Bogoraz v Robert M. Simels, P.C.

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[*1] Bogoraz v Robert M. Simels, P.C. 2006 NY Slip Op 50673(U) [11 Misc 3d 1083(A)] Decided on February 27, 2006 Supreme Court, New York County Acosta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2006
Supreme Court, New York County

Arthur Bogoraz, Plaintiff,

against

Robert M. Simels, P.C. and Robert M. Simels, Esq., Defendants.



103499/05



Andrew Lavoott Bluestone

Attorney for Plaintiff 233 Broadway, 27th Floor

New York, New York

(212) 791-5600

Robert M. Simels, P.C.

Defendant Pro Se

1735 York Avenue

Suite 35C

New York, New York 10128

(212) 369-3900

Rolando T. Acosta, J.

This action arises out of a series of legal representation of plaintiff Arthur Bogoraz ("Bogoraz") by defendant law firm Robert M. Simels, P.C. ("Simels")[FN1] commencing in August 2004 in connection with a 93-count felony indictment against plaintiff in Supreme Court Queens County, which included, inter alia, Enterprise Corruption in violation of New York State Penal Law § 460.20(1)(a). Within a few days after defendant began representing plaintiff in the Queens criminal matter, defendant also began representing plaintiff in a civil matter in the U.S. District Court for the District of New Jersey in which plaintiff's airplane was being seized, wherein plaintiff was accused of committing fraud by providing a lending institution, Crystal Lake Bank and Trust, with false documentation in securing a loan. In that action Crystal Lake Bank and Trust alleged that plaintiff was in default on a loan they had extended to him.

Subsequent to plaintiff's representation by defendant in the federal civil matter, plaintiff was once again arrested in Queens County on or about August 12, 2004 based on an outstanding warrant issued out of Albany County where a complaint was filed against plaintiff charging him with Offering a False Personal Income Tax Return for Violation, in violation of Tax Law § 1804(b). These charges were directly related to plaintiff's financing with Crystal Lake Bank and Trust. A search incident to that arrest revealed that plaintiff was in possession of cocaine and consequently plaintiff was arraigned in Queens County Criminal Court on or about August 13, 2004 and charged with one count of Possession of Controlled Substance in the Seventh Degree, a Class A Misdemeanor. Plaintiff was remanded and remained incarcerated until additional bail was posted, and following his arraignment in Albany County on tax violations.

On or about September 21, 2004 plaintiff was once again arrested, this time for Producing a Simulated Drivers License in the Third Degree, in contravention of N.J.S.A. 2C:21-2.1)( c). Based on these arrests, plaintiff's initial bail of $400,000 led to his remand once again. Following a series of Petitions for Writ of Habeas Corpus, the Appellate Division, Second [*2]Department altered plaintiff's remand status and set bail at $2,500,000. Unable to satisfy the bail conditions, plaintiff terminated defendant Law Firm's services on or about December 2004.

Plaintiff thereafter commenced the instant action against defendant claiming that defendant failed to return unused retainer payments, that defendant charged non-refundable retainers, that defendant's fees were unreasonable, and that defendant failed to provide legal representation to plaintiff that comported with the applicable standard of care exercised by attorneys and thus defendant's conduct constituted legal malpractice. Defendant now moves for an order by this Court granting judgment as a matter of law against plaintiff's fifth cause of action for legal malpractice.

It is well settled that the proponent of a motion for summary judgment must establish that "there is no defense to the cause of action or that the cause of action or defense has no merit," (C.P.L.R. §3212[b]), sufficiently to warrant the court as a matter of law to direct judgment in his or her favor. Bush v. St. Claire's Hospital, 82 NY2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). This standard requires that the proponent of the motion "tender[] sufficient evidence to eliminate any material issues of fact from the case," id., "by evidentiary proof in admissible form." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." C.P.L.R. §3212(b).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v. Kenworth Truck Company, 68 NY2d 714, 717 (1986); Zuckerman v. City of New York, supra, 49 NY2d at 560, 562. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. Id., at 562. In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, affording them the benefit of all reasonable inferences that can be drawn. Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985).

