Williams v Omrani & Taub, P.C.

[*1] Williams v Omrani & Taub, P.C. 2009 NY Slip Op 51832(U) [24 Misc 3d 1240(A)] Decided on August 25, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2009
Supreme Court, Kings County

Lowayne Williams, Plaintiff,

against

Omrani & Taub, P.C. and Fink & Platz, Defendants.



500022/08

Francois A. Rivera, J.

Upon the foregoing papers, defendant Fink & Platz (Fink) moves for an order, pursuant to CPLR 3211 (a) (1), (5), (7) and (8) dismissing the amended verified complaint. Defendant Omrani & Taub, P.C. (Omrani) also moves for an order, pursuant to CPLR 3211 (a) (1), (5) and (7) dismissing the amended verified complaint.

Background Facts and Procedural History

Plaintiff commenced the instant action by filing a summons with notice on April 14, 2008. Each defendant subsequently appeared and demanded a complaint. Plaintiff then served and filed a verified complaint, which was later amended on or about September 25, 2008.

The amended verified complaint asserts causes of action seeking damages for legal malpractice based on an underlying accident and subsequent action against, inter alia, D & J School Bus, Inc. (D & J).[FN1] On September 10, 1999, plaintiff suffered injuries when he was struck by a bus owned by D & J. As relevant to the instant motion, on December 7, 2000, plaintiff, then represented by non-party attorney Don Carlos Jr., commenced the underlying action, alleging, inter alia, that the acts and omissions of agents of D & J [*2]constituted negligence that proximately caused plaintiff's injuries.

At the time, D & J was insured by non-party Reliance Insurance Company (Reliance), which was then an insurer established under the laws of the Commonwealth of Pennsylvania. Reliance subsequently became insolvent. On May 29, 2001, the Commonwealth Court of Pennsylvania ordered that Reliance would be placed in rehabilitation. On October 3, 2001, the rehabilitation period ended, and Reliance, with claimed liabilities of over $1 billion in excess of assets, was placed into liquidation.

Thereafter, on December 17, 2003, plaintiff retained the services of Omrani to represent him in the underlying action. On January 28, 2004, Omrani filed a notice of appearance in this court, indicating that Omrani was substituted for Don Carlos Jr. as attorneys of record for plaintiff. Also, attorneys of Fink cooperated with Omrani in their representation of plaintiff, in at least once instance appearing for plaintiff in the underlying action.

The professional relationship between plaintiff and defendants subsequently ended. The parties disagree about when the attorney-client relationship between plaintiff and defendants ended; defendants assert that plaintiff's present counsel was substituted for Omrani as attorney of record in the underlying action on the date€"April 7, 2005€"of the notice of appearance [FN2] whereby plaintiff's present counsel appeared in the underlying action. Thus, reasons defendants, the attorney-client relationship terminated on (and the time period for a legal malpractice action was tolled until) April 7, 2008. Plaintiff, however, asserts that Omrani (and, by extension, Fink) claimed representation of plaintiff as late as December 20, 2007. In any event, this legal malpractice action ensued.

The amended verified complaint asserts that, in essence, plaintiff was erstwhile entitled to recover damages against D & J in the underlying action, and, therefore, plaintiff would have recovered sums from Reliance, D & J's insurer. Plaintiff asserts that in order for a potential claimant to recover against Reliance assets during liquidation, a proof of a claim had to have been filed with the "Proof of Claim Department Statutory Liquidator of Reliance Insurance Company"[FN3] by December 31, 2003. The complaint asserts that the law firm defendants were under a professional duty to timely file such a claim, but did not. The complaint further asserts that, consequently, "[p]laintiff has lost his right to recover in damages from certain responsible parties"[FN4] and defendants are thus liable for legal malpractice. Both defendants now move to dismiss the complaint.

Arguments of Fink in Support of Motion to Dismiss

Fink first argues that its motion to dismiss should be granted pursuant to CPLR 3211 (a) (8). In support, Fink claims that this court lacks personal jurisdiction over it [*3]because plaintiff never properly served it with process. Fink notes that plaintiff's process server avers that he left a copy of the subject summons with notice with Kiola Hurry, a Fink receptionist. Fink claims, however, that since it is organized as a law firm partnership, leaving the papers with Hurry is insufficient to comply with the service requirements of CPLR 310. Additionally, Fink argues that plaintiff did not comply with CPLR 308 (2), which requires not only delivery of process to a person of suitable age of discretion, but also mailing the process. Fink avers that process was never mailed to it; as such, concludes Fink, plaintiff never properly served it and, therefore, this court lacks personal jurisdiction over it.

