Opinion
101827/10.
September 20, 2010.
DECISION/ ORDER
Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):
Papers Numbered Motion seq #1 Motion $eq #2 Motion seq #3 Motion seq #4
GH n/m (§ 3211) w/RHG affirm, GH, DM, GN, RSM affirms exhs .............. 1 DR opp w/RDR affirm, DR affid, exhs ..................................... 2 GH reply w/RHG affirm ................................................... 3 HHM etc n/m (§ 3211) w/IL affirm, MLH affid, exhs ...................... 4 DR opp w/RDR affirm, DR affid, exhs ..................................... 5 HHM reply w/IL affirm .................................................. 6 Suchoff n/m (§ 3211) w/JHS affirm, exhs ................................. 7 DR opp w/RDR affirm, DR affid, exhs ..................................... 8 Suchoff reply w/JHS affirm .............................................. 9 MH, GH n/m (§ 3211) w/JHS affirm, exhs ................................ 10 DR opp w/RDR affirm, DR affid, exhs .................................... 11 MH, GH reply w/JHS afffirm ............................................ 12 Upon the foregoing papers, the decision and order of the court is as follows:This is an action asserting legal malpractice and fraud claims against defendants, who are lawyers and their law firms. The defendants have separately brought pre-answer motions to dismiss the claims against them pursuant to CPLR 3211 [a] [1], [5] and [7]. Plaintiff, Dolores Reynolds ("Reynolds"), opposes all the motions. Although the defendants have separately moved, their arguments are related and Reynolds' opposition to each motion is similar, if not identical. Therefore, the motions are consolidated for consideration and disposition in this single decision/order.
Since a pre-answer motion to dismiss attacks the sufficiency of the pleadings, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true, and provide the pleader with the benefit of every possible inference (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v. Martinez, 84 NY2d 83; Morone v. Morone, 50 NY2d 481; Beattie v. Brown Wood, 243 AD2d 395 [1st Dept 1997]). Reynolds asserts the following facts in her verified complaint and in her sworn affidavits which are considered by the court for the sole purpose of sustaining the pleading and remedying any deficiencies in it (Ackerman v. Vertical Club Corp., 94 A.D.2d 665 [1st Dept 1983] app dism 60 NY2d 644):
Facts and Arguments Presented
Reynolds claims she sustained personal injuries on November 25, 1998, including a fracture, when she fell in the building where she lived at the time, located at 350 Manhattan Avenue, New York, New York. On December 15, 1998, Reynolds retained the law firm of Ross, Suchoff, Hankin, Maidenbaum, Handwerker Mazel, P.C. ("Ross Suchoff et al") to commence a law suit against the property owner (her landlord). Ross Suchoff et al commenced that action sometime in October 1999 by filing the summons and complaint, which were shortly thereafter served on the defendant (Reynolds v. NY Boyd Corp. and Cape Palmas Develop Corp., Sup Ct., N.Y. Index No. 120928/99) ("personal injury action"). The personal injury action was eventually dismissed, pursuant to CPLR § 3216, for failure to prosecute. A subsequent motion brought by Hankin Handwerker Mazel, PLLC to restore the action to the calendar was denied by Hon. Harold Beeler, for reasons set forth in his order of April 7, 2005 ("Judge Beeler order").
Plaintiff thought her case was active and ongoing. Reynolds contends that none of the attorneys contacted her or told her otherwise. Nonetheless, in May 2008, her daughter ("Chantae") became concerned about her mother's personal injury case and Chantae filed a disciplinary complaint against Ross Suchoff et al on her mother's behalf. The letter refers to the Ross Suchoff et al law firm and states that Chantae had called Ross Suchoff et al "numerous" times. Chantae indicates in her complaint that the file has been with the Ross Suchoff et al firm "since 1998." Chantae states further that she appeared in court with her mother "4 year ago [in] 2004." At that time "the Judge ordered medical records [and] the case was adjourned to another date which never came. No one has been in touch since." She further states that "the last time I called was January 2008" and she was told that the case was old and no one could locate the file.
Although the disciplinary complaint was issued against Ross Suchoff et al, by letter dated August 11, 2008, Hankin Mazel, PLLC answered it ("answer"), stating that Ross Suchoff et al had been dissolved on or about July 1, 2002. The answer, written by Geoffrey Mazel, Esq. ("Mazel"), states that Reynolds was the client of Michael Handerweker, Esq. while he was with the Ross Suchoff et al firm but that Michael Handwerker left the firm to start Hankin, Handwerker Mazel, PLLC in July 2008 and then Goldstein Handwerker, LLP later on.
