Opinion
DOCKET NO. A-3978-13T1 DOCKET NO. A-4209-13T1
03-17-2016
STANLEY STAHL, Plaintiff-Appellant, v. STAHL AND DeLAURENTIS, P.C. and ARTHUR DiPADOVA and KULZER AND DiPADOVA, P.A., Defendants-Respondents. STANLEY STAHL, Plaintiff, v. STAHL AND DeLAURENTIS, P.C., Defendant-Appellant, and ARTHUR DiPADOVA and KULZER AND DiPADOVA, P.A., Defendants-Respondents.
Justin T. Loughry argued the cause for appellant Stanley Stahl (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, of counsel and on the briefs). Sean P. Whalen argued the cause for respondent/appellant Stahl & DeLaurentis, P.C. (Klehr Harrison Harvey Branzburg, LLP, attorneys; Mr. Whalen, of counsel and on the briefs). Candidus K. Dougherty argued the cause for respondents Arthur DiPadova and Kulzer & DiPadova, P.A. (Swartz Campbell, LLC, attorneys; Jeffrey B. McCarron and Ms. Dougherty, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-759-12. Justin T. Loughry argued the cause for appellant Stanley Stahl (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, of counsel and on the briefs). Sean P. Whalen argued the cause for respondent/appellant Stahl & DeLaurentis, P.C. (Klehr Harrison Harvey Branzburg, LLP, attorneys; Mr. Whalen, of counsel and on the briefs). Candidus K. Dougherty argued the cause for respondents Arthur DiPadova and Kulzer & DiPadova, P.A. (Swartz Campbell, LLC, attorneys; Jeffrey B. McCarron and Ms. Dougherty, of counsel and on the briefs). PER CURIAM
In these back-to-back appeals, consolidated for the purpose of this opinion, plaintiff Stanley Stahl appeals from the summary judgment dismissal of his claim for breach of contract against his former firm, defendant Stahl & DeLaurentis, P.C. (the firm) and dismissal of his professional negligence claims against defendants Arthur A. DiPadova and Kulzer and DiPadova, P.A. (collectively, DiPadova defendants). The related appeal defensively filed by the firm is from the summary judgment dismissal of its claims against the DiPadova defendants for indemnification and contribution in the event the firm is determined liable.
Plaintiff Stanley Stahl did not participate in A-4209-13.
In 2008, plaintiff, who was an 88% owner of the firm, withdrew from full-time employment, changing his title to "of counsel." Plaintiff retained the DiPadova defendants to prepare documents to effectuate his change in status and buyout of his interest in the firm. On January 30, 2009, on behalf of himself, individually, and the firm, plaintiff executed an employment agreement (the Agreement), drafted by the DiPadova defendants.
When he did not receive contributions as a participant in the "Stahl & DeLaurentis, P.C. 401(k) Profit Sharing Plan" (401(k) plan), plaintiff filed this action claiming the firm breached the Agreement. Alternatively, plaintiff sought judgment against the DiPadova defendants regarding the preparation of the Agreement, if it were found the terms failed to include a provision for payment of an annual 401(k) plan contribution. Plaintiff, the firm, and DiPadova all cross-moved for summary judgment. Plaintiff moved for summary judgment against the firm, seeking contributions from the 401(k) plan for the six-year period of the Agreement. The firm's summary judgment motion requested dismissal because plaintiff, although a permissible participant, did not meet the 401(k) plan requirements for payment of benefits. The DiPadova defendants requested summary judgment dismissal asserting inclusion of 401(k) plan payments was never raised, or, in the alternative, even if the Agreement included said benefits, plaintiff was not legally eligible to receive contributions. The DiPadova defendants also sought dismissal of the crossclaims filed against them by the firm asserting the firm's liability for payment, if any, was not related to the drafting of the Agreement.
Following our review, we affirm the summary judgment dismissal of plaintiff's claims for breach of contract against the firm along with the dismissal of the firm's related claims for indemnification and contribution against the DiPadova defendants. However, we reverse the order dismissing plaintiff's complaint arguing as to the DiPadova defendants, finding material factual disputes obviate summary judgment.
I.
Plaintiff, as the founding partner, 88% owner, and president of the firm, worked as a full-time employee until 2008. As remuneration he received salary and benefits, which included participation in the firm sponsored 401(k) plan. Plaintiff was instrumental in initiating the 401(k) plan's creation and was named a plan trustee when it was formed in 1999.
On September 21, 2009, the original 401(k) plan was amended to remove plaintiff as trustee following the transfer of his ownership interest in the firm and his cessation from full-time employment. The terms and conditions at issue here were not altered.
