Opinion
INDEX NO.: 17736/2015
10-11-2019
CARLOS RIVERA, Plaintiff, v. PATRICK MICHAEL KERR, ESQ., THE SALLAH LAW FIRM, DONALD R. SALLAH, ESQ., WILLIAM MICHAEL SULLIVAN and LONG TUMINELLO BELLO SELIGMAN WERNER & SULLIVAN fka LONG TUMINELLO BESSO SELIGMAN & QUINLAN nka LONG TUMINELLO, P.C. Defendants.
PLTFS' ATTORNEY: JUDITH L. POWELL, P.C. 29 Jericho Turnpike Jericho, New York 11753 DEFTS KERR, THE SALLAH LAW FIRM & SALLAH'S ATTORNEY: DEAN J. SALLAH, ESQ. 110 Washington Avenue Holtsville, New York 11742 DEFTS SULLIVAN and LONG, TUMINELLO, PC's ATTORNEY: MICHELLE AULIVOLA, ESQ. 120 Fourth Avenue Bay Shore, New York 11706 DEFT PRO SE: ROBERT DEL COL, ESQ. 120 Fourth Avenue Bay Shore, New York 11706
COPY
ORIGINAL
SHORT FORM ORDER
PRESENT: Hon. Sanford Neil Berland , A.J.S.C. ORIG. RETURN DATE: January 26, 2017
FINAL RETURN DATE: June 12, 2018
MOT. SEQ. #: 003 MG ORIG. RETURN DATE: December 21, 2017
FINAL RETURN DATE: June 12, 2018
MOT. SEQ.#: 004 MG ORIG. RETURN DATE: April 16, 2018
FINAL RETURN DATE: June 12, 2018
MOT. SEQ.#: 005 MG ORIG. RETURN DATE: May 1, 2018
FINAL RETURN DATE: June 12, 2018
MOT. SEQ.#: 006 MD PLTFS' ATTORNEY:
JUDITH L. POWELL, P.C.
29 Jericho Turnpike
Jericho, New York 11753 DEFTS KERR , THE SALLAH LAW FIRM
& SALLAH'S ATTORNEY:
DEAN J. SALLAH, ESQ.
110 Washington Avenue
Holtsville, New York 11742 DEFTS SULLIVAN and LONG , TUMINELLO, PC's
ATTORNEY:
MICHELLE AULIVOLA, ESQ.
120 Fourth Avenue
Bay Shore, New York 11706 DEFT PRO SE:
ROBERT DEL COL, ESQ.
120 Fourth Avenue
Bay Shore, New York 11706
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendants William Michael Sullivan and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C. dated December 29, 2016, and supporting papers; (2) Affidavit in Opposition by plaintiff dated March 7, 2017, and supporting papers; (3) Reply Affidavit by defendants William Michael Sullivan and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C. dated March 20, 2017; (4) Notice of Motion by defendants Patrick Michael Kerr, Esq., The Sallah Law Firm, and Donald R. Sallah, Esq. dated November 20, 2017, and supporting papers; (5) Affidavit in Opposition by plaintiff dated January 16, 2018, and supporting papers; (6) Affidavit in Reply by defendants Patrick Michael Kerr, Esq., The Sallah Law Firm, and Donald R. Sallah, Esq. dated February 13, 2018; (7) Notice of Motion by defendant pro se Robert Del Col dated March 30, 2018, and supporting papers; (8) Affidavit in Opposition to Plaintiff's Cross-Motion and in Support of Motion to Dismiss dated June 11, 2018; (9) Notice of Motion by plaintiff dated April 23, 2018, and supporting papers; (10) Affidavit in Opposition by defendants William Michael Sullivan and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C. dated May 17, 2018; and (11) Affidavit in Opposition by defendants Patrick Michael Kerr, Esq., The Sallah Law Firm, and Donald R. Sallah, Esq. dated May 9, 2018, it is
ORDERED that plaintiff's cross-motion to change venue pursuant to CPLR § 510[2] is denied; and it is further
ORDERED that the motion (seq. #003) by defendants William Michael Sullivan and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long, Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C., the motion (seq. #004) by defendants Patrick Michael Kerr, Esq., The Sallah Law Firm, and Donald R. Sallah, Esq., the motion (seq#005) by defendant pro se Robert Del Col, Esq. and the motion (seq. #006) by plaintiff are consolidated for this determination; and it is further
ORDERED that defendants William Michael Sullivan and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long, Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C.'s motion for dismissal of the complaint against them pursuant to CPLR §§ 3212 and 3211, is granted, and it is further
ORDERED that defendants Patrick Michael Kerr, Esq., The Sallah Law Firm, and Donald R. Sallah, Esq.'s motion for summary judgment pursuant to CPLR § 3212 is granted, and it is further
ORDERED that defendant pro se Robert Del Col, Esq.'s motion to dismiss the complaint against him pursuant to CPLR § 3215[c] is granted.
