Richardson v Lindenbaum & Young

[*1] Richardson v Lindenbaum & Young 2006 NY Slip Op 50453(U) [11 Misc 3d 1070(A)] Decided on March 27, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2006
Supreme Court, Kings County

Bruce Richardson & S. INDUSTRIES GENERAL CONTRACTORS, INC., Plaintiffs,

against

Lindenbaum & Young, ALAN YOUNG, ESQ., POLLACK & ASSOCIATES, PLLC, and IRA B. POLLACK, ESQ., Defendants.



2814/05

Arthur M. Schack, J.

Plaintiffs allege legal malpractice by defendant law firms and attorneys. Defendants Lindenbaum & Young and Alan Young, Esq. (Young defendants) move, pursuant to CPLR Rule 3211 (a) (7), to dismiss plaintiffs' verified complaint for failure to state a cause of action. This Court, pursuant to CPLR Rule 3211(c), will consider the [*2]motion of the Young defendants as a summary judgment motion.

The instant action is part of a "long and winding road" of litigation.[FN1] Plaintiffs should have "let it be" for the Young defendants and not have them as defendants in this action. According to the verified complaint [exhibit A of motion], Tri-Global Management Corp. obtained a judgment against non-parties to the instant action, Charles and Regis Richardson, for $727,847 (Tri-Global Management Corp. v Charles Richardson and Regis Richardson, Index No.42319/94). Tri-Global Management then sued Charles Richardson and plaintiff S.V. Industries General Contractor, Inc. (Tri-Global Management Corp. v Charles Richardson and S.V. Industries General Contractors, Inc., Index # 8456/02) to collect on the judgment. Tri-Global then commenced a third action against Charles Richardson and S.V. Industries (Index #48164/02), alleging a fraudulent conveyance of real property, located at 160 9th Street, Brooklyn, New York, from Charles Richardson to plaintiff Bruce Richardson.

Tri-Global served numerous information subpoenas on plaintiff Bruce Richardson. Plaintiffs allege in their complaint that the Young defendants advised Mr. Richardson not to respond. On July 17, 2002, before the Hon. Lewis Douglass, Tri-Global's motion for contempt in the collection action and motion for a default judgment in the fraudulent conveyance action were on the Court calendar. Justice Douglass, in a short-form order, adjourned the motions and relieved the Young defendants as counsel. Defendant Pollack and his firm ("Pollack" defendants) appeared on the next court date, August 7, 2002, as new counsel. According to Justice Douglass' September 19, 2002 Order [exhibit C of plaintiffs' affirmation in opposition], the Pollack defendants failed to oppose the contempt motion, and the plaintiffs in the instant action, Bruce Richardson and S.V. Industries, were held to be "in contempt of this Court by reason of their wilful failure to comply with a Subpoena Duces Tecum and Deposition in connection with a Judgment entered on December 12, 2001 in Tri-Global's favor against Charles Richardson in the amount of $727,847.27 . . ."

In his January 9, 2003 Order [exhibit B of plaintiffs' affirmation in opposition and exhibit C of Pollack defendants' affirmation in opposition], Justice Douglas refused to vacate the default and contempt of plaintiffs in the instant action, finding "no excusable grounds for default nor do I find [a] meritorious defense."

In the instant complaint only plaintiffs' first and fourth causes of action are against the Young defendants. Plaintiffs in their first cause of action claim damages of $1,000,000 for legal malpractice by the Young defendants, asserting that "but for" the negligence of the Young defendants, they would not have been held in default and contempt. In their fourth cause of action plaintiffs claim damages of $10,000,000 caused [*3]by the Young defendants breach of contract for legal representation.

For the reasons that follow, plaintiffs have failed to allege that the Young defendants were the proximate cause of their loss, that they sustained actual damages, and "but for" the malpractice of the Young defendants, plaintiffs would not have sustained some actual and ascertainable damages. Further, subsequent to the substitution of the Pollack defendants as new counsel there was ample opportunity to vacate plaintiffs' default and present a meritorious defense, if plaintiffs had one. When Justice Douglass issued his September 19, 2002 and January 9, 2003 orders, plaintiffs were then represented by the Pollack defendants, not the Young defendants.