Mazel also states in his letter/answer that the Reynolds personal injury action was dismissed, he was told, after numerous attempts were made to proceed with an inquest, because certified medical records were unavailable and "it became possible to hold an inquest and obtain judgment." According to Mazel, Michael Handerwerker told him that he had notified Reynolds (and her daughter) about this situation and advised Reynolds to have herself examined by a doctor so the case could proceed to Inquest.
Reynolds denies anyone ever told her there was a problem with her medical records being unavailable or that she needed to set up a doctor's appointment or that the case was set down for inquest. According to Reynolds, it was only after the disciplinary complaint was dismissed that she first learned about, and obtained a copy of, Judge Beeler's order. His order provides as follows:
"This motion by plaintiff to restore this stale action to the court's inquest calendar (even though no note of issue has ever been purchased) is denied. Plaintiff has not offered any explanation or excuse for her repeated defaults including her failure to file her note of issue pursuant to the Judicial Hearing Officer's prder dated 5/21/06 [sic] failure serve the judicial support office for an assessment of damages by a referee pursuant to this court's 10/19/02 order and failure to file her Note of Issue pursuant to this court's 3/14/03 order which ultimately resulted in this court's dismissal of plaintiff's complaint (for failure to prosecute pursuant to CPLR § 3216) by order dated July 11, 2003."
Reynolds' present attorney states that the Affidavit of Merit that Hankin Mazel, PLLC had Reynolds sign in February 2005 in support of the motion to restore was written in such a manner that it was deliberately vague so as to keep Reynolds in the dark about what was going on. The affidavit states that Reynolds' has a meritorious cause claim against the property owner where she fell, but contains none of the other statements contained Mitchell Flachner, Esq.'s supporting affirmation. Reynolds contends this is proof that the defendants deliberately concealed the true facts from her, which is a violation of Judiciary Law § 487.
Defendant Gavin Handwerker, Esq. ("Gavin") denies ever meeting with or talking to Reynolds. He contends he was never a member of the Ross Suchoff et al law firm, but only an associate, fresh out of law school. He claims he left Ross Suchoff et al on December 31, 2000, well before the alleged malpractice occurred and he had no further involvement with Ross Suchoff et al after he left.
According to Gavin, plaintiff's claim accrued on July 11, 2003 when the case was dismissed for failure to prosecute and, therefore, this action is time barred (CPLR § 3211 [a][5]) because Reynolds failed to commence this action by July 11, 2006. Gavin also denies that the doctrine of continuous representation has any applicability to the facts of this case because there was no ongoing attorney/client relationship between him and Reynolds, thus the statute of limitations was not tolled, but expired on July 11, 2006.
Flachner and the law firms of Hankin Handwerker Mazel, PLLC, Hankin Mazel, PLLC, Geoffrey R. Mazel, Mark Hankin and Mitchell Flachner (collectively "HM defendants") are jointly represented. The HM defendants argue that Reynolds' malpractice claim accrued when Judge Beeler denied the motion to restore the personal injury case on April 7, 2005, not when Reynolds learned about Judge Beeler's order, which was allegedly was in September 2008 when Hankin Mazel, PLLC answered the disciplinary complaint. The HM defendants deny any fraud on their part such that would toll the statute of limitations.
The HM defendants also deny that they maintained an ongoing attorney-client relationship with Reynolds or had any contact with her daughter about the personal injury action after Judge Beeler's order of dismissal. While defendants agree that Mark Hankin, Brian Suchoff, and Michael Handwerker were once partners in the Ross Suchoff et al law firm, the HM defendants contend that the Ross Suchoff, et al firm was disbanded in 2002 and, thereafter, Hankin, Handwerker Mazel, PLLC was substituted for Ross Suchoff et al. Since Reynolds was Michael Handwerker's client, he kept the Reynolds personal injury action and it traveled with him to the new firm. After Michael Handwerker withdrew from Hankin, Handwerker Mazel, PLLC in 2008, that firm changed its name to Hankin Mazel. The HM defendants argue that the second cause of action, alleging a violation of Judiciary Law § 487, should be dismissed because Reynolds has not pled it with the required specificity.
Brian Suchoff separately argues that although he was a named partner in Ross Suchoff Hankin Maidenbaum Handwerker Mazel, P.C., before the personal injury action was dismissed, he left that firm to form Ross Suchoff, LLC in May 2002 and he had no contact with Reynolds after that. Brian Suchoff contends that Reynolds has provided no facts to support any claims against him and, like Gavin and the HM defendants, Brian Suchoff contends that the statute of limitations for this case has expired and it was not tolled. He also seeks the dismissal of the claim based upon Judiciary Law § 487, because there are no facts that he engaged in any deceitful acts.