The plan, which was offered to all qualifying firm employees, provided a 401(k) deferral component, permitting participating employees "to defer a portion of their salary to the [p]lan." Plaintiff never participated in this plan option.
A second part of the 401(k) plan provided a profit sharing component, which allowed the firm, as the employer, "in its discretion, to provide what are known as 'profit sharing contributions' (also known as 'nonelective contributions' . . .) to the [p]lan each year and to allocate such profit sharing contributions among [p]lan participants." Contributions were made annually with amounts dependent on the number of qualified plan participants, individual qualified participant's elections, the discretionary profit sharing amount, and the applicable federal contribution limits. Generally, participation required an annual completion of 1000 hours of service. Importantly, the 401(k) plan includes specific definitions, including "employee," "highly compensated participant," "hour of service," "participant," and "year of service." The plan document, as well as the summary plan description, also made clear the sponsor's intention for the plan to qualify as a deferred compensation plan permitted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001 to 1461, and under the Internal Revenue Code, 26 U.S.C.A. §§ 1 to 9834. The complaint and opposition focus on plaintiff's right to participate in the annual contributions of this plan component.
Plaintiff decided to retire from the daily practice of law and relinquish his ownership interest in the firm by selling his 88% interest. In June 2008, he engaged the DiPadova defendants to prepare documents to effectuate this transaction. The provisions of the Agreement establish the firm's desire to employ plaintiff for a six-year period "to render legal and management advice and consulting services on a part-time basis" and offer part-time consulting services to "be made at such places and times as may be agreed between the parties" with compensation defined as $265,000 per year for five years and $65,000 in the final year.
The section delineating plaintiff's salary also provides for "fringe benefits," stating:
(b) Fringe Benefits.
(i) General. It is the expectation of the parties that EMPLOYEE and EMPLOYEE'S spouse will be provided with the same
kind and level of benefits as they enjoyed when EMPLOYEE was a full-time employee of EMPLOYER which shall include, but not be limited to, the items enumerated below.
(ii) Medical Expenses and Medical Insurance.
. . . .
(iii) Long-Term [Insurance] Care.
. . . .
(c) Professional Expenses.
A separate section provided for payment of plaintiff's professional malpractice and general liability insurance, and included him on the firm's disability insurance policy.Employer shall pay directly, or by reimbursement upon the presentation of an itemized accounting, the following expenses:
(i) New Jersey Bar License fees and assessment, all Bar Association dues . . . .
(ii) . . . cellular telephone services for himself and his spouse . . . .
(iii) . . . [reimbursement] for the costs of EMPLOYEE'S attendance at Continuing Legal Education meetings or seminars.
(iv) . . . accounting/tax preparation and accounting services, legal services and gym membership, and an American Express Platinum card.
The parties agree the DiPadova defendants did not negotiate the terms of the Agreement, rather plaintiff related the terms and conditions to be included. However, the facts surrounding the instructions and specific information plaintiff communicated to the DiPadova defendants regarding the drafting of the Agreement were disputed. A file memorandum prepared by the DiPadova defendants matched the language used in the Agreement. Specifically, after listing specific benefits, the memorandum stated the listed benefits were "not necessarily the exclusive list" and noted plaintiff's expectation to receive all benefits "he previously enjoyed as a shareholder." There is no explicit mention of the 401(k) plan. However, plaintiff presented notes he used when meeting with the DiPadova defendants to discuss the Agreement, which included a reference to the salary amount during the six-year "of counsel" arrangement and the notation "thru [sic] payroll as other 'employees' w/ pension contrib)."
Further, the extent of any negotiations between plaintiff and the firm is not clear from this record. Plaintiff executed the Agreement not only on behalf of the firm as its President, but also as the named employee. He read the agreement prior to its execution and admitted he "knew the pension benefit was not listed by name." Dominic DeLaurentis witnessed plaintiff's signature as Secretary of the firm.
When he did not receive 401(k) plan payments following 2009, plaintiff requested payment as a benefit provided to him under the Agreement. The firm declined his requests. Plaintiff made additional written demands for payment. They too were declined.
Plaintiff filed his complaint alleging breach of contract and breach of the duty of good faith and fair dealing against the firm in February 2012. The complaint also included a professional negligence claim against the DiPadova defendants.