The current action alleges legal malpractice in connection with, among other things, the handling of a prior action concerning and a contempt proceeding arising from the Settlement Agreement and Amendment to Separation Agreement (individually, the "Settlement Agreement" and the "Amendment"; together, the "Amended Settlement Agreement") and the Judgment of Divorce that resolved the matrimonial action between plaintiff and his former wife. Plaintiff alleges that he retained the defendants to bring and prosecute a plenary action challenging the Amended Settlement Agreement as defective and unenforceable and to defend him in the contempt proceedings that were brought against him for allegedly violating the Amended Settlement Agreement. The result of those contempt proceedings, which were conducted in Family Court, was that plaintiff was found to have willfully failed to pay court-ordered child support and maintenance to his ex-wife and was sentenced to serve six months of incarceration, and plaintiff now claims that the defendants committed legal malpractice by failing to challenge the validity of the Amended Settlement Agreement. For their part, defendants maintain that the Amended Settlement Agreement was not defective; that even if it was, plaintiff, as a matter of law, could not have been saved from being held in contempt; and that the complaint is otherwise without merit.
The matter is now before the court on the motion of defendant pro se Robert Del Col, Esq. ("Del Col") to dismiss the complaint against him for plaintiff's failure to move for a default judgment within one year of Del Col's failure to answer plaintiff's complaint, and on the motions of the remaining defendants either for summary judgment alone (defendants Patrick Michael Kerr, Esq. ("Kerr"), and The Sallah Law Firm and Donald R. Sallah (together, "Sallah") or, alternatively, for summary judgment or to dismiss the complaint for failure to state a cause of action against them and for summary judgment (defendants William Michael Sullivan ("Sullivan") and Long, Tuminello, Bello, Seligman, Werner & Sullivan, fka Long, Tuminello, Besso, Seligman & Quinlan, nka Long, Tuminello, P.C. ("Long Tuminello"). Plaintiff cross-moves to change the venue of the action.
Factual and Procedural Background:
The following is undisputed: the Settlement Agreement between plaintiff and his now ex-wife, Kathryn Rivera, dated March 9, 2009, was incorporated by reference into a Judgment of Divorce dated January 12, 2011. The fully-executed Amendment to Separation Agreement between plaintiff and Kathryn Rivera dated September 22, 2010 was filed but not incorporated by reference in the Judgment of Divorce. At the time that these documents were generated, executed and filed, the parties were represented by counsel unrelated to those named as defendants in the current action. The Amendment amended Article 24 of the original Settlement Agreement to include language mandated by DRL § 240 [1-b][h] and FCA § 413[1][h], together known as the New York Child Support Standards Act ("CSSA"), which had not been included in the original Agreement. The Amended Settlement Agreement did not alter the amount of child support and maintenance that plaintiff was required to pay.
In 2012, Kathryn Rivera petitioned the Family Court to hold plaintiff in contempt for willfully failing to pay child support and maintenance pursuant to the Settlement Agreement between the parties. Plaintiff cross-moved in that proceeding to enforce the Settlement Agreement and to modify it to reduce the amount of support he was required to pay. On January 14, 2013, plaintiff retained The Sallah Law Firm to commence a plenary action to challenge the Settlement Agreement ("the plenary action") and to defend plaintiff in Family Court in the contempt proceeding brought against him by his ex-wife. In January 2013, The Sallah Law Firm commenced the plenary action in Supreme Court and made a motion to stay the support proceedings in Family Court. The motion to stay the support proceeding was denied, and The Sallah Law Firm defended plaintiff in a two-day willfulness hearing held before Support Magistrate Barbara Lynaugh on January 22 and January 23, 2013. In an order dated March 26, 2013, Magistrate Lynaugh denied plaintiff's motion to reduce his support obligations and held plaintiff in contempt, finding that plaintiff had willfully failed to pay child support and maintenance totaling $148,573.51. In the order, Magistrate Lynaugh referred the matter to a judge of the Family Court with a recommendation of incarceration with a substantial purge provision. On April 26, 2013, plaintiff discharged The Sallah Law Firm and retained defendant Long Tuminello to represent him in the plenary action that had been commenced by The Sallah Law Firm. In an Order of Commitment dated May 21, 2013, Family Court Judge Martha Luft directed that plaintiff be incarcerated for six months. The order contained a $74,000 purge provision.
