Recine v Margolis

[*1] Recine v Margolis 2009 NY Slip Op 51872(U) [24 Misc 3d 1244(A)] Decided on August 13, 2009 Supreme Court, Nassau County Woodard, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009
Supreme Court, Nassau County

Phyllis A. Recine, Steven M. Del Vecchio and Del Vecchio & Recine, LLP, Plaintiffs,

against

Amy Margolis, Defendant.



020327/08

Michele M. Woodard, J.

In motion sequence number one, the Plaintiffs, Phyllis A. Recine, Steven M. Del Vecchio and Del Vecchio & Recine, LLP move pursuant to CPLR § 3212 awarding summary judgment on the complaint as to the issue of liability.

In motion sequence number two, the Defendant, Amy Margolis, cross-moves for an order granting the following relief: an order pursuant to CPLR § 602 consolidating the within action with the action entitled Recine v Adler, bearing Index No. 021035/08; for an order pursuant to CPLR § 3211 (a)(1) and (7) dismissing the within complaint; for an order pursuant to CPLR § 3212 granting summary judgment and dismissing the within complaint; and for an order denying the Plaintiffs' motion for summary judgment.

The Plaintiffs herein previously represented the Defendant in a matrimonial matter during the period of September 2006 through August of 2007 (see Affidavit in Support at ¶¶ 4, 8, 9, 10; see also Exh. A). In accordance with said representation, a "Retainer Agreement" and "Consent to Submit Fee Dispute to Arbitration" were signed by the Defendant on September 27, 2006 and a "Statement of Client's Rights and Responsibilities" was signed by the Defendent on September 28, 2006 (id. at Exhs. D, E). In August 2007, Ms. Margolis discharged the Plaintiffs and retained the firm of Schlissel, Ostrow and Karabatos, LLC (id. at ¶¶4, 9,10). A "Consent to Change Attorney" was executed by the Plaintiffs, who also asserted a retaining lien against the Defendant's matrimonial file (id. at ¶10). After discussions between the Defendant's incoming and outgoing matrimonial counsel, the Plaintiff agreed to accept a small reduction in the amount of legal bills which remained outstanding, in exchange for which the Plaintiffs would surrender the Margolis file to Defendant's new counsel (id. at ¶12). In furtherance thereof, on or about August 30, 2007, documents memorializing this agreement were prepared and sent to Defendant's new counsel (id. at ¶13). Ms. Margolis refused to sign said documents prompting the Plaintiffs to file a Request for Fee Arbitration on September 20, 2007 (id. at ¶15; see also Exh. G).

Subsequently, the Defendant hired the firm of Stern, Adler and DeRossi, LLP to represent [*2]her in connection with the fee arbitration instituted by the Plaintiffs (see Hammerman Affirmation in Opposition to Motion and in Support of Cross-Motion at Exh. L at ¶8). By letter dated October 3, 2007, Stern, Adler and DeRossi informed the Office of Court Administration of their representation of Ms. Margolis and that she was not consenting to arbitrate the fee dispute (see Affidavit in Support at Exh. H). Said letter characterized the "Consent to Submit Fee Dispute to Arbitration" as both a nullity and illegal per se (id.). Notwithstanding the foregoing, the fee arbitration was assigned to a panel and a hearing was scheduled to take place or March 3, 2007 (id. at ¶¶24, 25).

In the interim, on or about January 11, 2008, Stern, Adler and DeRossi commenced a legal malpractice action on behalf of Ms. Margolis and against the named Plaintiffs herein (id. at ¶30; see also Exh. J)[FN1]. Additionally, Ms. Margolis moved by Order to Show cause within the context of the pending matrimonial action which sought, inter alia, to compel production of the matrimonial file which was still in possession of Del Vecchio and Recine (id. at ¶31 ). In support of that application, matrimonial counsel argued that as Del Vecchio and Recine would have to produce a copy of the file during the discovery phase of legal malpractice action, the firm would not be prejudiced by releasing the file in the divorce litigation (id. atExh. K).

On March 3, 2008, the day upon which the arbitration hearing was scheduled, Ms. Margolis, through her attorney's, moved by order to show cause and obtained a temporary injunction staying the hearing (id. at Exh. L). On the return date of that application, neither Ms. Margolis nor her counsel appeared and the temporary restraining order expired (id. at ¶39). Thereafter, and by order dated April 9, 2008, the application was formally denied based upon the failure to provide an affidavit attesting that the moving papers were served on all parties (id. at ¶40; see also Exh. O). The fee arbitration hearing ultimately convened on April 10, 2008 at which time the Plaintiffs were awarded $39,548.14 plus interest, which award was thereafter confirmed on May 9, 2008 (id. at ¶¶42, 44; see also Exhs. P, Q).

The Plaintiffs subsequently commenced the within action against Ms. Margolis sounding in malicious prosecution and abuse of process and now move for summary judgment thereon as to the issue of liability.