Fink next asserts that its motion to dismiss should be granted pursuant to CPLR 3211 (a) (1) and (5). In support, Fink notes that the applicable limitations period for a legal malpractice claim is three years from the date of the alleged malpractice, tolled by continued representation. Here, claims Fink, as evidenced by the above-referenced notice of appearance, Omrani (and, by extension, Fink), did not represent plaintiff after April 7, 2005. Thus, reasons Fink, the instant action could have been timely commenced until April 7, 2008. Moreover, Fink claims that plaintiff's present counsel actually represented plaintiff earlier€"Fink provides a copy of a demand for discovery and inspection, dated February 15, 2005, by plaintiff's present counsel.[FN5] In any event, Fink argues that since the instant action was commenced on April 14, 2008, it is untimely and should be dismissed pursuant to CPLR 3211 (a) (5). Also, Fink asserts that the copies of the February 15, 2005 demand for discovery and inspection and April 7, 2005 notice of appearance constitute documentary evidence, sufficient to support an order dismissing the action pursuant to CPLR 3211 (a) (1).[FN6]

Lastly, Fink asserts that its motion to dismiss should be granted pursuant to CPLR 3211 (a) (7). In support, Fink first claims that the allegations of malpractice contained in the amended verified complaint are vague and conclusory and thus insufficient to support a legal malpractice cause of action. In any event, claims Fink, the pleading does not allege that the alleged malpractice proximately caused any damages; to the contrary, the pleading does not state the disposition of the underlying action. Thus, reasons Fink, there is no allegation that plaintiff suffered any damage at all. Fink concludes that since plaintiff has not alleged that he would have recovered an ascertainable amount but for the alleged malpractice, the complaint should be dismissed pursuant to CPLR 3211 (a) (7).[FN7]

Arguments of Omrani in Support of Motion to Dismiss

Omrani argues that plaintiff has not pleaded facts that demonstrate any acts or [*4]omissions of defendants' agents that did not meet the standard of reasonably competent legal representation. Omrani further argues that even if defendants and their agents were negligent, plaintiff has not pleaded facts sufficient to show causation as required for a sustainable legal malpractice cause of action€"in other words, that plaintiff would have recovered assets "but for" defendants' alleged failure to provide reasonable legal representation. Specifically, they note that although Omrani was retained on December 17, 2003, outgoing counsel (Don Carlos Jr.) did not turn over his file for the underlying action to Omrani until after March 17, 2004.[FN8] Omrani reasons that defendants could not have known of the December 31, 2003 Reliance proof of claim deadline€"let alone have complied with it€"until after the file was transferred.

Moreover, Omrani maintains that plaintiff has not pleaded facts that demonstrate that, assuming a timely proof of claim was filed, plaintiff would have recovered any sum from an insolvent carrier. Omrani characterizes plaintiff's assertion to the contrary as hope and speculation not supported by fact. For these reasons, Omrani concludes that plaintiff has not sufficiently pleaded a legal malpractice cause of action, and the amended verified complaint should therefore be dismissed.

Omrani additionally asserts that the instant action is time-barred and should be dismissed on that ground. Omrani notes that an action for legal malpractice must be commenced within three years of the final date of representation. Here, claims Omrani, plaintiff's present counsel was substituted for Omrani on April 12, 2005, as demonstrated by a notice of appearance filed on that date. The instant action, notes Omrani, was not commenced until April 14, 2008€"two days after the applicable limitation period had expired. Omrani concludes that the instant action should thus be dismissed as time-barred.

Arguments of Plaintiff in Opposition

In opposition, plaintiff first argues that the instant action is not time-barred, and asserts that Omrani and his present attorney entered into a referral agreement that was in effect beyond April 14, 2005. Thus, reasons plaintiff, Omrani represented plaintiff after that date, and the instant legal malpractice action is therefore timely filed on April 14, 2008. In the alternative, plaintiff argues that the actual substitution of counsel did not occur until April 14, 2005. In support of this argument, plaintiff submits a copy of an "e-law" website printout, showing that the substitution notice of appearance and consent to change attorney were filed in this court on April 14, 2005. As above, plaintiff asserts that the instant legal malpractice action is therefore timely filed on April 14, 2008.

Plaintiff also asserts that he has sufficiently pleaded a legal malpractice cause of action. He claims that there is no reasonable dispute that he and defendants were in an attorney-client relationship. He further claims that "defendants have offered no defense or explanation for their failure to file a proof of claim against Reliance Insurance [*5]Company prior to the . . . deadline"[FN9] and, consequently, plaintiff has "lost [the] opportunity to collect from a responsible party".[FN10]

Discussion

CPLR 3211 (a) (1)

"On a motion to dismiss based upon documentary evidence, dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Klein v Gutman, 12 AD3d 417, 418 [2004]; CPLR 3211 [a] [1]; see also Saxony Ice Co., Div. of Springfield Ice Co., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445 [2006]). A complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (Well v Rambam, 300 AD2d 580, 581 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162 [1997], cert. denied 522 US 967 [1997]). However, in considering a motion to dismiss, the plaintiff's pleadings must be given their most favorable intendment (Arrington v New York Times Co., 55 NY2d 433, 442 [1982]), and the plaintiff's allegations which are contrary to the documentary evidence must be accepted (Scheller v Martabano, 177 AD2d 690 [1991]).