At the close of discovery, the DiPadova defendants moved for summary judgment. Thereafter, the firm filed for summary judgment and plaintiff filed a cross-motion for summary judgment. Plaintiff asserted 401(k) plan payments were due and owing as the "kind and level of benefits" he had received during full-time employment, even though they were not expressly enumerated in the Agreement. The firm maintained plaintiff "spent very little time performing work for [the firm], logging very few billable hours" after executing the employment agreement, rendering him ineligible for 401(k) plan payments. Plaintiff generally disputed this, contending he provided availability and recalled two matters he worked on, for hours totaling "in the single digits or teens." However, plaintiff agreed he did not work 1000 hours in any calendar year since 2009 and admitted he "did not enter any billable time" for the firm from 2009 through 2013.
The motion judge granted the firm and the DiPadova defendants' motions. He denied plaintiff's motion. Plaintiff filed an appeal from the summary judgment dismissal of his complaint (A-3878-13). The firm filed a defensive appeal from the dismissal of its crossclaim against the DiPadova defendants (A-4209-13).
II.
Our review of an order granting summary judgment requires application of the same standard guiding the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). See also R. 4:46-1 (stating procedure for summary judgment when underlying facts are undisputed). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). See also R. 4:46-2(c).
In our review,
[w]e consider all facts in a light most favorable to . . . the non-movants, Robinson
v. Vivirito, 217 N.J. 199, 203 (2014), keeping in mind "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). "The practical effect of this rule is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.See also Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). This standard permits this court to consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). "The very object of the summary judgment procedure . . . is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). While the court must view the evidence in the light most favorable to the non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact. 'Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)(citation omitted)), certif. denied, 220 N.J. 269 (2015). "[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." Id. at 606 (quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)).
Since the grant of summary judgment calls for a review of the "trial court's interpretation of the law and the legal consequences that flow from established facts," the trial court's decision is "not entitled to any special deference," and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
[Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div. 2015), certif. denied, ___ N.J. ___ (2016).]
III.
A.
On appeal, plaintiff argues the plain meaning of the employment agreement includes payment of the "maximum amount" of 401(k) plan contributions allowable by law within the requirement to provide him the "same kind and level of benefits as he received while a full time employee." Plaintiff maintains the list of benefits in the Agreement was expressly non-exhaustive, but merely illustrative, as demonstrated by the prefatory phrase "including but not limited to," which is a term of enlargement, not limitation.
The firm argues the Agreement could not guarantee plaintiff's receipt of 401(k) plan contributions for two reasons: first, under the terms of the plan, plaintiff was ineligible because he did not meet the annual work requirement; and second, issuing payments to plaintiff in violation of the plan's terms would ignore the trustee's fiduciary duty to other participating employees in the plan because such an act would disqualify the plan under ERISA and eliminate its beneficial tax consequences for the firm and its employees. Further, the firm notes plaintiff had "access to participate" in the 401(k) plan, if he met the stated qualifications.
Following well-established rules of construction, we review issues of contract interpretation de novo. Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). We start by determining the intent of the parties. M.G.M. Constr. Corp. v. N.J. Educ. Facilities Auth., 220 N.J. Super. 483, 487 (Law Div. 1987); Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979) ("The polestar of construction of a contract is to discover the intention of the parties."). "In that regard, the court may not re-write a contract or grant a better deal than that for which the parties expressly bargained." Globe Motor Co. v. Igdalev, 436 N.J. Super. 594, 602 (App. Div. 2014). See also McMahon v. City of Newark, 195 N.J. 526, 545-46 (2008).
An unambiguous contract must be enforced as written. Schenck v. HJI Assocs., 295 N.J. Super. 445, 450 (App. Div. 1996) (quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 393 (App. Div. 1961)), certif. denied, 149 N.J. 35 (1997). Thus, when "a contract is 'plain and capable of legal construction, the language alone must determine the agreement's force and effect.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014) (quoting Twp. of White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011)). See also Leonard & Butler, P.C. v. Harris, 279 N.J. Super. 659, 671 (App. Div.) ("[U]nambiguous contracts will be enforced as written unless they are illegal or otherwise violate public policy"), certif. denied, 141 N.J. 98 (1995).
Here, the employment agreement's language, on its face, is clear and unambiguous, demonstrating the parties intended plaintiff receive "the same kind and level of benefits" he enjoyed as a full-time employee. However, even giving plaintiff the benefit of all reasonable factual inferences, we conclude his arguments that this included automatic 401(k) plan payments are flawed.