In support of their application for summary judgment, the Plaintiffs contend that they are entitled to summary judgment on the cause of action sounding in malicious prosecution as the record evidence demonstrates that the Defendant acted with malice in commencing the legal malpractice action without having probable cause to do so, that such action was ultimately terminated on their behalf, and that they have incurred special damages as a result of the Defendant having commenced the law suit (id. at ¶¶54, 56, 57, 58, 60, 64, 68, 69, 70). The Plaintiffs assert that the temporary restraining order obtained by Ms. Margolis during the legal malpractice action directly prevented the Plaintiffs from timely exercising their contractual rights to submit the fee dispute to arbitration (id. at ¶¶38, 39, 68; see also Exh. A at ¶21). The Plaintiffs additionally argue that as a result of the commencement of the legal malpractice action they have also incurred the following damages: "injury to their reputation, embarrassment, loss of time, [*3]loss of income, anxiety, mental distress, mental suffering, expenses incurred in the defense of the action, and being required to report said action to its insurance carrier thereby becoming a permanent part of Plaintiffs' records" (id. at Exh. A at ¶24).

As to abuse of process, the Plaintiffs argue that the summons and complaint in the malpractice action, the temporary restraining order issued in connection thereto, as well as the order to show cause interposed within the context of the matrimonial action, were all employed by the Defendant to obtain the improper collateral objectives of depriving the Plaintiffs of legal fees to which they were entitled and preventing them from utilizing the legal remedies available to procure same (id. at ¶¶31, 32, 73, 74, 75; see also Exh. A at ¶¶28, 29, 34, 38). As articulated in the complaint, the Plaintiffs allege that they have suffered the following special damages: "injury to their reputation, embarrassment, loss of time, loss of income, anxiety, mental distress, mental suffering, expenses incurred in the defense of the legal process issued by Defendant, and delay in the lawful adjudication of their claims in fee arbitration" (id. at Exh. A at ¶39).

The Defendant opposes the application and cross-moves seeking dismissal of the within complaint (see Affirmation in Opposition to Motion and in Support of Cross-Motion at p.1). Counsel for the Defendant argues, inter alia, that the evidence as adduced herein establishes that Ms. Margolis acted without malice and on advice of counsel in commencing the underlying legal malpractice action and accordingly the within action sounding in malicious prosecution must be dismissed (id. at pp. 18, 19, 20, 23, 24, 25, 26). Counsel provides the affidavit of Ms. Margolis, who avers "I was not happy with representation I received from the Plaintiff" and "upon the advice of my attorneys Stern, Adler & De Rossi, LLP, I believed that I had valid legal grounds for an action" against the Plaintiffs (id. at Exh. L at ¶¶4, 10). Ms. Margolis further states that "All proceedings taken on my behalf during that action were based on the advice of my attorneys Stern, Adler & DeRossi, LLP" (id. at ¶11).

Counsel additionally argues that the Plaintiffs have failed to demonstrate that they have suffered special damages and that the imposition of the temporary restraining order did not interfere with the Plaintiffs' persons or property, as is required to prove said damages, but merely delayed the fee arbitration hearing (id. at pp. 26, 28, 29, 30).

As to those causes of action in the complaint sounding in abuse of process, counsel argues that Ms. Margolis was operating under the advice of her legal counsel and that there is no evidence that she proceeded with the legal malpractice action without justification (id. at pp. 32). Counsel further argues, that the respective goals of the commencement of the legal malpractice action and the interposition of the order to show cause in the matrimonial action were not to achieve improper collateral objectives, but were rather employed to obtain the legitimate ends of obtaining a refund of legal fees, the turning over of a file and avoiding arbitration (id. at p. 33).

It is well settled that a the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d [*4]1065 [1979]). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR § 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092 [1985]).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, 49 NY2d 557 [1980], supra). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian v Donato, 141 AD2d 513 [2d Dept 1998]). Conclusory allegations are insufficient to defeat the application and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings (Toth v Carver Street Associates, 191 AD2d 631 [2d Dept 1993]). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957], supra).

To sustain a cause of action sounding in malicious prosecution, the plaintiff must demonstrate the following: [1] the initiation of a proceeding against the plaintiff by the Defendant; [2] termination of the proceeding in favor of the plaintiff; [3] an absence of probable cause for the institution of the prior proceeding; [4] actual malice on the part of the Defendant in bringing the prior proceeding to achieve something other than the adjudication of the claim; [5] and special damages (Colon v City of New York, 60 NY2d 77 [1983]; Engel v CBS, Inc., 93 NY2d 195 [1999]; Nardelli v Stamberg, 44 NY2d 500 [1978]; Hornstein v Wolf, 109 Ad2d 129 [2d Dept 1985]).

Within this context, probable cause is comprised of particular factual circumstances which would lead a reasonably prudent person acting thereunder to conclude that the Plaintiffs were guilty of the wrongdoing as alleged in the complaint (Colon v City of New York, 60 NY2d 77 [1983], supra). It has been held that a party possesses probable cause and thus is insulated from a malicious prosecution action, if, in commencing the prior action, the party did so upon the advice of counsel (Weidlich v Weidlich, 177 Misc. 246 [Sup Ct, New York County 1941]). Additionally, a presumption of probable cause is created where a temporary restraining order has been issued by a court of appropriate jurisdiction during the pendency of the prior proceeding where the court had to necessarily evaluate the record evidence to determine if temporary injunctive relief was indeed warranted (Hornstein v Wolf, 67 NY2d 721 [1986]).

