Opinion
104087/08.
Decided March 30, 2009.
On or about May 24, 2007, plaintiff Jimmy Silberberg met with defendant attorney Jay A. Meyers, at defendant's office located at 1688 Victory Boulevard, Staten Island, New York, to discuss Mr. Silberberg's desire to file for Chapter 7 Bankruptcy. On that date Mr. Silberberg signed a retainer agreement for defendant to initiate the bankruptcy petition. The retainer agreement only named plaintiff Jimmy Silberberg as the client, no one else's name appears anywhere on the agreement. In proceeding with the bankruptcy filing defendant asked Mr. Silberberg to compile his financial information and confirm the transfer date of his residence located at 378 Travis Avenue. Mr. Silberberg had previously indicated that he deeded the residence to his wife, plaintiff Helene Silberberg "at least seven years" ago. Defendant requested the deed or confirmation of the transfer date from Mr. Silberberg but he failed to provide a proof and urged defendant to proceed in filing the Chapter 7 Bankruptcy petition. On June 12, 2007, defendant sent plaintiff Jimmy Silberberg a letter titled "Chapter 7 filing implications regarding non debtor spouse." The letter specifically provided that defendant's representation extended only to Jimmy Silberberg and not to his wife, Helene Silberberg. Defendant also specified in the letter that had the house been transferred less than six years ago, a bankruptcy trustee may sue plaintiff Jimmy Silberberg's wife for plaintiff's share of the equity transferred. Plaintiff insisted defendant proceed with the bankruptcy proceeding and on June 21, 2007, defendant filed the petition.
Chapter 7 filing implications regarding non debtor spouse:
"This will serve to confirm that you are aware, you have retained my office in connection with a chapter 7 bankruptcy filing, I have advised you and that retainer states that my representation extends only to you and not to your wife.
I have further advised you to provide a copy of the original deed to your home on Travis Avenue. You and your son have indicated that this house was transferred at least seven years ago and told me to proceed with the case. I have advised you and Jay that in the event that transfer was less than six years ago the trustee may seek to overturn the transfer, or sue your wife for your share of the equity transferred. I indicated that since your home had a lot of equity in it, that your wife could end up having to pay for most or all of your debt to avoid a liquidation of the home.
In response to my admonitions, you indicated that your wife has several hundred thousand dollars in her 401K and could pay if she needed to, further she has not assisted you in your struggle so you do not care what the ramifications of your case may be as to her so long as you receive a discharge in bankruptcy.
I suggested that you contact Mr. Tomei to retrieve a copy of the deed or that you go to the county clerk and get a certified copy. To date you have not done so. Recently, Mr. Tomei's office has advised your son and my office that it has been at least six years.
As I have stated, I think it is ill advised to proceed but since you are facing a garnishment you and your son are insisting that we proceed despite my warnings. This is based on the fact that you have indicated that "you don't care .. so long as the garnishment stops."
Upon receipt of this letter, contact my office to once again promptly to verify that you wish me to proceed [sic]. Once again I am representing you and only you so I await your instructions.
If you have questions about the contents of this letter please call me to discuss same."
Thereafter, on or about October 6, 2007, the Bankruptcy Trustee wrote to Jimmy Silberberg's creditors advising them of potential assets. On November 27, 2008, a complaint was filed against Helene Silberberg alleging that the transfer of the residence was a fraudulent conveyance and the Bankruptcy Trustee sought to recover Jimmy Silberberg's estimated $296,000 equity share of the residence. Plaintiff Jimmy Silberberg then informed defendant that he had retained new counsel to represent him in the bankruptcy proceeding. On or about September 30, 2008, plaintiffs Jimmy and Helene Silberberg commenced this action alleging legal malpractice against defendant. Presently, defendant has brought this motion to dismiss this action on the ground that no evidence of negligence on defendants' part exists.
"On a motion to dismiss a cause of action pursuant to CPLR § 3211 (a)(7), the court must accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom" ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330 , 330 [2d Dept. 2005]; City Line Rent a Car, Inc. v. Alfess Realty , 33 AD3d 835, 835 [2d Dept. 2006]). "If the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed" ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330, 330 [2d Dept. 2005]; General Cas. Ins. Co. v. Kerr Heating Products , 48 AD3d 512 , 514 [2d Dept. 2008]).
To bring a cause of action to recover damages for legal malpractice, plaintiff must show "that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, proximate cause, damages, and that the plaintiff would have been successful in the underlying action had the attorney exercised due care" ( Briggs v. Berkman, 284 AD2d 423, 424 [2d Dept., 2001]; Dimond v. Kazmierczuk McGrath , 15 AD3d 526 , 527 [2d Dept., 2005]; Iannacone v. Weidman, 273 AD2d 275, 276 [2d Dept., 2000]).
The Court notes that plaintiff Jimmy Silberberg has failed to oppose defendant's motion. Therefore, defendant's motion to dismiss Jimmy Silberberg's complaint as against him is hereby granted.
With respect to plaintiff Helene Silberberg's claims, it is well settled that to establish a cause of action for legal malpractice, an attorney client relationship must exist between plaintiff and defendant ( Moran v. Hurst , 32 AD3d 909 , 910 [2d Dept., 2006]; Wei Cheng Chang v. Pi, 288 AD2d 378, 380 [2d Dept., 2001]). In assessing whether an attorney client relationship exists, the court will look to the "words and actions of the parties" ( Moran v. Hurst , 32 AD3d 909 , 911 [2d Dept., 2006]; Nelson v. Kalthara, 48 AD3d 528, 529 [2d Dept., 2008]). "The payment of an attorney's fee by a third party does not, in and of itself, create an attorney-client relationship" ( Moran v. Hurst , 32 AD3d 909 , 910 [2d Dept., 2006]; Nelson v. Kalthara, 48 AD3d 528, 529 [2d Dept., 2008]).
In support of his motion, even providing plaintiff with every favorable inference, defendant has established that the retainer agreement was explicitly between plaintiff Jimmy Silberberg and defendant and that no legal relationship existed between defendant and Helene Silberberg ( Montes Corp. v. Charles Freihofer Baking Co. , 17 AD3d 330 , 330 [2d Dept. 2005]; General Cas. Ins. Co. v. Kerr Heating Products , 48 AD3d 512 , 514 [2d Dept. 2008]). In looking at the words and actions of the parties' it is clear that there is no mention of Helene Silberberg in the retainer agreement and the confirmation letter clearly indicated that defendant's representation will extend only to plaintiff Jimmy Silberberg and not to plaintiff's wife. Further, no evidence is presented at all to indicate that an attorney client relationship existed between defendant and plaintiff Helene Silberberg. Although plaintiff Helene Silberberg had paid a fee to defendant on plaintiff Jimmy Silberberg's behalf, that does not establish an attorney client relationship with defendant ( Nelson v. Kalathara, 48 AD3 528 [2d Dept., 2008][holding that existence of a retainer agreement nor payment of a fee dictates the existence of an attorney client relationship]; Breen v. Law Offices of Bruce A. Barket, P.C. , 52 AD3d 635 , 636 [2d Dept., 2008][finding that where an individual is not in privity with the attorney, no attorney client relationship exists]). As a result, the cause of action for legal malpractice, as pleaded by plaintiff Helene Silberberg, therefore fails and defendant's motion is hereby granted in its entirety.
Accordingly, it is
ORDERED that the defendant Jay A. Meyers' motion to dismiss the complaint is hereby granted, and it is further
ORDERED that the complaint is dismissed in its entirety, and it is further,
ORDERED that the Clerk enter Judgment Accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.