Iannucci v Kucker & Bruth, LLP

[*1] Iannucci v Kucker & Bruth, LLP 2009 NY Slip Op 52258(U) [25 Misc 3d 1223(A)] Decided on September 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2009
Supreme Court, Kings County

Robert Iannucci, et al., Plaintiffs,

against

Kucker & Bruth, LLP, Saul Bruh and Andrew Bittens, Defendants.



16155/05



For Plaintiff:

George Silva

99 Tulip Avenue

Floral Park, NY 11001

For Defendant/Third Party Plaintiff

Matthew Leis

199 Water Street

New York, NY 11038

For Third Party Defendant:

Kevin Farrelly

270 Madison Avenue New York, NY 10016

Francois A. Rivera, J.

Upon the foregoing papers, the motion by Lauren Forman, Esq. (Forman) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the third-party complaint herein is granted.

In November 2002, plaintiffs Robert Iannucci, Sonia Ewers, Clocktower Properties and Team Obsolete Promotions, Inc. retained the services of defendants Kucker & Bruh, LLP, Saul Bruh and Andrew Bittens (collectively, Kucker) with respect to the eviction of tenants residing at premises owned by the individual plaintiffs . In their complaint, plaintiffs allege, among other things, that Kucker failed to take prompt action when it learned that several tenants had abandoned the premises or had divided their leaseholds without the consent of the owners or when it became aware that the City of New York was in the process of changing the zoning status of the building. As a result of defendants' dilatory behavior, plaintiffs assert that they lost substantial rental income and incurred grossly inflated legal fees. Two years after joinder of issue, Kucker [FN1] commenced a third-party action against Forman seeking contribution and indemnification in the event of a recovery by plaintiffs in the main action. In the third-party complaint, Kucker alleges that Forman "reviewed and approved documents" and "oversaw, instructed, supervised, directed and controlled the actions of third-party plaintiffs " regarding the tenants' evictions. In an affidavit, Forman avers that, in April 2002, when she was a law school student, she was hired by plaintiffs as a legal assistant with respect to trademark work. After her admission to the New York State Bar, her position allegedly changed from legal assistant to "in-house counsel" for plaintiffs. She adds that, following defendants' retention by plaintiffs in September 2002, she never supervised or directed their work and, for much of the time, she had not yet been admitted as an attorney.[FN2] Forman argues that Kucker may not plead a claim for contribution or indemnification because they have pleaded an affirmative defense of comparative negligence in their answer to the complaint. She further maintains that a third-party claim may not be asserted against her by Kucker because plaintiffs may not sue her, their employee, pursuant to Labor Law § 193. Forman contends that, in any event, she may not be held liable for any acts committed prior to June 7, 2004 when she was admitted to the New York State Bar.

In opposition to the motion, Kucker points out that the third-party complaint alleges that Forman was plaintiffs' "legal counsel," not in-house counsel, and, therefore, her actions may not be vicariously imputed to plaintiffs and the third-party complaint is not barred by defendants' affirmative defense of comparative negligence. Because Kucker believes that Forman's arguments regarding Labor Law § 193 are irrelevant, it has not addressed them; rather, Kucker maintains that it may assert a third-party claim against Forman even if plaintiffs cannot bring a direct action against [*2]her. Kucker further argues that its third-party claim for contribution is properly pleaded since the claim is based upon Forman's negligence, not her malpractice, and the indemnification claim is viable since the third-party complaint "includes no basis for [Forman's] conclusion that [Kucker] was partially at fault for plaintiffs' damages." Insofar as Forman suggests that she cannot be held liable for acts of legal malpractice committed before June 2004, Kucker counters that Forman has failed to submit sufficient evidence to demonstrate that she was not admitted as an attorney on a date prior to June 7, 2004 and, perhaps, thereafter suspended or disbarred.

In reply, Forman confirms in an affidavit that she has never been disbarred or suspended and that her only employment since her admission to the Bar has been as a legal assistant and then in-house counsel to plaintiffs . In her memorandum of law, she repeats her contention that Kucker's negligence precludes it from asserting third-party claims for indemnification and contribution and, as an issue of law, it is irrelevant whether she was in-house or outside counsel. Forman also points out that Kucker has no need of indemnification if it is found to have been totally free of liability to plaintiffs and , if it is found to have been partially at fault, it may not assert an indemnification claim since indemnification shifts the entire loss to a party (presumably, Forman) who is fully at fault. With respect to Labor Law § 193, Forman insists that Kucker may not seek to hold her liable for acts of negligence since plaintiffs cannot do so.

Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his or her own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer (see County of Westcherster v Welton Becket Assoc., 102 AD2d 34, 46-47 [1984]). "[W]here one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent" (D'Ambrosio v City of New York, 55 NY2d 454, 462 [1982]). Since the predicate of common-law indemnification is vicarious liability without actual fault on the part of the proposed indemnitee, a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine (see Rock v Reed-Prentice Div., 39 NY2d 34 [1976]). In this case, defendants are being charged with failing to promptly take certain actions to minimize plaintiffs' losses and not merely vicariously for the actions of Forman. Thus, defendants' liability would be based upon their own participation in the acts giving rise to the loss. Alternatively, if defendants did perform their work properly, they would be free from liability irrespective of whether Forman did, in fact, cause some of the delays. In either event, defendants would be precluded from recovery against Forman on the basis of common-law indemnity (see Trustees of Columbia University in City of NY v Mitchell/Giurgola Associates, 109 AD2d 449, 454 [1985]).

With respect to Kucker's claim for contribution, it is unnecessary to consider whether Forman was an employee of plaintiffs or their outside counsel. The third-party complaint seeks contribution from Kucker pursuant to CPLR 1401. In their answer, defendants set up as an affirmative defense the negligence of Forman, among others, thus limiting plaintiffs' recovery against defendants, under the comparative negligence standard, to so much of the damages attributable to that party's conduct. Thus, Kucker's concern that it requires contribution to reach the same result is ill-founded (see Hercules Chemical Co. v North Star Reinsur. Corp., 72 AD2d 538 [1979]). Since there is, therefore, no practical necessity for Kucker to implead Frman based upon a claim for contribution, that third-party claim is likewise dismissed (see Connell v Weiss, 1985 WL 428, at 4 [1985]).

The foregoing constitutes the decision and order of this court. [*3]

E N T E R,

J. S. C. Footnotes

Footnote 1:In January 9, 2009, Forman moved for partial summary judgment. The motion was marked "submitted" on April 24, 2009. In the interim, she retained new counsel who indicates in the instant motion that the motion made by prior counsel is withdrawn without prejudice so that the court may consider her request to dismiss the third-party complaint in its entirety. Accordingly, the motion by Forman for partial summary judgment is deemed withdrawn.

Footnote 2:Forman was admitted to the Bar of the State of New Jersey in December 2003 and to the New York state Bar in June 2004.