Defendants Goldstein Handwerker and Michael Handwerker (collectively "Michael Handwerker") argue that this case is time barred because plaintiff's claim accrued April 7, 2005 and she did not commenced this action within three years of that date. Michael Handwerker denies there was any attorney-client relationship with Reynolds once the case was dismissed. He also denies any personal liability because he was a shareholder in a professional corporation and then a professional limited liability corporation. Furthermore, like the other defendants, Michael Handwerker denies any fraudulent or deceitful acts by him to support a viable claim under Judiciary Law § 487.
Discussion
Legal Malpractice Claim
A claim for legal malpractice must be commenced within three years of the date when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court, not the date on which it was discovered by the plaintiff (McCoy v. Feinman, 99 N.Y.2d 29). However, under certain circumstances where there is a "mutual understanding of the need for further representation on the specific subject matter," the "doctrine of continuous representation" tolls the running of the statute of limitations until the ongoing representation is completed (Shumsky v. Eisentstein, 96 NY2d 164). This is because someone seeking professional assistance "cannot realistically be expected to question and assess the techniques employed or the manner in which the services are rendered . . ." (Id.) A general relationship with a lawyer involving routine contact for miscellaneous representation "unrelated to the matter upon which the allegations of malpractice are predicated . . ." is insufficient to toll the statute (Id. at 168).
Even accepting Reynolds' facts as true, they do not support a timely claim for legal malpractice against the defendants. Furthermore, her fraud claim based upon violations of Judiciary Law § 487 is not pled with specificity and must be dismissed for that reason.
In her complaint and supporting affidavit, Reynolds only states that she believed the personal injury action was ongoing and no one contacted her to tell her otherwise. She does not claim that she was in contact with any of the lawyers named as defendants, or that she even inquired about the status of her lawsuit. Reynolds' sworn affidavit, is that "I became very frustrated with Defendant' failure to ever provide me with detailed information as to the status of my case and I complained to the Departmental Disciplinary Committee by Letter dated May 9, 2008." That statement is, however, disproved by the complaint letter that her daughter filed.
In that complaint, Chantae states that "the Judge ordered medical records [and] the case was adjourned to another date that never came . . ." Chantae also states that "no one has been in touch since . . ." and that she made "numerous calls to this office [Ross Suchoff et al] . . ." but the file cannot be located.
Assuming that Reynolds' allowed her daughter to followup on her case because, as Chantae states in her disciplinary complaint, her mother was "very sick," it is clear that Reynolds had notice that there was some problem with her personal injury action because the Judge had not proceeded with the Inquest, but asked for the production of medical records which were not available.
Although Chantae made the complaint on behalf of her mother, and Chantae's statements are indirectly used to buttress the compliant, Chantae has not provided her sworn affidavit on this motion. Evidently Reynolds did not personally make any Inquiries about her case, but left it to her daughter who knew that the "the Judge ordered medical records [and] the case was adjourned to another date which never came . . ." Chantae indicates she called the firm in January 2008, but had not been in contact with the firm since. Neither Reynolds nor Chantae indicate they sought any legal advice after the case was dismissed nor did Reynolds ever follow up with the firm after she signed her affidavit in February 2005,
Where a motion to dismiss is based upon the affirmative defense that a claim is time barred, once the defendant establishes that defense, the burden then shifts to the plaintiff to set forth facts establishing that the case is not time barred (Assad v. City of New York, 238 AD2d 456 [2nd Dept 1997] Iv dism 91 NY2d 848). Here, the defendants have established that the personal injury action case was not restored to the calendar by Judge Beeler and it was dismissed on April 7, 2005. All the facts necessary for Reynolds to commence an action for legal malpractice against the defendants (or any one of them) were in place at least by the time that Judge Beeler denied Reynolds' motion to restore, if not sooner. The action at bar was not commenced by Reynolds until February 2010, which more than three years after Judge Beeler's decision.
A professional's failure to take action or provide services necessary to protect a client's interests does not, standing alone, constitute representation or treatment for purposes of tolling the Statute of Limitations, even if the aggrieved party is ignorant of the facts or the injury (McCoy v. Feynman, 99 N.Y.2d 295 internal citations omitted). Reynolds' complaint and her sworn affidavit do not show that she maintained an ongoing attorney/client relationship with any of the defendants after the personal injury action was dismissed. Although she signed an affidavit in February 2005, she did not stay in contact with any of the attorneys.
