Chemtob Moss Forman & Talbert, LLP v Leopold
Annotate this CaseDecided on May 4, 2009
Supreme Court, New York County
Chemtob Moss Forman & Talbert, LLP, Plaintiff,
against
Elise Leopold, Defendant.
110402/07
ATTORNEY FOR THE PLAINTIFF :
MELITO & ADOLFSEN, P.C.
233 BROADWAY
NEW YORK, NEW YORK 10279
(212) 238-8900
212-238-8999
ATTORNEY FOR THE DEFENDANT :
BONDI & IOVINO
1055 FRANKLIN STREET- STE. 206
GARDEN CITY, NY 11530
(516) 741-8585
Walter B. Tolub, J.
Motion sequence 002 and sequence 003 are consolidated for disposition and decided in accordance with this memorandum decision.
By motion sequence 002, Plaintiff seeks an order directing the issuance of two open commissions for the depositions of non-party witnesses Howard Wood III of the law firm Phelon Fitzgerald & Wood, PC, and order requesting the Hartford Judicial District Superior Court, State of Connecticut, to issue a subpoena duces tecum ad testificandum to Leonard Udolf and Howard Wood III.
By motion sequence 003, Plaintiff seeks an order compelling Defendant to serve full and
complete responses to discovery requests.
Facts[*2]
In the underlying action, Plaintiff seeks to recover $90,735.50 in unpaid legal fees for services rendered during Defendant's divorce proceedings. Defendant interposed a counterclaim for legal malpractice. Defendant claims that the settlement agreement in the divorce action failed to include certain enforcement mechanisms and that Plaintiff over-billed Defendant.
Plaintiff now claims that Mr. Wood III and Mr. Udolf have material and necessary information pertaining to the counterclaim and that they should provide discovery and be deposed. Plaintiff argues that Mr. Udolf, Defendant's father, paid all legal fees and directed many aspects of the divorce action. Plaintiff also claims that Mr. Udolf directed the "family attorney", Mr. Wood III, to demand that Plaintiff accept a highly discounted payment. Additionally, Plaintiff claims that Mr. Udolf wanted to settle the divorce action very generally and without specific details because he knew that Defendant could face various personal liabilities regarding deficiencies in escrow accounts in a title agency that both Defendant and her ex-husband co-owned [FN1].
Plaintiff claims that Mr. Udolf consulted with Mr. Wood III for legal opinions regarding the matrimonial litigation and controlled the purse strings of the divorce action. Plaintiff further claims that Defendant consulted with Mr. Wood III and asserted the attorney client privilege as to those communications claiming that he was acting as her attorney.
Ms. Moss, the attorney at Plaintiff firm working on Defendant's divorce action, claims that Mr. Wood III was involved in negotiating the settlement in the divorce proceedings and had been a decisive figure in convincing opposing counsel to accept the terms of settlement. Ms. Moss also represented that Plaintiff's legal representation was terminated by Mr. Wood III on behalf of the Defendant.
Plaintiff asserts that Mr. Wood III and Mr. Udolf have material and necessary information regarding the counterclaim for malpractice and that therefore a commission should be issued for their depositions and for documents. Additionally, Plaintiff asserts that, to the extent that Mr. Wood III provided legal advice to Defendant regarding her divorce action, he may be a possible third-party defendant.
Defendant opposes Plaintiff's motion and argues that Mr. Udolf and Mr. Wood III have no
necessary and material information [*3]regarding this action
because her malpractice claim involves the protection of her interests only.
Discussion
CPLR §3101 provides for full disclosure of all matters material and necessary in the prosecution or defense of an action. The full disclosure requirement is subject to a test of usefulness and reason (Reyes v. Riverside Park Community, 47 AD3d 599 [1st Dept 2008]). While the disclosure provision of the statute is ordinarily construed liberally, the scope of permissible discovery is not unlimited and the trial court is vested with broad discretion to determine what is material and necessary (Andrew Carothers, MD, PC v. Insurance Companies Represented by Bruno, Gerbino & Soriano, LLP and Freiberg & peck, LLP, 13 Misc 3d 970 [2006]).
Plaintiff argues that Mr. Udolf and Mr. Wood III, both non-parties to this action, should be deposed and made to turn over discovery because they have necessary and material information regarding Defendant's counterclaim for legal malpractice.
An attorney owes each client a duty to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community (emphasis added)(Morrison, Cohen, Singer & Weinstein v. Zucker, 203 SD2d 119 [1st Dept 1994]). The standard of care is the same regardless of whether the attorney is paid or gives free advice Grudberg v. Midvale Realty Co., 119 Misc. 558 [1st Dept 1922]). In order to state a claim for legal malpractice the plaintiff must establish that the attorney's conduct fell below the ordinary reasonable skill and care possessed by an average member of the legal community (Zeitlin v. Greenberg Margolis Zeilger Schwartz Drash Fishman, 209 AD2d 510 [2d Dept 1994]). When an attorney is retained, it is the attorney's responsibility to conduct the matter properly and to know or learn the applicable law (Hart v. Carro Spanbock Kaster & Cuiffo, 211 AD2d 616 [2d Dept 1995]).
Mr. Udolf's and Mr. Wood III's involvement, financial or otherwise, is irrelevant as Plaintiff's duty was to the Defendant only. Nowhere in the law is it stated that an attorney representing a client owes a duty to anyone but the client or that the attorney must follow outside advice. Plaintiff's defense to Defendant's malpractice claim will stem from its own actions and relationship with Defendant. As such, Plaintiff's motion for commissions and subpoenas for Mr. Udolf and Mr. Wood III is denied.
Additionally, Plaintiff's demand for discovery relating to Mr. Udolf's loan to Defendant or payments made to Plaintiff, is denied as irrelevant since the source of Defendant's legal payments do not relate to the damages she is seeking under her legal malpractice claim. All discovery demands relating to [*4]payments made and their source are denied.
Moreover, as stated above, Plaintiff seeks information regarding Mr. Wood III's communications with Defendant regarding the divorce action. Such information is irrelevant. Outside communications relating the divorce action is immaterial as Plaintiff's duty was to best represent its client regardless of what other advice Defendant may have been seeking.
Plaintiff demands corporate information regarding Accurate. Since Defendant's counterclaim regarding Accurate is that Plaintiff failed to provide a deadline for the paying off of marital debts, and not that she sustained damages as a result of any legal advice from Plaintiff, corporate information regarding Accurate is irrelevant.
Taking into account the Court's analysis supra, any information that is not directly related to Plaintiff's claim for fees or Defendant's claim for malpractice is deemed irrelevant and not discoverable.
Accordingly, it is
ORDERED that Plaintiff's motion for commissions is denied; and it is further
ORDERED that Plaintiff's motion for further discovery is denied to the extent and along with the principals stated in this decision.
Counsel are directed to appear for a compliance conference on June 19, 2009 at 11:00 AM in room 335 at 60 Centre Street.
This memorandum opinion constitutes the decision and order of the Court.
Dated:
____________________________
HON. WALTER B. TOLUB, J.S.C.
Footnotes
Footnote 1:During their marriage,
Defendant and her former husband were involved in a venture known as Accurate Land Abstract
Company (Accurate). The corporate debts of Accurate were subject to equitable distribution
during the divorce action. Defendant claims that Plaintiff failed to include in the Settlement of
the divorce action, a deadline for Defendant's ex-husband to pay off certain corporate debts and a
failed to include a date certain for the closing of Accurate.
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