On June 3, 2013, defendant Sullivan, a partner in the Long Tuminello law firm, requested a Preliminary Conference in the plenary action. The application was granted, and on June 15, 2013, Sullivan sent an email to plaintiff advising him that a preliminary conference would be held in the plenary action in July 2013. Plaintiff sent a responding email in which he directed that Long Tuminello "hold off on doing any further work" and to "put the case on hold," indicating that plaintiff was concerned about cost and was "exploring other avenues." On June 28, 2013, plaintiff retained defendant Del Col to represent him in the plenary action and to file and prosecute a writ of habeas corpus regarding the contempt finding in Family Court. Del Col filed the writ. On July 18, 2013, Del Col appeared for the plaintiff at the preliminary conference held in the plenary action. On October 10, 2013, Kathryn Rivera filed a motion to dismiss the plenary action for failure to state a cause of action. Del Col did not interpose an answer to the motion, and in an order dated May 29, 2014, the court dismissed the plenary action, holding, inter alia, that plaintiff was estopped from seeking to set aside the Settlement Agreement in question as he had, by order to show cause in September 2012, sought both to enforce the agreement and to modify it.
Defendant served the sentence imposed upon him by the Family Court. On October 8, 2015, he commenced the current action by filing a Summons With Notice, and on November 18, 2015, he filed the Verified Complaint. Seven Suffolk County justices, including Justice Luft, were randomly assigned to preside over plaintiff's action and recused themselves before the matter was assigned to the undersigned.
Motion to change venue:
Plaintiff cross-moves to change the venue of this action to another county. Plaintiff contends that he cannot receive a fair trial of his claims in Suffolk County because the judge who presides over plaintiff's case will have to determine whether the Suffolk County magistrate who presided over the contempt hearing and the Suffolk County judge who signed the Order of Commitment "sent a man to jail with no basis to do so." Plaintiff argues that it will be impossible to find a judge in Suffolk County who could be fair and impartial given these circumstances. Plaintiff points to the seven judicial recusals in plaintiff's action as evidence supporting his argument.
CPLR § 510[2] states in pertinent part: "The court, upon motion, may change the place of trial of an action where there is reason to believe that an impartial trial cannot be had in the proper county." Where, as here, there is no contention that the action has been commenced in an improper county, the motion must be made "within a reasonable time after commencement of the action" (CPLR 511[a]), and the moving papers must demonstrate "a strong possibility" that an impartial trial cannot be had ( DeBolt v Barbosa , 280 AD2d 821, 822-24, 720 NYS2d 283, 283-285 [3d Dept 2001]). Changing venue to avoid an appearance of impropriety is a matter of the court's discretion (see Saxe v OB/GYN Assocs . PC , 86 NY2d 820, 633 NYS2d 471 [1995]). "Conclusory allegations, beliefs, suspicions and feelings of possible bias are inadequate [to demonstrate a strong possibility that an impartial trial cannot be obtained] ( Behrins v Behrins , P.C. v Chan , 40 AD3d 560, 833 NYS2d 399 [2d Dept 2007]; see also Cohen v Bernstein , 9 AD3d 573, 574, 780 NYS2d 646 [3d Dept 2004]; Locker v 670 Apts . Corp., 232 AD2d 176, 647 NYS2d 519 [1st Dept 1996]; Krupka v County of Westchester , 160 AD2d 681, 553, NYS2d 777 [2d Dept 1990]; Thomas v Small , 121 AD2d 622, 504 NYS2d 132 [2d Dept 1986]; Clausi v Hudson Cement Co., 26 AD2d 872, 873, 273 NYS2d 906 [3d Dept 1966]; Fishman v Fishman , 20 AD2d 941, 248 NYS2d 916 [3d Dept 1964]).