Chantae's complaint to the disciplinary committee is not a sworn affidavit, but even if it had been, her complaint does not state any facts tending to show that she (or her mother) had anything other than a general relationship with the defendants such that the statute of limitations should be tolled. Reynolds had no contact at all with any of the lawyers after February 2005. Therefore, since the defendants have proved their defense, that this action is time barred and plaintiff has not set forth facts that it is timely, this action must be dismissed as untimely against all the defendants.
Fraud claim
Judiciary Law § 487 provides, in relevant part, that an attorney who is "guilty of deceit or collusion . . ." or "willfully delays his client's suit with a view to his own gain . . ." faces misdemeanor charges and may be answerable to his client for treble damages in a civil lawsuit. Thus, a violation of Judiciary Law § 487 requires, among other things, an act of deceit by an attorney, with intent to deceive the court or any party (Curry v. Dollard, 52 A.D.3d 642 [2nd Dept 2008]).
There are no facts in the complaint to support this very serious claim against any of the defendants. Reynolds' statement, that the attorneys were "deceitful," does not adequately support this claim. Although her sworn affidavit can be considered by the court to remedy any defect in the pleadings, Reynolds simply states that "defendants' conduct has been fraudulent and misleading . . ." That is not a factual statement, but a conclusion of law. Therefore, the defendants' motions for the dismissal of the fraud cause of action is granted as well because the claim is not pled with the requisite specificity (CPLR § 3016 [b]).
Sanctions
Each defendant seeks sanctions against Reynolds on the basis that this action is frivolous within the meaning of Part 130 of the Rules of Court. HM separately seeks sanctions against Reynolds' for having disclosed disciplinary complaint to the court in her opposition papers.
Conduct is frivolous within the meaning of Part 130 if:
"(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false."
Although the court has dismissed the complaint because it is time barred, this does not mean her claims are frivolous. Once her claims were found to be untimely, the court's inquiry ended and the court did not have to weigh the merits of her claim (Assad v. City of New York, 238 AD2d 456 [2nd Dept 1997] Iv dism 91 NY2d 848). In any event, on a motion to dismiss, plaintiffs claims are viewed broadly and the issue is whether the plaintiff has a cause of action, not whether she has properly pled one. Defendants have not shown that this action is frivolous warranting the imposition of sanction. Therefore, that branch of each of their motions is denied.
The court has separately considered whether sanctions should be imposed because Reynolds divulged the disciplinary complaint her daughter filed against the firm of Ross Suchoff et al which is being defended by Mazel, Hankin and the other HM defendants. Judiciary Law § 90 provides that "all papers, records and documents . . . upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential . . ." only to be disclosed "upon good cause being shown . . ." by the justices of the appellate division "by written order . . ." (In re Aretakis, 16 A.D.3d 899 [3rd Dept 2005]). This is, on the one hand, to protect the complainant against reprisal and on the other the protect the reputation of the accused (In re Aretakis, supra).
Even assuming the disclosure of the disciplinary complaint is actionable, dismissal of the complaint as a sanction is not the correct remedy. Although the court has dismissed the complaint, it did so because it was untimely, not as a sanction. Since HM's request for sanctions based upon the disclosure of the disciplinary action is first raised in its reply, it must be denied because it is not properly before the court and did not give Reynolds an opportunity to defend against the claims. The court also notes that defendants have not acted to seal this file. The denial is, however, without prejudice to HM (or any other defendant) bringing a motion for more appropriate relief tailored to address the wrong alleged.
Conclusion
In accordance with the foregoing,
It is hereby ORDERED that the motions by the defendants for the preanswer dismissal of this action because it is untimely is hereby granted for the reasons stated; and it is further
ORDERED that the motions for sanctions are denied for the reasons stated as well; and it is further
ORDERED that the clerk shall enter judgment in favor of defendants Ross, Suchoff, Hankin, Maidenbaum, Handwerker Mazel, P.C., Hankin, Handwerker Mazel, PLLC, Hankin Mazel, PLLC, Goldstein Handwerker, LLP, Geoffrey R. Mazel, Mark Hankin, Michael Handwerker, and Mitchell Flachner against plaintiff Delores Reynolds dismissing the complaint and this action, with costs and disbursements as taxed by the court; and it is further
ORDERED that any relief requested not expressly addressed is hereby denied; and it is further
ORDERED that his constitutes the decision and order of the court.