Jones v Lopez

[*1] Jones v Lopez 2006 NY Slip Op 51444(U) [12 Misc 3d 1184(A)] Decided on January 31, 2006 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2006
Supreme Court, Bronx County

Angela Jones, Plaintiff

against

Walter Lawrence Lopez and JACOBY & MEYERS, Defendants



27337/2002



APPEARANCES:

For Plaintiff

Howard R. Birnbach Esq.

111 Great Neck Road, Great Neck, NY 11021

For Defendand Jacoby & Meyers

Kristopher M. Dennis Esq.

Kaufman Borgeest & Ryan LLP

99 Park Avenue, New York, NY 10016

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover damages for legal malpractice arising from defendant Lopez's failure to commence a personal injury action timely on plaintiff's behalf. Defendant Jacoby & Meyers moves for summary judgment dismissing the complaint against this defendant on the ground that the law firm is not liable to plaintiff. C.P.L.R. § 3212(b). For the reasons explained below, the court grants the motion by Jacoby & Meyers and dismisses the firm from the action.

II.LIABILITY OF DEFENDANT JACOBY & MEYERS

Plaintiff's legal malpractice claim against defendant Jacoby & Meyers requires plaintiff to establish an attorney-client relationship with defendant. Linden v. Moskowitz, 294 AD2d 114, 115 (1st Dep't 2002); D'Amico v. First Union Natl. Bank, 285 AD2d 166, 172 (1st Dep't 2001). Jacoby & Meyers claims that no evidence indicates the law firm entered an attorney-client relationship with plaintiff at any time, and any evidence of attorney Lopez's affiliation with the firm was due to his own culpable conduct. Plaintiff claims that Jacoby & Meyers is liable for the acts of Lopez, its agent, and Lopez at minimum was clothed with apparent authority.

A.Defendant's Evidence

Plaintiff testified at her deposition that she retained Lopez to handle a personal injury action. Although the identified retainer agreement dated December 20, 1999, bears a logo indicating an affiliation with Jacoby & Meyers, plaintiff admits that the retainer's text obligates only Lopez to perform legal services for her and makes no reference to Jacoby & Meyers. Plaintiff further admits to consulting with only Lopez regarding her case. Moreover, Lopez's letter dated June 3, 2002, and received by plaintiff, advising her he would no longer represent her in her action, does not indicate any affiliation with Jacoby & Meyers.

Andrew Finkelstein, the managing partner of Jacoby & Meyers and a partner in [*2]Finkelstein, Levine, Gittlesohn & Partners, attests to a management service agreement between the latter firm and Jacoby & Meyers in March 1999, dissolving Jacoby & Meyers as a legal entity, while maintaining its name. After the dissolution, Jacoby & Meyers allowed its former offices to become affiliated independent offices upon executing a July 1999 affiliate agreement. Finkelstein denies that Lopez was affiliated with Jacoby & Meyers when plaintiff retained him in December 1999 or when he terminated his representation of her in June 2002. Although Lopez acquired the practice of former Jacoby & Meyers limited liability partner Barbara Sperling, who left Jacoby & Meyers in April 1999, and Lopez referred cases to Jacoby & Meyers, he never executed the July 1999 affiliate agreement. Finkelstein disclaims familiarity with or authorization of Lopez's letterhead indicating an affiliation with Jacoby & Meyers.

Jacoby & Meyers also corresponded with Lopez after his December 1999 retainer, but Finkelstein explains that this correspondence was to obtain data for the dissolved partnership's 1999 tax returns and to record cases referred to and from affiliates. This information covered the period in 1999 before the July 1999 affiliate agreement and before Sperling's April 1999 departure. In fact, in response to a letter dated August 29, 2000, from Jacoby & Meyers, Lopez submitted a list of all cases he or Sperling referred to the firm, which did not include plaintiff's case.

Attorney Barbara Sperling's deposition testimony confirms the transfer of her practice to Lopez. Sperling testified that during her tenure with Jacoby & Meyers, its personal injury cases all were processed through its New York County office. She and Lopez maintained their office in Bronx County. She also denies familiarity with the retainer agreement signed by plaintiff or that her letterhead ever bore a logo indicating an affiliation with Jacoby & Meyers.

All this evidence demonstrates the absence of an attorney-client relationship between Jacoby & Meyers and plaintiff and establishes a prima facie defense on this ground.

B.Plaintiff's Rebuttal

Plaintiff points to her deposition testimony that in November or December 1999, she telephoned Jacoby & Meyers at the number listed in the telephone book, and whoever answered at that number directed her to Lopez's office, which posted a Jacoby & Meyers sign. Plaintiff's affidavit further attests that Lopez gave her a business card that also bore a logo indicating an affiliation with Jacoby & Meyers. Finally, plaintiff refers to the New York Lawyers Diary and Manual that listed Lopez as a Jacoby & Meyers employee.