Plaintiff's argument urges us to conclude the Agreement's statement of fringe benefits encompasses annual 401(k) plan contributions under the provision: "It is the expectation of the parties that EMPLOYEE and EMPLOYEE'S spouse will be provided with the same kind and level of benefits as they enjoyed when EMPLOYEE was a full-time employee of EMPLOYER." This reasoning ignores the inescapable fact that the 401(k) plan was created by a separate document; is supervised by plan trustees, not the firm, who are parties to agreement; and the plan is administered by a third-party pursuant to the specific terms and conditions outlined in a lengthy, detailed written plan document. Contrary to the plaintiff's argument, 401(k) plan payments are not a benefit bestowed upon employees of the firm. Rather, the benefit the firm provides its employees is the opportunity to participate in a tax deferred retirement vehicle to which it contributes.
The record clearly reflects plaintiff remained an eligible employee under the terms of the 401(k) plan after terminating his ownership in the firm. However, even his expert agreed the plan's terms, as written, required all employees to meet the "year of service" 1000-hour annual work requirement to qualify for benefits. Had plaintiff done so in any year subject to the Agreement, he would have fully participated in the discretionary profit sharing payments contributed by the firm. Plaintiff's failure to meet the work requirements precluded his participation, nothing more.
The 401(k) plan defines "year of service" as "the computation period of twelve (12) consecutive months herein set forth, during which an Employee has at least 1,000 Hours of Service."
Moreover, to accept plaintiff's interpretation of the Agreement terms to require automatic 401(k) plan payments would lead to an absurd result, unintended by the parties' Agreement and the 401(k) plan. Because plaintiff is ineligible to receive benefits under the 401(k) plan, the plan fiduciaries could not merely confer participation and grant payments without breaching their fiduciary duties and risking disqualification of the plan. See I.R.C. § 401 (noting a qualifying 401(k) plan offers tax benefits to both employees and employers because it provides a tax shelter to employees and any employer contributions to employee plans are deductible on the employer's return). A plan must remain "qualified" to be eligible for the intended, permissible tax benefits. See Buzzetta Constr. Corp. v. Comm'r, 92 T.C. 641, 646 (1989). See also I.R.C. § 401(a)(4) (stating qualification requires among other things, "the contributions or benefits provided under the plan [must] not discriminate in favor of highly compensated employees"). Thus, a plan that fails nondiscrimination testing risks disqualification.
"[W]here a literal interpretation would create a manifestly absurd result, contrary to public policy, the spirit of the [agreement] should control." Perrelli v. Pastorelle, 206 N.J. 193, 200 (2011) (quoting Hubbard v. Reed, 168 N.J. 387, 392 (2001)). Accordingly, plaintiff's interpretation of the Agreement's terms, which would contort the 401(k) plan requirements and disqualify the plan, are rejected.
We also reject plaintiff's suggestion the Agreement's terms can be interpreted to require the firm to amend the 401(k) plan to modify the definition of "year of service" and assure his "availability" for consultation sufficiently satisfied eligibility criteria. Plaintiff's view erroneously requires additional terms to be read into the Agreement that are neither express nor implied. This result is impermissible. Globe Motor Co., supra, 436 N.J. Super. at 602.
Following our review, we conclude the motion judge properly granted the firm's motion for summary judgment. We will not disturb the order dismissing the first and second counts of plaintiff's complaint alleging breach of contract claims. See State v. Western World, Inc., 440 N.J. Super. 175, 189-90 (App. Div. 2015).
Plaintiff additionally asserts the motion judge erroneously engaged in fact-finding. We have reviewed these arguments and, in part, agree certain statements by the judge are unsupported or draw credibility determinations, which are inappropriate when considering a motion for summary judgment. Brill, supra, 142 N.J. at 540. Nevertheless, these flaws do not alter our legal conclusion and, therefore, do not require further discussion in our opinion. --------
B.
Plaintiff also argues the judge erred in dismissing the professional negligence claim against the DiPadova defendants, after finding the Agreement could not support his claim for payment of 401(k) plan payments. He reasons the DiPadova defendants should have specifically included a provision for the payment of benefits arising from his continued employment or provide for a means to amend the 401(k) plan to ensure plaintiff's continued eligibility for contributions despite his change in work status. Following our review, we discern material factual disputes regarding the underlying claims and defenses on this issue, which make the grant of summary judgment improvident.
"The elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)).
Here, it appears the motion judge concluded there was no attorney-client relationship between Stahl and the DiPadova defendants, who he characterized as mere "scriveners" of the Agreement terms dictated by plaintiff. Understanding legal "representation is inherently an aware, consensual relationship," which "is founded upon the lawyer affirmatively accepting a professional responsibility," and such acceptance "need not necessarily be articulated," In re Palmieri, 76 N.J. 51, 58 (1978), we cannot agree the DiPadova defendants' role was merely passive as suggested by the motion judge's comments.