Plaintiff has proffered nothing more than his bare assertion that because, in his view, in order for him to "win," the judge in this action "is going to have to say" that the Support Magistrate and the Family Court Judge in the underlying proceeding baselessly held him in contempt and committed him to jail, no Suffolk County judge could be impartial in presiding over this action. That assertion, however, is inadequate to support the relief he is seeking. First, the predicate upon which it relies is faulty: his claims in this action turn on what he alleges were deficiencies in the representation he received from the defendant attorneys and law firms and the harm he claims he suffered as a result of those alleged deficiencies; thus, the element of proximate cause is not jurally different here than in any other action in which legal malpractice in the handling of a litigated matter is alleged and the plaintiff must prove, inter alia, that but for the allegedly deficient representation provided by the defendant, "he or she would have prevailed in the underlying action or would not have incurred any damages" ( Rudolf v Shayne , Dachs , Stanisci , Corker & Sauer , 8 NY3d 438, 442 [2007]). Plaintiff's claims neither require nor permit a collateral challenge in this action to the findings made and penalties meted out in the underlying proceedings; to the extent he seeks such relief, he must seek it elsewhere. Second, even if such determinations were potentially in prospect in this action, that, standing alone, would not be sufficient to demonstrate bias or a lack of impartiality mandating that the action be transferred to another county (see generally Behrins v Behrins , P.C. v Chan , supra; Cohen v Bernstein , supra). Moreover, the mere fact that several judges, including the judge who issued the order of commitment in this matter, have chosen to recuse themselves does not support the conclusion that plaintiff seeks to draw, that no judge in Suffolk County could be fair in this matter. For these reasons, the court finds that plaintiff has failed to meet his burden of demonstrating a strong possibility that an impartial trial of his action cannot be had in Suffolk County. Accordingly, plaintiff's cross-motion to change venue is denied.
Motions for summary judgment:
Defendants William Michael Sullivan, Esq. ("Sullivan") and Long Tuminello (together, "the Long Tuminello defendants") move for dismissal of the complaint against them pursuant to CPLR 3211 or, alternatively, for summary judgment pursuant to CPLR 3212 (seq.#003). They contend that in the few weeks that they represented plaintiff they: (1) investigated, unsuccessfully, the ways, if any, in which the Settlement Agreement could be found to be in violation of the CSSA; (2) attempted to settle the plenary action commenced on plaintiff's behalf by The Sallah Law Firm; and (3) requested that a preliminary conference be held in the plenary action. In an affidavit offered in support of the motion, Sullivan avers that he consulted with several experienced matrimonial attorneys at the Long Tuminello firm to determine whether plaintiff had a viable basis to challenge the Settlement Agreement, including whether the Agreement complied with the CSSA that he, as soon as he received notice of the date set for the preliminary conference, emailed plaintiff to so inform him and received, in response, an email from plaintiff directing that no further work be done on the case "at this moment" and advising, among other things, that "We [sic] are exploring other avenues to take and are still uncertain of our [sic] path . . . ." The Long Tuminello defendants contend that the complaint against them should be dismissed because they were not in any way negligent and, insofar as they did not represent plaintiff in the support proceedings that led to plaintiff's incarceration and had been replaced by another law firm before any meaningful proceedings had taken place in the plenary action, any conduct on their part could not have been the proximate cause of plaintiff's alleged damages. In support of their motion, the Long Tuminello defendants proffer, in addition to Sullivan's affidavit, the pleadings; the order dismissing the plenary action against Kathryn Rivera dated May 20, 2014; the Order of Dismissal of plaintiff's petition to modify the support provisions in the Settlement Agreement; Orders and Findings of Fact in the Family Court Support Proceedings dated March 26, 2013; the Request for Preliminary Conference in the plenary action; and the Preliminary Conference Order in the plenary action.