Summary judgment standard

The proponent of 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. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenburg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the nonmoving party. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

In the instant case, the Young defendants' motion for summary judgment demonstrates a prima facie showing of entitlement to judgment as a matter of law. Plaintiffs have failed to establish the four elements necessary to prove legal malpractice. In Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 (2d Dept 2005), the Court, quoting from its holding in Iannarone v Gramer, 256 AD2d 443 (2d Dept 1998), at 444, held that:

To establish a cause of action to recover damages for legal malpractice,

a plaintiff must prove (1) that the defendant attorney failed to exercise that

degree of care, skill, and diligence commonly possessed by a member of

the legal community, (2) proximate cause, (3) damages, and (4) that the

plaintiff would have been successful in the underlying action had the [*4]

attorney exercised due care (see, Volpe v. Canfield, 237 AD2d 282 [2d

Dept 1997]).

Counsel for plaintiffs in the instant action should be very familiar with Tortura as he represented plaintiff Tortura. Plaintiff Tortura accused defendant law firm of legal malpractice and breach of contract, after they had settled a medical malpractice action during trial. Defendant moved, in Supreme Court, Kings County, to dismiss the legal malpractice action, pursuant to CPLR Rule 3211 (a) (7), as in the instant case. Justice Douglass, who issued the contempt and default orders against the plaintiffs in the instant case, granted defendant's motion to dismiss in Tortura, for the same reasons I am dismissing the complaint against the Young defendants in the instant action. The Appellate Division affirmed Justice Douglass 4-0, holding further, at 1083, that:

Viewing the complaint in the light most favorable to the plaintiff (see

Leon v Martinez, 84 NY2d 83, 87-88 [1994]) we find that it fails to plead

specific factual allegations demonstrating that, but for the defendant's

alleged negligence, there would have been a more favorable outcome

in the underlying action.

See Arnav Industries Inc. Retirement Trust v Brown, Raysman, Millstein Felder & Steiner, L.L.P., 96 NY2d 300, 303-304 (2001); McCoy v Feinman, 99 NY2d 295, 301-302 (2002); Hill v Fisher & Fisher, 203 AD2d 328 (2d Dept 1994); Zasso v Maher, 226 AD2d 366, 367 (2d Dept 1996; Natale v Jeffrey Samel & Associates, 308 AD2d 568, 569 (2d Dept 2003); Edwards v Haas, Greenstein, Samson Cohen & Gerstein, P.C., 17 AD3d 517, 519 (2d Dept 2005); Levy v Greenberg, 19 AD3d 462, 444 (2d Dept 2005); Terio v Spodek, 25 AD3d 781 (2 Dept 2006).

Viewing the complaint in the instant action in the light most favorable to plaintiffs, plaintiffs have failed to meet the fourth requirement for legal malpractice, as cited in Tortura, supra, "that the plaintiff would have been successful in the underlying action had the attorney exercised due care." This is also referred to as the "but for" element of a legal malpractice claim. Plaintiffs' complaint fails to allege that plaintiff's would have prevailed in their defense to the various lawsuits but for the malpractice of the Young defendants. Stroock & Stroock & Lavan v Beltramini, 157 AD2d 590 (1st Dept 1990); Zeitlin v Greenberg, Margolies, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Falkin, P.A., 209 AD2d 510 (2d Dept 1994); Zasso v Maher, supra; Natale v Jeffrey Samel & Associates, supra; Levy v Greenberg, supra.