With respect to the requisite showing of special damages, the Plaintiffs must demonstrate that the Defendant's institution of the prior proceeding served as "a highly substantial and identifiable interference" with person, property, or business and that they have been forced to suffer "some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195 [1999], supra). Such a showing of special damages by the Plaintiffs serves to protect the important public policy that "all persons should freely resort to the courts for redress of wrongs" and that the law should protect such litigants "when they act in good faith and upon reasonable grounds in commencing either a civil or criminal prosecution" (Burt v Smith, 181 NY 1 [1905]).

In the instant matter the court finds that the Plaintiffs have failed to demonstrate their entitlement to judgment as a matter of law with respect to the cause of action sounding in malicious prosecution (Alvarez v Prospect Hospital, 68 NY2d 320 [1986], supra). In support of [*5]their application, the Plaintiffs offer only conclusory allegations that Ms. Margolis commenced the legal malpractice action without probable cause (Colon v City of New York, 60 NY2d 77 [1983], supra). Moreover, a review of defense counsel's affirmation and the annexed affidavit of the Defendant, which are offered in opposition to the Plaintiffs' application and in support of the Defendant's cross-motion, clearly reveals that Ms. Margolis commenced the legal malpractice action upon the advice of counsel and based upon such advice held a reasonable belief that the Plaintiffs were guilty of the allegations contained in that complaint (Weidlich v Weidlich, 177 Misc 246 [Sup Ct., New York County 1941], supra). Additionally, Plaintiffs herein have failed to overcome the presumption of probable cause created by the temporary restraining order issued by Justice Mahon during the pendency of the legal malpractice action (Hornstein v Wolf, 67 NY2d 721 [1986], supra). Finally, the Court notes that the evidence as adduced herein demonstrates that the damages sustained by the Plaintiffs were incidental to defending the legal malpractice action and the temporary restraining order only temporarily delayed but did not substantially interfere with their right to fee arbitration (Engel v CBS, Inc., 93 NY2d 195 [1999], supra).

A cause of action sounding in abuse of process embodies the following elements: [1] regularly issued process, civil or criminal, compelling performance or forbearance of some act; [2] the person activating the process was moved by an ulterior purpose to do harm, without economic or social excuse or justification; [3] the person activating the process sought some collateral advantage or corresponding detriment to the plaintiff that is outside the legitimate ends of the process and; [4] and actual or special damages (Curiano v Suozzi, 62 NY2d 113 [1984]; Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Ass'n., Inc., 38 NY2d 397 [1975]). Having carefully reviewed the record, the Court again finds that the Plaintiffs have failed to demonstrate their entitlement to judgment as a matter of law (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957], supra; Alvarez v Prospect Hospital, 68 NY2d 320 [1986], supra; Zuckerman v City of New York, 49 NY2d 557 [1980], supra).

In the instant matter, the process which forms the basis of the causes of action contained in the complaint are the summons and complaint in the legal malpractice action, the temporary restraining order in relation thereto and the order to show cause served within the matrimonial action. Here, the Plaintiffs have not demonstrated that Ms. Margolis employed such process without justification (Curiano v Suozzi, 62 NY2d 113 [1984], supra). As noted above, the affirmation of Defendant's counsel and the affidavit of the Defendant clearly evidence that with respect to the legal malpractice action and the proceedings attendant thereto, Ms. Margolis acted specifically under the advice and direction of her attorneys. As to the matrimonial action, the order to show cause to which Plaintiffs refer was brought on behalf of Ms. Margolis by her matrimonial counsel.

Based upon the foregoing , the motion interposed by the Plaintiffs, Phyllis A. Recine, Steven M. Del Vecchio and Del Vecchio & Recine, LLP pursuant to CPLR § 3212 awarding summary judgment on the complaint as to the issue of liability is hereby denied (Sequence No.001) and that branch of the cross-motion interposed by the Defendant, Amy Margolis, for an order for an order pursuant to CPLR § 3212 granting summary judgment and dismissing the within complaint is hereby granted (Sequence #002). In light of the foregoing, that branch of the [*6]Defendant's cross-motion for an order pursuant to CPLR 602 consolidating the within action with the action entitled Phyllis A. Recine, Steven M. Del Veccchio and Del Vecchio & Recine LLP v Steven M. Adler, Janet M. Stern, Mario J. DeRossi and Stern, Adler & DeRossi, LLP, bearing Index No. 021035/08 is hereby denied as moot.

All applications not specifically addressed herein are deemed denied.

This constitutes the Decision and Order of the Court.

DATED:August 13, 2009

Mineola, NY 11501

ENTER:

HON. MICHELE M. WOODARDJ.S.C. Footnotes

Footnote 1: On July 3, 2008, counsel representing the Plaintiffs in the legal malpractice action moved for dismissal thereof. By order dated July 25, 2008, the Honorable Roy S. Mahon granted the application, which was unopposed by counsel for Ms. Margolis (see Affidavit in Support at Exh. U).