Defendants Patrick M. Kerr, Esq. ("Kerr"), Donald R. Sallah, Esq. ("Sallah") and The Sallah Law Firm (together, "the Sallah defendants") move for summary judgment pursuant to CPLR 3212 (seq. #004). In affidavits by Kerr and Sallah, they contend that with respect to the plenary action, they filed and served a summons and complaint and, after receiving an answer to the complaint that contained a counterclaim, served an answer to the counterclaim, and that with respect to the support proceedings, they made a motion by order to show cause to stay the support proceedings, which was denied, and defended plaintiff at the willfulness hearing. They maintain that they competently defended plaintiff at that hearing by undertaking to show that plaintiff was unable to comply with the support order through no fault of his own and presented evidence to support that showing. Defendant Kerr states in an affidavit that he presented evidence at the support proceeding to the effect that plaintiff had suffered a reduction in income due to plaintiff's depression and related hospitalizations, as well as a conversion to a computerized reporting system in plaintiff's medical practice for vaccinations that plaintiff was required to make. In support of their motion, the Sallah defendants proffer, inter alia, the transcript of the willfulness hearing, as well as the Findings of Fact made by the Support Magistrate. The Support Magistrate found that "in stark contrast to the bleak financial picture he attempted to present, [plaintiff] freely admitted that he pays all of his expenses, including his personal expenses, out of his business. . . . [Plaintiff] admitted that he used his business account to pay for expenses for his girlfriend's children and improvements on his girlfriend's home." The magistrate found that plaintiff had the ability to meet his obligations under the relevant support provisions, but chose to disregard them, choosing instead to pay his own personal expenses while allowing the electricity, heat and water in the home in which his four children resided to be turned off for non-payment and causing the mortgage on the home to go into foreclosure. The Support Magistrate found "by clear and convincing evidence that [plaintiff] willfully failed to obey the order of the Supreme Court" and referred the matter to a Judge of the Family Court with a recommendation for incarceration with a substantial purge provision.
Plaintiff claims that the child support provisions of the Amended Settlement Agreement are defective and violative of the requirements of CSSA in that the basic child support obligation stated is incorrect; it is not recited that the calculations of child support result in the presumptively correct amount of support; nonmandatory educational expenses are coupled with mandatory childcare expenses, giving the impression that educational expenses are mandatory; certain other calculations are incorrect or not properly explained; the reasons for the parties' agreement to deviate from the statutory basic child support obligation are not set forth with adequate specificity; and the Child Support Worksheet dated September 24, 2010 was not annexed to the Agreement in the clerk's file and plaintiff had never seen it. In addition, plaintiff argues that because the Amendment is not referenced in the Judgment of Divorce, its terms were not reduced to a court order. On these bases, plaintiff contends that the Amended Settlement Agreement is not enforceable and that the Sallah defendants were negligent in allowing the various instruments to be admitted into evidence at the willfulness hearing without objection and in failing otherwise to defend plaintiff in the Family Court by challenging the Amended Settlement Agreement.
The Sallah defendants, through, among other things, affidavits of Sallah and Kerr, maintain that they were unable to find a viable basis to challenge the Amended Settlement Agreement and that it does comply with the CSSA, in that the Amendment specifically recites that the parties were affirmatively advised of the provisions of the CSSA and states the presumptively correct support obligation of the noncustodial parent by calculating the basic child support obligation using the parties' then-combined parental income under (and over) the statutory cap of $130,000, while the Settlement Agreement specifically states, as required by statute, both the tact of and reason for the parties' deviation from the support guidelines. The Sallah defendants also proffer an affidavit by William Sweeney, Jr., an attorney who has been practicing primarily in the area of matrimonial and family law for twenty-two years, who opines that the Amended Settlement Agreement meets all the recitation requirements of the CSSA.
The Sallah defendants contend that the complaint against them should be dismissed because (1) the Amended Settlement Agreement comports with the dictates of the CSSA and was consequently enforceable; (2) assuming arguendo that the Settlement Agreement was not enforceable, the Support Magistrate presiding over the support proceedings was entitled - in fact, required - to go forward with the willfulness hearing as a matter of law; and (3) defendants were discharged before any court conferences or discovery proceedings had taken place in the plenary action. Defendants allege that there was no deviation on their part from acceptable legal practice and that their actions were not the proximate cause of plaintiff's incarceration or of any of the loss or damage plaintiff claims. In addition, defendants note that although Donald R. Sallah is named in the caption and service list of the summons in this action, he is not named in the caption of the complaint nor are any claims or allegations made against him individually in the body of the complaint. Defendants therefore argue that the complaint should be dismissed against Donald R. Sallah. In support of their motion, the Sallah defendants proffer, inter alia, the pleadings; the Kerr and Sallah affidavits; the Judgment of Divorce; the Settlement Agreement and the Amendment; a transcript of the hearing held in Family Court on January 22 and 23, 2013; the Orders of Disposition and Findings of Fact in the Family Court support proceedings; the Consent to Change Attorney in the plenary action and the order dismissing the plenary action, dated May 29, 2014; statements for a bank account held in plaintiff's name; and the Sweeney affidavit.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]; see Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (See Roth v Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).
