Hirsch v Fink

Hirsch v Fink 2011 NY Slip Op 07699 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Catterson, J.P., Moskowitz, Freedman, Abdus-Salaam, JJ.
5876 112198/06

[*1]Samuel Hirsch, Plaintiff-Appellant,

v

Stephen Fink, Defendant-Respondent.




Samuel Hirsch & Associates, PC, New York (Samuel Hirsch of
counsel), for appellant.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City
(William T. McCaffery of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 28, 2010, which, in this legal malpractice action, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

As defendant did not represent plaintiff in the underlying accounting action at the time the conditional order of preclusion was issued or in the next 30 days, during which plaintiff was to provide outstanding discovery, he was not responsible for plaintiff's answer being stricken (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652 [2011]). Contrary to plaintiff's contention, his attorney-client relationship with defendant did not continue indefinitely simply because it was not terminated in writing (see Leffler v Mills, 285 AD2d 774, 776-777 [2001]). The record contains no "indicia of an ongoing, continuous, developing and dependent relationship" between plaintiff and defendant (see Muller v Sturman, 79 AD2d 482, 485 [1981]), particularly where plaintiff engaged another lawyer. Nor could defendant have moved timely, i.e., within 30 days, to reargue the order to permit plaintiff to disregard overly broad discovery requests (see CPLR 2221).

To prevail in this legal malpractice action, plaintiff would have to show that but for defendant's negligence he would have obtained a better result in the underlying accounting action (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [2007]). To make that showing, plaintiff would have to litigate the issues of which cases belonged to the alleged partnership between himself and the underlying plaintiff and the fees to which he was entitled. However, those issues were raised and decided against plaintiff in the underlying action (Frankel v Hirsch, 38 AD3d 712 [2007]), where he had a full and fair opportunity to litigate them, and he is precluded by the
doctrine of collateral estoppel from re-litigating them in this action (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011

CLERK