The DiPadova defendants were consulted and requested to create the mechanism to effectuate plaintiff's withdrawal and buyout from the firm. The record reflects the DiPadova defendants considered the tax implications of such a change in plaintiff's status and explored different strategies to satisfy his objectives. For reasons not clearly stated, or for whose benefit, it was determined to use a single employment agreement, executed by plaintiff in the capacity of the employee and employer.
This raises another factual dispute, that is: whether the DiPadova defendants represented plaintiff or drafted the Agreement on behalf of the firm. That fact also must be determined as the interests of the two parties may not be the same, and the question arises whether an actual conflict of interest arises. See In re Supreme Court Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 552 (2006) ("In light of the 2004 amendments to the Rules of Professional Conduct that eliminated New Jersey's long-standing prohibition against the appearance of impropriety . . . we hold that the appearance of impropriety standard no longer retains any continued validity."). In light of conflicting evidence regarding the relationship, summary judgment is improper. See Froom v. Perel, 377 N.J. Super. 298, 311-12 (App. Div.) (holding existence of attorney-client relationship could not be determined as a matter of law due to conflicting evidence as to the nature of the relationship), certif. denied, 185 N.J. 267 (2005).
Once a determination regarding the scope of legal representation is resolved, if the DiPadova defendants are found to have represented plaintiff, the next issue concerns whether, construing the facts in a light most favorable to plaintiff, the DiPadova defendants breached a duty owed to plaintiff in drafting the employment agreement. Conflicting evidence exits on whether the DiPadova defendants were informed and instructed or should have known of the necessity to preserve plaintiff's continued receipt of benefits as a participant in the 401(k) plan. Although the written communications from the DiPadova defendants do not include any reference to the 401(k) payments, plaintiff produced his handwritten memorandum from the meeting with the DiPadova defendants that contains a reference to continuing "pension benefits." Plaintiff's credibility on this issue must be weighed and evaluated by the fact-finder and cannot be dispelled on summary judgment. Brill, supra, 142 N.J. at 540.
Resultant damages is also disputed. In its current form, 401(k) plan payments would be paid only if plaintiff worked 1000 hours per year. Whether the firm was willing to take steps to alter the plan to provide payments to plaintiff is not certain and disputed by the respective experts. Plaintiff's expert suggests the 401(k) plan could be amended to allow an "equivalency" standard to hours of service, in line with 29 C.F.R. § 2530.200b-3, which provides:
For the purpose of determining the hours of service which must be credited to an employee for a computation period, a plan shall determine hours of service from
records of hours worked and hours for which payment is made or due or shall use an equivalency permitted under paragraph (d), (e) or (f) of this section to determine hours of service.More specifically, 29 C.F.R. § 2530.200b-3(f)(ii)(2)-(3) sets forth equivalency standards for "an employee whose compensation is determined on a basis other than an hourly rate."
The applicability of this methodology is challenged by the firm's expert, who recited use of an equivalency to calculate plaintiff's hours is not permitted because he was "an employee whose compensation is not determined on the basis of a fixed rate for a specified period of time" under 29 C.F.R. § 2530.200b-3(f)(3)(ii).
Causation also appears to be disputed as the issue intertwines facts regarding whether the firm would have agreed to amend the 401(k) plan payments to allow plaintiff's participation even though he was not actually working. The DiPadova defendants correctly point out, "[n]o conduct by [the] DiPadova defendants in the drafting of the contract could change the legality of payment" under the terms of the 401(k) plan. However, plaintiff urges he could require any terms and conditions in the Agreement because he owned 88% of the firm when the Agreement was executed. That said, it cannot be ignored the remaining firm partners would be required to satisfy such an obligation, which they may have rejected, similar to firm's unwillingness to honor plaintiff's interpretation of entitlement to 401(k) payments in the first instance.
The material factual disputes on each of these elements of plaintiff's cause of action preclude entry of summary judgment, which must be reversed. Consequently, the third count of plaintiff's complaint must be reinstated.
C.
Having upheld the summary judgment dismissal of plaintiff's claims against the firm, we need not address the issues raised in the firm's appeal. The order of summary judgment dismissing the firm's crossclaims against the DiPadova defendants need not be disturbed.
IV.
In summary, we affirm the orders granting summary judgment to the firm on counts one and two of plaintiff's complaint. We also affirm the summary dismissal of the firm's crossclaims for indemnification and contribution by the DiPadova defendants. However, we reverse the summary judgment dismissal of count three, alleging professional negligence against the DiPadova defendants because material factual disputes exist.
Affirmed in part and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION