Meralla v Goldenberg

Meralla v Goldenberg 2011 NY Slip Op 08656 Decided on November 29, 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 29, 2011
Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.
6188 24347/98 81193/99

[*1]Efren Meralla, Plaintiff-Respondent,

v

Stephen M. Goldenberg, Defendant-Respondent, Philip L. Weinstein, et al., Defendants-Appellants. Stephen M. Goldenberg, Third-Party Plaintiff-Respondent, Philip L. Weinstein, et al., Third-Party Defendants-Appellants.




Rosen Livingston & Cholst LLP, New York (Peter I.
Livingston of counsel), for appellants.
Friedman & Moses, LLP, Garden City (Lisa M. Comeau of
counsel), for Efren Meralla, respondent.
Stephen M. Goldenberg, Hewlett, respondent pro se.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 24, 2011, which denied the motion of defendants/third-party defendants (Legal Aid defendants) to dismiss the amended and third-party complaints as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff seeks to recover for successive acts of legal malpractice allegedly committed by defendant Goldenberg, who represented him at a criminal trial at which he was convicted of murder in the second degree, and by the Legal Aid defendants, who delayed in successfully prosecuting the appeal of his conviction (see 228 AD2d 160 [1996], lv denied 88 NY2d 989 [1996] [reversing plaintiff's conviction on the grounds of ineffective assistance of counsel]). Goldenberg seeks contribution from the Legal Aid defendants for the portion of plaintiff's imprisonment allegedly attributable to the delay in appealing the criminal conviction.

Plaintiff's claim against the Legal Aid defendants, brought more than 10 years after they secured the reversal of his criminal conviction, is time-barred. Plaintiff, who admitted being aware of the Legal Aid defendants' alleged delay in prosecuting the appeal as early as 1998, made no mistake in the identity of these defendants and cannot now rely on the relation-back [*2]doctrine to assert a claim against them (see Buran v Coupal, 87 NY2d 173, 181 [1995]; Goldberg v Boatmax://, Inc., 41 AD3d 255 [2007]).

Plaintiff also failed to state a cause of action against the Legal Aid defendants. It is well established that "[i]n order to sustain a claim for legal malpractice, a plaintiff must establish . . . that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Here, the bare legal assertion that the Legal Aid defendants were negligent based on the delay in prosecuting the appeal of plaintiff's conviction is insufficient to state a cause of action for legal malpractice. The delay was clearly attributable to the preparation of the Legal Aid defendants' motion to vacate the judgment of conviction, which was complicated by, inter alia, the fact that two separate murder trials were at issue.

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

ENTERED: NOVEMBER 29, 2011

CLERK