Here, defendants rely on documentary evidence that allegedly conclusively demonstrates that defendants' representation of plaintiff ended prior to April 12, 2005 (rendering the instant action untimely). However, this court must accept the sworn statement of plaintiff's current counsel, who stated that pursuant to a referral arrangement, Omrani (and, by extension, Fink), continued to represent plaintiff until December 20, 2007, when present counsel for plaintiff remitted a letter directing Omrani to cease and desist communications with plaintiff. Since the documents relied on by defendants do not conclusively establish that defendants "completed [their] ongoing representation concerning the matter out of which the malpractice claim arises" (Pellati v Lite & Lite, 290 AD2d 544, 545 [2002], citing Shumsky v Eisenstein, 96 NY2d 164 [2001]; Weiss v Manfredi, 83 NY2d 974 [1992]), and therefore, that the continuous representation toll did not extend until after April 14, 2005. Thus, the instant motions to dismiss are denied insofar as grounded on CPLR 3211 (a) (1).

CPLR 3211 (a) (5)

Similarly, the court denies the instant motions insofar as they are based on the limitations period defense contained CPLR (a) (5). A timely action for legal malpractice must be commenced within three years of the date of the alleged malpractice; the period is tolled until the termination of the attorney-client relationship (CPLR 214; Weiss v Manfredi, 83 NY3d 974 [1994]). As stated above, the court must accept as true the contention that defendants continued to represent plaintiff in the underlying action until well-after April 14, 2005. Since the instant action was commenced in April 14, 2008, i.e. [*6]within three years of the tolled date, it was timely commenced. Therefore, the instant motions are denied on the ground of CPLR 3211 (a) (5).

CPLR 3211 (a) (7)

In the context of a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must "liberally construe the complaint . . . and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion" (511 W. 232nd Owners Corp. v Jennifer Realty Co.,98 NY2d 144, 152 [2002]; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87 [1994]). The court must also "accord [the] plaintiff[] the benefit of every possible favorable inference" (511 W. 232nd Owners Corp., 98 NY2d at 152). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (511 W. 232nd Owners Corp., 98 NY2d at 152, quoting Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]). However, if the facts alleged in the pleading do not fit any cognizable legal theory, the complaint must be dismissed (see generally Oszustowicz v Admiral Ins. Brokerage Corp., 49 AD3d 515, 516 [2008]).

The Second Department of the Appellate Division recently stated in Kluczka v Lecci (63 AD3d 796 [2009]) that:

"[i]n order to prevail in an action to recover damages 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, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Malik v Beal, 54 AD3d 910, 911 [2008]; Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2008]). To establish the element of causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Wray v Mallilo & Grossman, 54 AD3d 328, 329 [2008]; Carrasco v Pena & Kahn, 48 AD3d at 396). The failure to demonstrate proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent (see Leder v Spiegel, 31 AD3d 266, 267-268 [2006], affd 9 NY3d 836 [2007])" (id. at 797).

Here, plaintiff cannot show either that defendants failed to exercise reasonable attorney skill and knowledge or the requisite causation. First, although plaintiff conclusorily states that "defendants have offered no defense or explanation" for their failure to file the Reliance proof of claim, the court notes that there is in fact a defense and explanation€"the failure of outgoing counsel Don Carlos Jr. to transfer the subject file to Omrani until after March 17, 2004. Indeed, given that Omrani (and, by extension, Fink) did not possess the file before December 31, 2003, it would have been difficult, if [*7]not impossible, for Omrani to file the subject proof of claim before the deadline. Thus, plaintiff has failed to plead facts that demonstrate defendants breached the duty of professional legal representation.

Assuming, arguendo, that defendants did breach such a duty, the amended verified complaint does not plead facts that adequately support the causation requirement. An "essential element" of a legal malpractice action is "actual damages, i.e., the injuries . . . suffered and their value" (Lindenman v Kreitzer, 7 AD3d 30, 34-35 [2004], citing Mendoza v Schlossman, 87 AD2d 606, 607 [1982]). Also, conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action (Pellegrino v File, 291 AD2d 60 [2002]). If the complaint does not plead actual and ascertainable damages proximately caused by the alleged negligence, it must be dismissed (Wald v Berwitz, 62 AD3d 786 [2009]; cf. Douglas v Dashevsky, 62 AD3d 937 [2009] [allegation that defendant attorney advised plaintiff client not to seek disability benefits from employer's insurance carrier sufficient to state claim for legal malpractice]).