In viewing the facts in the light most favorable to plaintiff, defendant's

motion for a judgment as a matter of law is nevertheless granted. In order to have a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, the former client must demonstrate his innocence or a colorable claim of innocence. Britt v. Legal Aid Society, 95 NY2d 443 (2000). Moreover, the former client has the burden of pleading and proving that his conviction was due solely to the actions of his attorney and not a result of some consequence of his guilt. Id at 47. Plaintiff has failed to satisfy this burden. According to defendant's affirmation, on July 6, 2005 plaintiff pled guilty to Enterprise Corruption in the Queens County Indictment and is currently servinging 1 -3 years at Mt. McGregor Correctional Facility. Additionally, plaintiff pled guilty to the Albany County felony charges and the New Jersey charge involving Producing a Simulated Drivers License in the Third Degree. Rather than assert his innocence or a colorable claim of his innocence, Colbert v. Haydon, 261 AD2d 276 (1st Dept. 276), plaintiff merely conclusorily alleges that defendant law firm engaged in legal malpractice. Moreover, defendant does not deny or offer any evidence in admissible form to dispute that he actually pled guilty to those charges. "Regardless of the plaintiff's subjective [*3]reasons for pleading guilty, he may not now collaterally attack the conviction in this civil setting." Kaplan v. Sachs, 224 AD2d 666 (2nd Dept. 1996).

Plaintiff argues, however, that since his cause of action for malpractice against defendant is based both on defendant's representation in the prior criminal proceedings as well as the prior federal civil matter, disposition of the prior criminal proceedings does not preclude a legal malpractice claim based on the civil matter. This contention is equally unavailing inasmuch as the civil action was dismissed during defendant's law firm's representation of plaintiff. Plaintiff has failed to allege that settlement of the civil action was prompted by inappropriate conduct or as a result of some mistake on the part of defendant law firm. See U.S. Ice Cream Corp. , et al v. Bizar, etc. et al., 240 AD2d 654 (2nd Dept. 1997); Bernstein v. Oppenhein & Co., P.C., 160 AD2d 428 (1st Dept. 1990).

Once defendant made a prima facie showing of its entitlement to summary judgment, the burden then shifted to plaintiff to establish material issues of fact. Vermette v. Kenworth Truck Company, supra, at 717. Plaintiff failed to satisfy this burden. As noted, plaintiff does not allege his innocence or a colorable defense. Rather, plaintiff argues that defendant's affirmation is insufficient to establish a prima facie entitlement to summary judgment inasmuch as defendant has failed to produce any evidence in admissible form. This argument is without merit. Robert P. Simels, Esq. represented plaintiff in the prior actions, and as such had personal knowledge of the facts surrounding plaintiff's claim of legal malpractice which established a prima facie entitlement to summary judgment. GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985). Thus, defendant is able to show through admissible evidence that it is entitled to summary judgment as to plaintiff's fifth cause of action.

Rather than providing the Court with evidence that a triable issue of fact exists as to whether defendant engaged in legal malpractice, plaintiff merely argues that plaintiff failed to provide the certificates of conviction without denying plaintiff's conviction or asserting a colorable defense. In fact, defendant failed to provide any evidence whatsoever which would warrant denial of defendant's summary judgment motion. See Dillenberger v. 74 Fifth Avenue Owners Corp., 155 AD2d 327 (1st Dept. 1989) (Conclusory allegations regarding the existence of issues of fact, standing alone are insufficient to defeat a motion for summary judgment). Accordingly, it is hereby

ORDERED that defendant' motion for summary judgment dismissing plaintiff's fifth cause of action is GRANTED.

This constitutes the Decision and Order of the Court.

Dated: February 27, 2006 ENTER _________________________ Rolando T. Acosta, J.S.C.

To: Footnotes

Footnote 1: In a "So Ordered Stipulation" dated September 8, 2005, plaintiff discontinued the action against Robert M. Simels, Esq., individually.



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