While this evidence may have furnished a basis for suspecting an affiliation, in the face of the uncontroverted testimony that Lopez's use of a Jacoby & Meyers logo was unauthorized and postdated the firm's dissolution and that Sperling separated from the firm in early 1999, the evidence fails to connect Lopez with Jacoby & Meyers. Plaintiff's subjective belief of an attorney-client relationship is not determinative. Weadick v. Herlihy, 16 AD3d 223, 224 (1st Dep't 2005); Jane St. Co. v. Rosenberg & Estis, 192 AD2d 451 (1st Dep't 1993); Solondz v. Barash, 225 AD2d 996, 998 (3d Dep't 1996).

Plaintiff also relies on Lopez's hearsay representation that he and Jacoby & Meyers would handle her case. Absent Lopez's authority from Jacoby & Meyers to make such a representation, this hearsay does not constitute an admission binding Jacoby & Meyers. Tyrell v. Wal-Mart Stores, 97 NY2d 650, 652 (2001); Candela v. City of New York, 8 AD3d 45, 47 (1st Dep't 2004). Plaintiff presents no evidence that Lopez possessed that authority.

Plaintiff's reliance on Sperling's testimony regarding a letter from Jacoby & Meyers that it would accept Lopez as a partner in Sperling's place fails as double hearsay. Neither plaintiff nor Jacoby & Meyers offers the letter, even though plaintiff could have sought it in disclosure. Moreover, assuming Sperling's account of the letter is accurate, Lopez would have stood in Sperling's place only until the July 1999 dissolution.

Finally, a facsimile dated November 22, 2000, from Jacoby & Meyers, which it distributed to Lopez, and on which plaintiff further relies to establish defendants' connection, is also substantively unavailing. The communication seeks confirmation by former limited liability partners that they ceased being partners in Jacoby & Meyers before December 31, 1999, and thus [*3]relates to Sperling. Lopez's letter dated November 27, 2000, to Jacoby & Meyers, unilaterally declaring that he assumed Sperling's status as a limited liability partner, does not show that the firm held him in that status. Even if he did assume that status, it terminated with the dissolution, before plaintiff retained him. Any lesser status, such as an attorney's "of counsel" relationship with a firm, would not establish privity between the firm and a client of the attorney. Hirsch v. Weisman, 189 AD2d 643, 644 (1st Dep't 1993). C.Conclusion

Plaintiff's admitted lack of contact and lack of relationship with Jacoby & Meyers are fatal to her malpractice action against this defendant. She fails to establish that Jacoby & Meyers explicitly undertook to perform a service for her, either orally or in writing, Volpe v. Canfield, 237 AD2d 282, 283 (2d Dep't 1997); assisted in prosecuting her case, DiPietro v. Seth Rotter, P.C., 5 AD3d 224, 225 (1st Dep't 2004); Wei Cheng Chang v. Pi, 288 AD2d 378, 380 (2d Dep't 2001); or corresponded with her. Karlsson & Ng v. Frank, 162 AD2d 269 (1st Dep't 1990). Any such activities on the part of Jacoby & Meyers could demonstrate an attorney-client relationship.

As set forth above, plaintiff also fails to show any representations or other actions by Jacoby & Meyers that granted Lopez apparent authority to contract for and bind the firm. Indosuez Intl. Fin. v. National Reserve Bank, 98 NY2d 238, 245-46 (2002); Standard Funding Corp. v. Lewitt, 89 NY2d 546, 551 (1997); Clark v. Bristol-Myers Squibb & Co., 306 AD2d 82, 84 (1st Dep't 2003); Parlato v. Equitable Life Assur. Socy. of U.S., 299 AD2d 108, 112-13 (1st Dep't 2002). Nor does plaintiff establish fraud, collusion, or malicious acts by Jacoby & Meyers or other special circumstances for which it could be held liable despite the absence of contractual privity. Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 170 AD2d 108, 118 (1st Dep't 1991), aff'd, 80 NY2d 377 (1992); Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 AD2d 384, 385 (1st Dep't 1992); National Westminster Bank v. Weksel, 124 AD2d 144, 147 (1st Dep't 1987).

III.DISPOSITION

Since the evidence raises no factual issues regarding an attorney-client relationship between plaintiff and defendant Jacoby & Meyers, her action for legal malpractice against Jacoby & Meyers is unsustainable. Therefore the court grants the motion by Jacoby & Meyers for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b).

DATED: January 31, 2006

______________________________

LUCY BILLINGS, J.S.C.