A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community; (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff; and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action ( Cummings v Donovan , 36 AD3d 648, 648, 828 NYS2d 475 [2d Dept 2007], citing Simmons v Edelstein , 32 AD3d 464, 820 NYS2d 614 [2d Dept 2006]; see also Mendoza v Schlossman , 87 AD2d 606, 606-607, 448 NYS2d 45 [2d Dept 1982]; Kozmol v Law Firm of Allen L. Rothenberg , 241 AD2d 484, 485, 660 NYS2d 63 [2d Dept 1997]; Iannarone v Gramer , 256 AD2d 443, 444, 682 NYS2d 84 [2d Dept 1998]) or "would not have incurred any damages" ( Rudolf v Shayne , Dachs , Stanisci , Corker & Sauer , supra, 8 NY3d at 442). Failure to establish that actual damages sustained by the plaintiff were the proximate cause of an attorney's alleged malpractice requires dismissal, regardless of whether the defendant's negligence is established ( Pelligrino v File , 291 AD2d 60, 63, 738 NYS2d 320 [1st Dept 2002]; Simmons v Edelstein , supra at 466, citing Brooks v Lewin , 21 AD3d 731, 734, 800 NYS2d 695 [1st Dept 2005]). To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of those essential elements ( Dimond v Kazmierczuk & McGrath , 15 AD3d 526, 527, 790 NYS2d 219 [2d Dept 2005]; citing Ostriker v Taylor , Atkins & Ostrow , 258 AD2d 572, 685 NYS2d 470 [2d Dept 1999]).
As discussed at length above, the gravamen of plaintiff's complaint against the moving defendants is that they allegedly committed legal malpractice by failing to challenge the Amended Settlement Agreement as defective and unenforceable under the CSSA in both the contempt proceedings and in the plenary action brought on behalf of the plaintiff. Plaintiff contends that if defendants had taken appropriate measures to bring the purported defects in the Amended Settlement Agreement to light, plaintiff would not have been compelled to participate in a willfulness hearing, held in contempt and consequently incarcerated. Plaintiff alleges that as a result of his incarceration, he suffered financial reverses which led to the loss of his pediatric medical practice, loss of professional good will, loss of future income, and mental anguish.
"Domestic Relations Law § 240[1-b][h] requires that any agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties' stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties' reason or reasons for deviating from the CSSA calculation, if they chose to deviate" ( Pellerito v Pellerito , 148 AD3d 1040, 1040-1041, 50 NYS3d 418 [2d Dept 2017]; citing Cimons v Cimons , 53 AD3d 125, 127, 861 NYS2d 88 [2d Dept 2008]; Bright v Freeman , 24 AD3d 586, 587, 808 NYS2d 359 [2d Dept 2005]).
Not every defect in the child support provisions of a separation agreement will void these provisions. In order to determine whether a defect is so substantial as to warrant the invalidation of the agreement, the court should consider whether the agreement substantially complied with the statutory requirements of the CSSA, and whether the party who is complaining about the defect was misled into signing the agreement by the failure of the agreement accurately to set forth the statutory requirements ( Blaikie v Mortner , 274 AD2d 95, 713 NYS2d 148 [1st Dept 2000]). It has been held that a child support agreement is not rendered defective because the actual calculations used to reach the results are not set out in the agreement ( Bright v Freeman , supra) or contain mathematical errors ( Chalk v Chalk , 74 AD3d 1118, 903 NYS2d 510 [2d Dept 2010]). A child support agreement that was freely and knowingly entered into by the parties to it will not be invalidated because it does not contain the precise phrasing of the protective statutory acknowledgments of the CSSA (see Margaret C . v Paul F.C., 73 AD3d 567, 899 NYS2d 848 [1st Dept 2010]; Rockitter v Rockitter , 113 AD3d 745, 978 NYS2d 371 [2d Dept 2014]; Colucci v Colucci , 54 AD3d 710, 864 NYS2d 67 [2d Dept 2008]; Dorosky v Herald , 52 AD3d 829, 861 NYS2d 124 [2d Dept 2008]). The Amended Settlement Agreement herein does contain the statutory acknowledgments of the CSSA.
"The payor may raise the failure of the child support provisions of a stipulation to comply with Domestic Relations Law § 240 [1-b] in a cross-motion to an enforcement proceeding brought by a payee, or the payor may commence a plenary action seeking vacatur or reformation of said provisions" ( BJG v MDG , 29 Misc3d 670, 673, 908 NYS2d 324 [Sup Ct Nassau County 2010]; see Barany v Barany , 71 AD3d 613, 614, 898 NYS2d 146 [2d Dept 2010], citing Christian v Christian , 42 NY2d 63, 72, 396 NYS2d 817 [1977]). A payor who successfully seeks vacatur of such provisions by cross-motion to an enforcement proceeding is entitled to relief only as of the date of service of the cross-motion ( BJG v MDG , supra at 673, citing Luisi v Luisi , 6 AD3d 398, 775 NYS2d 331 [2d Dept 2004]). A payor who seeks vacatur of the child support provisions contained in a stipulation of settlement but not merged into a judgment of divorce retroactive to the date of the execution of the stipulation of settlement can obtain such relief only by means of a plenary action ( BJG v MDG , supra at 673, citing Barany v Barany , supra; see Lepe v Rodriguez , 73 AD3d 710, 710, 899 NYS2d 856 [2d Dept 2010]; Brody v Brody , 82 AD3d 812, 918 NYS2d 383 [2d Dept 2011]). The mere commencement of such a plenary action does not preclude enforcement of the payor's child support obligations during the pendency of the plenary action ( BJG v MDG , supra at 673).
Pursuant to the Family Court Act, for purposes of an enforcement proceeding, evidence of a respondent's failure to pay child support as ordered constitutes prima facie evidence of a willful violation (FCA § 454[3][a]; Torres v Moran , 143 AD3d 730, 732, 38 NYS3d 603 [2d Dept 2016]; Matter of McMinn v Taylor , 118 AD3d 887, 888, 988 NYS2d 247 [2d Dept 2014]; Matter of Powers v Powers , 86 NY2d 63, 69, 629 NYS2d 984 [1995]). Once this showing has been made, the burden shifts to the respondent to present competent, credible evidence of his or her financial inability to comply with the child support order (FCA § 455[5]; see Torres v Moran , supra at 732; Matter of Powers v Powers , supra at 69-70; Matter of Yuen v Sindhwani , 137 AD3d 1155, 1156, 28 NYS3d 102 [2d Dept 2016]).
Defendants have established prima facie entitlement to summary judgment as a matter of law. Based on defendants' respective submissions, the following was established: (1) The subject Settlement Agreement substantially complied with the statutory requirements of the CSSA and plaintiff freely and knowingly entered this agreement. Therefore, the choice by the Sallah defendants not to challenge the Agreement or object to its admission into evidence at the enforcement hearing was not, contrary to plaintiff's contention, negligent. (2) Assuming, arguendo, that the support provisions in the agreement were defective, whether the Sallah defendants had cross-moved in the enforcement proceeding or brought a plenary action to vacate the provisions, the enforcement proceeding would not have been precluded from going forward. (3) The terms of the Amendment are enforceable even though the Amendment was not explicitly incorporated by reference in the Judgment of Divorce (see BJG v MDG , supra; Barany v Barany , supra, Lepe v Rodriguez , supra, Brody v Brody , supra). (4) The Sallah defendants interposed an appropriate defense on plaintiff's behalf at the enforcement hearing. (5) The finding that plaintiff was able but chose not to pay his support obligations was the cause of the unfavorable result in the support proceeding, which resulted in his incarceration and related alleged damages. (6) The Long Tuminello defendants were not retained by plaintiff until after plaintiff was found in contempt in the Family Court support proceeding, and they were directed by plaintiff to take no further action on behalf of plaintiff before any court proceedings or discovery had taken place in the plenary action. Defendants have therefore made a prima facie showing that the defendants exercised that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community; that even in the absence of the conduct that plaintiff contends constituted negligence on the part of the defendants, plaintiff would not have been successful in the underlying action and proceedings; and that defendants' respective actions were not the proximate cause of the alleged damages sustained by plaintiff.