Here, plaintiff cannot assert with any certainty (and thus does not plead) that he would have recovered any sums from the assets of a bankrupt insurer, let alone sums in excess of what he could, can or will recover from D & J or the successor-in-interest of Reliance.[FN11] Indeed, plaintiff merely conclusorily asserts that he would have recovered the excess from an insolvent insurer. Given that the complaint must plead "actual and ascertainable damages" to survive dismissal (Kluczka, 63 AD3d at 797), plaintiff's assertions are insufficient.

In sum, even affording plaintiff all reasonable inferences (see e.g. Malik v Beal, 54 AD3d 910, 911 [2008]; Simmons v Edelstein, 32 AD3d 464, 465 [2006]; Manfro v McGivney, 11 AD3d 662, 663 [2004]) the amended verified complaint does not allege facts demonstrating either that the law firm defendants and their agents failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the alleged breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; Holschauer v Fisher, 5 AD3d 553, 554 [2004]). For these reasons, the complaint is dismissed pursuant to CPLR 3211 (a) (7).

CPLR 3211 (a) (8)

The court denies the motion of Fink insofar as it seeks an order dismissing the action against it for lack of jurisdiction. It is undisputed that Fink is a partnership engaged in the practice of law. On August 18, 2009, this court held a traverse hearing concerning whether Fink was properly served. On that date, this court found that the licensed process serve left the pleadings with Ms. Hurry, Fink's receptionist at Fink's [*8]place of business, namely, the law firm. The court credits the process server's testimony that the receptionist accepted the pleadings and represented that she was authorized to accept the pleadings on behalf of Fink. The process server was unaware that Fink was a partnership.

Nevertheless, pursuant to CPLR 310(a), personal service on an individual person who is a partner effectuates service on the partnership. Furthermore, personal service on a partner is not limited to the methods set forth in CPLR §310 but rather includes all personal service methods set forth in CPLR §308 (see generally (Foy V 1120 Ave of Ams Assocs., 223 AD2d 232[2-Dept 1996]).

Here, the process server delivered the pleading unwrapped to the receptionist after she represented that she was authorized to receive service on behalf of the partners. The receptionist, on the other hand, had no clear recollection of the incident of service. Although one partner testified on behalf of Fink that he was not present when the papers were served, he also testified that he did not discuss the service of the pleadings with the receptionist, or any staff member anytime before giving his testimony. The other partner did not testify and therefore did not establish that he was out of the office when service was effectuated. The court finds that service was effectuated on the individual partner by service on the partnership's receptionist who represented that she had authority to accept service (see generally Jones v. Nossoughi, 147 Ad2d 447 [2-Dept 1989]). As such, the service on the partnership was proper and in accordance with CPLR §310(a).

Conclusion

For the above reasons, the court grants the motions of defendants Omrani & Taub, P.C. and Fink & Platz, only insofar as based on CPLR 3211 (a) (7).[FN12] The amended verified complaint is dismissed. The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Defendants advance arguments concerning a second underlying action; however, there is no indication that plaintiff's present claims refer to this second underlying action. Indeed, the arguments submitted by plaintiff in opposition to the instant motion concerns only the action against, inter alia, D & J.

Footnote 2: Exhibit E to Notice of Motion of Defendant Fink & Platz.

Footnote 3: Amended Verified Complaint, ¶ 16.

Footnote 4: Amended Verified Complaint, ¶ 19.

Footnote 5: Exhibit F to Notice of Motion of Defendant Fink & Platz.

Footnote 6: The Affidavit of Harlan A. Platz, a Fink partner, avers substantially to these contentions.

Footnote 7: Also, Fink asserts that plaintiff's claims are frivolous, and that Fink is therefore entitled to costs and sanctions.

Footnote 8: On that date, by order of this court in the underlying action, Don Carlos Jr. was directed to turn the file over to Omrani.

Footnote 9: Affirmation in Opposition, ¶ 27.

Footnote 10: Affirmation in Opposition, ¶ 28.

Footnote 11: The court notes that the underlying action is pending. Also, the court notes that when an action concerns an insolvent insurance carrier, it behooves a plaintiff to claim pursuant to Article 74 of the Insurance Law (see also Insurance Law §§ 7604, 7607, 7608).

Footnote 12: The court, in its discretion, declines to order costs or impose sanctions (see e.g. S & B Petroleum, Inc. v Gizem Realty Corp., 8 AD3d 550 [2004]; see also 22 NYCRR 130-1.1).