thereto, Mr. Feldman "failed and refused to respond to [her] efforts to communicate with him" ( id. at ¶ 14).
On or about May 17, 2004, in accordance with CPLR § 3404, the Plaintiff's personal injury action was dismissed based upon failure to prosecute ( id. at ¶ 14; see also Exhibit C). The Plaintiff alleges she was never informed thereof and in or about August of 2005, retained the services of the Defendant, Murray S. Attie, to represent her interests with respect thereto ( id. at ¶¶ 15, 16). On August 16, 2007, the Defendant, Attie, allegedly informed the Plaintiff that the arbitration would occur "soon" ( id. at ¶ 19). The Plaintiff claims that on November 24, 2009, the Defendant, Attie, ultimately informed her that the personal injury action had been dismissed and on December 21, 2009 advised her "that he would move to have the underlying action restored" ( id. at ¶¶ 22, 24).
On March 9, 2010, the Defendant, Attie, purportedly advised the Plaintiff that he had yet to submit a motion to restore the personal injury action because he was "too busy" ( id. at ¶ 26). On the same day, the Plaintiff "submitted a written request to the Defendant, Attie, to provide her with the name of both his and Mr. Feldman's liability insurance carriers on or before March 30, 2010 for the purpose of submitting a claim to those carriers" ( id. at ¶ 27). The Plaintiff alleges that she never received a response to said requests and "[o]n or about April 15, 2010, the Defendant, Attie, sought to discourage [her] from seeking relief against him by advising the Plaintiff that she had not commenced an action against him within the applicable statute of limitations" ( id. at ¶ 29).
As a result of the foregoing, the Plaintiff commenced the underlying action, which contains five causes of action, the First and Second of which sound in legal malpractice, the Third and Fourth of which allege sounding in breach of contract, and the Fifth of which, predicated upon a violation of Judiciary Law § 487. The Defendant's within dismissal application interposed pursuant to CPLR § 3211 (a) (5), CPLR § 214 (6) and CPLR § 3211 (a) (7), thereafter ensued.
With particular respect to an application predicated upon CPLR § 3211 (a) (7), the complaint is to be liberally construed and the plaintiff afforded every favorable inference which may be drawn therefrom ( Leon v. Martinez, 84 NY2d 83). The facts as alleged are to be accepted as true, although bare legal conclusions, in addition to factual assertions which are squarely contradicted by the record, are not entitled to any such consideration ( Doria v. Masucci, 230 AD2d 764 [2d Dept. 1996]; Mayer v. Sanders, 264 AD2d 827 [2d Dept. 1999]).
The Plaintiff's First and Second causes of action each sound in 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 [the] plaintiff to sustain actual and ascertainable damages". ( Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer , 8 NY3d 438 quoting McCoy v. Feinman, 99 NY2d 295at 301-302; Rosenstrauss v. Jacobs Jacobs , 56 AD3d 453 [2d Dept. 2008]).
With particular respect to the First cause of action, the Plaintiff alleges that due to the Defendant, Attie's, malpractice, she "was caused to lose her right to recover" in the personal injury action ( see Verified Complaint at ¶ 38). However, inasmuch as that action has proceeded to arbitration, which resulted in the Plaintiff receiving an award in connection thereto, the allegations contained in the within complaint are plainly contradicted by the record ( Doria v. Masucci, 230 AD2d 764 [2d Dept. 1996], supra; Mayer v. Sanders, 264 AD2d 827 [2d Dept. 1999], supra). Moreover, given the Plaintiff's arbitration award, the Plaintiff has suffered no damages proximately caused by the Defendant's purported malpractice ( Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer , 8 NY3d 438 , supra).
Accordingly, the First cause of action is hereby DISMISSED.
In the Second cause of action, the Plaintiff particularly alleges that her original attorney, Mr. Feldman, committed legal malpractice in failing to prevent the personal injury action from being dismissed and that the Defendant, Attie, in failing to timely inform her thereof, is himself guilty of legal malpractice, which she claims "caused to lose her right to any recovery against Feldman" ( see Verified Complaintat ¶ 45). As noted above, the Plaintiff ultimately recovered in connection with the very action in which Mr. Feldman served as her original counsel. Thus, even had the Plaintiff commenced suit against Mr. Feldman, as she suffered no ascertainable damages proximately caused by his alleged malpractice, such an action could not have been maintained ( Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer , 8 NY3d 438 , Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer , 8 NY3d 438 , supra).
Accordingly, the Second cause of action of the Plaintiff's complaint is hereby DISMISSED.
The Third and Fourth causes of action contained in the within complaint are each predicated upon breach of contract. As to the Third cause of action, the Plaintiff alleges that the Defendant, Attie, acted in contravention of the terms of the retainer agreement by "failing to file a motion to restore the Underlying Action within a reasonable time after its dismissal, and such failure to act rendered plaintiff forever barred from seeking recovery against the tortfeasors in the Underlying Action"( see Verified Complaintat ¶ 49). With respect to the Fourth cause of action, the Plaintiff alleges that the Defendant, Attie, breached the terms of the retainer agreement "in failing to advise plaintiff of her potential claim for malpractice against her former attorney * * * and [that] failure * * * renders plaintiff forever barred from seeking redress against Feldman" ( id. at ¶ 53).
As the allegations set forth in the Third and Fourth causes of action are duplicative of those contained the First and Second causes of action and arise out of the identical facts and circumstances attendant thereto, the Third and Fourth causes of action are hereby DISMISSED. ( Shaya B. Pacific, LLC v. Wison, Elser, Moskowitz. Edelman Dicker, LLP , 38 AD3d 34 [2d Dept. 2006]; Shivers v. Siegel , 11 AD3d 447 [2d Dept. 2004]).
Finally, the Plaintiff's Fifth cause predicated upon a violation of Judiciary Law § 487, which provides the following in relevant part: [a]n attorney or counselor who * * * [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party * * * [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."
In the instant matter, with regard to the Fifth cause of action, the Plaintiff alleges that "[d]efendant is guilty of deceit or collusion, or consented to deceit or collusion, with the intent to deceive the plaintiff" ( see Verified Complaint at ¶ 57). In pleading the Fifth cause of action, other than re-alleging the factual allegations set forth in connection to the other four causes of action contained in the complaint, the Plaintiff merely reiterates the statutory language embodied in Judiciary Law § 487 (1). Moreover, the factual allegations which comprise the first four causes of actions recite various purported failures on behalf of the Defendant, which even if accepted as true, are in the nature of professional negligence ( Rudolf v. Shayne, Dachs, Stanisci, Corker Sauer , 8 NY3d 438 , supra). Nowhere in the complaint do said allegations recite any actions undertaken by the defendant, which were predicated upon his intent to purposely deceive the Plaintiff (Judiciary Law § 487 (1)).
see Verified Complaint at ¶¶ 56, 57.
According, the Fifth cause of action of the Plaintiff's complaint is hereby DISMISSED.
This constitutes the Decision and Order of the Court.