It now falls to plaintiff, in response, to show that there are one or more material issues of fact that require trial and preclude the entry of summary judgment. Plaintiff has not, however, raised any material questions of fact in opposition to defendants' motions. Rather, plaintiff's opposition centers on questioning the efficacy of defendants' acts or failures to act. Further, plaintiff has not at all addressed the prong of the Sallah defendants' motion that is based upon the absence of any allegation against defendant Donald R. Sallah in the complaint or any reference to him in that pleading's caption. Accordingly, the motions for summary judgment made by the Sallah defendants and the Long Tuminello defendants, respectively, are granted. Motion to Dismiss Pursuant to CPLR 3215[c]:
Defendant pro se Robert Del Col, Esq. ("Del Col") is moving to dismiss the complaint against him (seq. #005) as abandoned pursuant to CPLR 3215[c]. Plaintiff commenced this action by filing a summons with notice dated October 8, 2015. Del Col served a Notice of Appearance dated October 26, 2015 upon plaintiff with a demand that a complaint be served upon his office. Plaintiff served a Verified Complaint dated November 18, 2015 on all defendants. Del Col never answered the complaint.
Plaintiff contends that his complaint against Del Col is meritorious and never abandoned. He asserts that the fact that he defended a motion interposed by the Sallah defendants which was later withdrawn and served Del Col with opposing documents and judicial recusal orders related to plaintiff's action constitutes evidence that he had not abandoned his claims against Del Col. He offers as excuses for his delay in seeking a default judgment against Del Col that plaintiff had filed for bankruptcy and was unsure until the discharge in September 2017 whether the current lawsuit would be considered part of the bankruptcy estate, and that he was suffering from post-traumatic stress syndrome as a result of his incarceration as well as fear induced by a series of judicial recusals in this case that rendered him incapable of handling the stress of making an application to a Suffolk County judge for a default judgment against Del Col.
When a plaintiff fails to seek leave to enter a default judgment within one year after a default has occurred, the action is deemed abandoned (see CPLR 3215[c]); Geraghty v Elmhurst Hosp. Ctr. of N.Y. City Health & Hosps., Corp., 305 AD2d 634, 759 NYS2d 888 [2d Dept 2003]). To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment and demonstrate that the complaint is meritorious ( Kay Waterproofing Corp. v Ray Realty Fulton , Inc., 23 AD3d 624, 804 NYS2d 815 [2d Dept 2005]; HSBC Bank USA , Nat. Ass'n v Grella , 145 AD3d 669, 671,44 NYS3d 56 [2d Dept 2016]; Aurora Loan Services , LLC v Hiyo , 130 AD3d 763, 13 NYS3d 554 [2d Dept 2015]; Pipinias v J. Sackaris & Sons , Inc., 116 AD3d 749, 751, 983 NYS2d 587 [2d Dept 2014]; Giglio v NTIMP , Inc., 86 AD3d 301, 308, 926 NYS2d 546 [2d Dept 2011]). "The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court" ( Pipinias v J. Sackaris & Sons , Inc., supra at 752, quoting Giglio v NTIMP , Inc., 86 AD3d 301, 308, 926 NYS2d 546 [2d Dept 2011]); see Staples v Jeff Hunt Devs ., Inc., 56 AD3d 454, 460, 866 NYS2d 756 [2d Dept 2008]; Costello v Reilly , 36 AD3d 581, 581, 828 NYS2d 172 [2d Dept 2008]; Ewart v Maimonides Med. Ctr., 239 AD2d 543, 544, 657 NYS2d 210 [2d Dept 1947].
Plaintiff's claims against Del Col essentially mirror those he has asserted against the other defendants and, for the same reasons those defendants are entitled to summary judgment, plaintiff's claims against Del Col cannot be considered meritorious. Furthermore, plaintiff has failed to explain why litigation with non-defaulting defendants excuses his failure timely to seek a default judgment against Del Col (see Private Capital Group , LLC v Hosseinipour , 170 AD3d 909, 911, 95 NYS3d 585 [2d Dept 2019]). Nor do plaintiff's concerns with respect to his bankruptcy proceeding provide a reasonable excuse for that failure (see Pipinias v J. Sackaris & Sons , Inc., supra). Finally, insofar as plaintiff was represented by counsel, his assertion that he could not tolerate the stress of making the application for a default judgment is not reasonable. Accordingly, defendant pro se Robert Del Col's motion to dismiss the complaint as against him pursuant to CPLR 3215[c] is granted.
The foregoing constitutes the decision and order of the court. Dated: 10/11/2019
Riverhead, New York
/s/ _________
HON. SANFORD NEIL BERLAND, A.J.S.C.