Further, plaintiffs' theory of liability is based upon Justice Douglass' September 19, 2002 and January 9, 2003 orders for contempt and refusal to vacate plaintiffs' default, finding that plaintiffs lacked an excusable default or a meritorious defense. Plaintiffs' claims were viable when the Pollack defendants became plaintiffs' counsel on August 7, 2002. According to plaintiffs' complaint, it was the failure of the Pollack defendants to comply with various Court instructions to submit proof of a meritorious defense that [*5]caused Justice Douglass to deny the motion to vacate the default judgment. Justice Douglass, in his January 9, 2003 Order, discussed Mr. Pollack's "continuing pattern of default followed by motion to vacate, followed by default," and "how this litigation is regularly delayed." In cases where a successor counsel had sufficient time to protect a party's rights, as in the instant case, the outgoing counsel could not be liable for malpractice. Any alleged negligence by an outgoing attorney cannot be the proximate cause of any of plaintiffs' alleged damages. Kozmel v Law Firm of Allen L. Rothenberg, 241 AD2d 484 (2d Dept 1997); Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281 (2d Dept 2001); Albin v Pearson, 289 AD2d 272 (2d Dept 2001); Perks v Lauto & Garabedian, 306 AD2d 261 (2003); Ramcharan v Pariser, 20 AD3d 556 (2d Dept (2005).

The damages alleged by plaintiffs, in the instant action, are all speculative. They allege that the Young defendants make them responsible for payment of a judgment previously rendered. However, it is not alleged anywhere in the verified complaint that the Young defendants were actually responsible for such judgment. Plaintiffs have failed to provide any information in the complaint as to how the amounts sought represent a sum of damages directly caused by any actions of the Young defendants. Such speculative damages cannot be the basis for a legal malpractice claim. Lauer v Rapp, 190 AD2d 778 (2d Dept 1993); Levine v Lacher & Lovell-Taylor, 256 AD2d 147 (1st Dept 1998); Pellegrino v File, 291 AD2d 60 (1st Dept 2002).

Plaintiffs' fourth cause of action for breach of contract is duplicative of the first cause of action for negligent malpractice. If the tort claim is dismissed, so must be the contractual claim for malpractice. Sage Realty Corp. v Proskauer Rose LLP, 251 AD2d 35 (1st Dept 1998); Levine v Lacher & Lowell-Taylor, supra; Shivers v Siegel, 11 AD3d 447 (2d Dept 2004); Daniels v Lebit, 299 AD2d 310 (2d Dept 2002); Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., supra.

In opposing the Young defendants' summary judgment motion the burden shifts to plaintiffs to demonstrate the existence of triable issues of fact. See Alvarez v Prospect Hospital, supra; Winegrad v New York University Medical Center, supra. Plaintiffs have failed to do this. Further, the alleged affidavit of plaintiff Bruce Richardson, attached to plaintiffs' counsel's affirmation in opposition is inadmissible. The line in the jurat for the notary public's signature is blank. Any information as to the name and the commission of the notary public is also missing. This alleged affidavit is invalid pursuant to CPLR § 2309 and Executive Law § 137. Executive Law § 137 states:

In exercising his powers pursuant to this article, a notary public, in addition

to the venue of his act and his signature, shall print, typewrite, or stamp

beneath his signature in black ink, his name, the words "Notary Public

State of New York," the name of the county in which he originally qualified,

and the date upon which his commission expires and, in addition, wherever

required, a notary public shall also include the name of any county in which [*6]

his certificate of official character is filed, using the words "Certificate

filed . . . County."

Thus, this Court has no choice but to dismiss from the instant action the Young defendants. The case continues with the Pollack defendants.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendants Lindenbaum & Young and Alan Young, Esq., pursuant to CPLR Rule 3211 (a) (7), to dismiss plaintiffs' verified complaint against defendants Lindenbaum & Young and Alan Young, Esq., for failure to state a cause of action is granted, and it is

ORDERED, that the first and fourth causes of action in the verified complaint are dismissed.

This constitutes the Decision and Order of the Court.

E N T E R

___________________________

HON. ARTHUR M. SCHACK

J. S.C. Footnotes

Footnote 1: Paul McCartney wrote "Long and Winding Road" in 1969 for the Beatles last album, Let It Be, released in 1970.