Nelson v Roth

[*1] Nelson v Roth 2009 NY Slip Op 52849(U) Decided on December 4, 2009 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2009
Supreme Court, Kings County

Quadasia Nelson, an infant by her mother and natural guardian, CRYSTAL NELSON, and CRYSTAL NELSON, individually, Plaintiffs,

against

Pamela S. Roth, Defendant.



13435/08

Sylvia O. Hinds-Radix, J.

Upon the foregoing papers, the motion by defendant/third-party plaintiff Pamela S. Roth (Roth) for an order "reinstating" her cause of action for legal malpractice against third-party defendant Maurice Sieradzki, compelling him to serve an answer and disqualifying him as counsel for plaintiffs Quadasia Nelson, an infant by her mother and natural guardian, Crystal Nelson, and Crystal Nelson, individually, is, in all respects, denied and the cross motion by third-party defendant Maurice Sieradzki (Sieradzki) for leave to renew his prior motion for an order dismissing the third-party complaint pursuant to CPLR 3211(a) (7) is granted and, upon renewal, the second cause of action therein for "contribution/indemnification" is dismissed, except to the extent that it sets forth a claim for contribution predicated upon the liability of Roth to the infant-plaintiff.

On January 24, 2002, Quadasia Nelson and her alleged guardian, Bonnie White, retained Roth, an attorney, to represent them regarding a claim based upon an injury suffered by the infant on January 15, 2002 in front of premises owned by the New York [*2]City Housing Authority (NYCHA). On November 18, 2005, Roth purportedly served a notice of claim upon the City of New York and NYCHA. On September 14, 2006, Roth allegedly commenced a negligence action against the City of New York and NYCHA in which Bonnie White was designated as the "natural guardian and godmother" of the infant plaintiff.

In this action, plaintiffs allege that Roth committed legal malpractice in that, among other things, the notice of claim was untimely served and Bonnie White was not the "natural guardian" of Quadasia Nelson as indicated in the notice of claim. Following service of the complaint herein, Roth commenced a third-party action against Sieradzki, an attorney retained by Crystal Nelson after Roth was discharged as counsel. In the third-party complaint, Roth asserted causes of action for legal malpractice and for "contribution/indemnification." Roth alleged that, at the time he was retained by plaintiffs, Sieradzki knew that a notice of claim had not been properly served upon NYCHA, but that he failed to seek leave to file a late notice of claim.

In his prior motion, Sieradzki asserted that there was never an attorney-client relationship between him and Roth and, therefore, the third-party claim for malpractice was without merit. Insofar as the claim for "contribution/indemnification" was concerned, Sieradzki maintained that, by the time plaintiff retained him, the claim against NYCHA was time-barred and, consequently, he could not have committed acts of malpractice that harmed plaintiffs any further.

In her prior cross motion, Roth contended that the complaint against her should be dismissed because there was never an attorney-client relationship between plaintiffs and defendants. With respect to Sieradzki's motion, Roth argued that a motion for leave to serve a late notice of claim could still be made by plaintiffs and, therefore, her third-party complaint had merit. Roth added that, inasmuch as Sieradzki is guilty of the same malpractice for which he sought to hold defendant liable, he should be disqualified as counsel herein.

In its decision and order dated March 10, 2009, this court found that an attorney-client relationship existed between Roth and the infant plaintiff and, therefore, Roth's cross motion was denied. Because the court also found that the infant's ability to pursue her claim was not foreclosed by the actions of Bonnie White or Roth, it concluded that an application for leave to file a late notice of claim on behalf of the infant would still be timely and, consequently, that it could not find, as a matter of law, that Roth's omissions, if any, ultimately harmed plaintiffs or that Sieradzki did not exacerbate that harm. Therefore, the branch of the cross motion which sought dismissal of Roth's third-party claim for "contribution/indemnification" was denied. However, Roth's third-party claim sounding in legal malpractice was dismissed in the absence of evidence that there was ever an attorney-client relationship between Roth and Sieradzki.

In the instant motion, Roth explains that Sieradzki "is still in this case for indemnification and contribution," that he has not interposed an answer to the third-party complaint and that he should be compelled to do so. Roth further notes that, following [*3]this court's order of March 10, 2009, Sieradzki moved for leave to file a late notice of claim on behalf of plaintiffs in the Supreme Court, New York County, but the application was denied by a judge who "went out of his way to excoriate the application." Given the alleged additional malpractice committed by Sieradzki in seeking leave to file a late notice of claim, Roth argues that her third-party claim for legal malpractice, which had been dismissed pursuant to this court's order of March 10, 2009, should be "reinstated." Roth additionally asserts, albeit briefly and without explanation, that Sieradzki (who represents plaintiffs herein) should be disqualified as their counsel.

In his cross motion and in opposition to the instant motion, Sieradzki relates that he was retained by plaintiffs in February 2008 and that the underlying negligence action was "dead on arrival" because of Roth's malpractice. In seeking leave to renew his prior dismissal motion, Sieradzki relies on "material facts that were not known at the time of [the] original motion to dismiss"; namely, that, subsequently, an application for leave to file a late notice of claim was made and was denied on the basis that the application was untimely.[FN1] In view of the denial of the application despite his "best efforts," Sieradzki argues that plaintiffs suffered actual harm as a result of Roth's malpractice and, consequently, Roth was not free from fault and may not assert a claim for indemnification against him. Therefore, he seeks leave to renew his prior motion and dismissal of Roth's third-party claim for indemnification. With respect to her claim for contribution, Sieradzki contends that he did not breach any duty to the infant since the underlying action was "dead on arrival" when he was first retained. Insofar as Roth's motion is concerned, he faults Roth for failing to explain what matters of fact or law were overlooked or misapprehended by this court in dismissing her third-party cause of action for legal malpractice. He also points out that he has served an answer to the third-party complaint (annexed as Exhibit "C" to the cross motion) and that Roth "has asserted nothing more than the one conclusory and unsupported statement in support of her request for relief to disqualify [him]." He further notes that Roth sought the same relief in her prior cross motion, "which was denied in its entirety . . . in the order dated March 10, 2009."

In opposition to the cross motion, Roth suggests that Sieradzki has erred in seeking leave to renew by way of motion, rather than by Order to Show Cause. Assuming the cross motion had been properly made, Roth argues that Sieradzki has not set forth "new facts" that would change the prior determination or a justification for his failure to present [*4]such facts on the prior motion. She continues to insist that his half-hearted application for leave to file a late notice of claim demonstrates Sieradzki's continuing malpractice. Roth adds that Sieradzki "cannot be a party and counsel for a party in this action," although she does not further explain how the alleged conflict of interest warrants disqualification.

In reply, Sieradzki cites CPLR 2221 (a) to support his contention that his cross motion is "procedurally sound." With respect to the application for leave to file a late notice of claim - - - the "new fact" referred to in seeking leave to renew - - - Sieradzki argues that the denial of such relief was supported by legal reasoning, not a critique of his writing style. Sieradzki also suggests that he did not initially seek leave to file a late notice of claim because the time within which to do so had expired, but he ultimately sought such relief, however "futile" the request, because it was referred to in this court's order of March 10, 2009.

In seeking to "reinstate" her third-party cause of action for legal malpractice, Roth suggests that Sieradzki's poor handling of the application for leave to serve a late notice of claim "contains even more malpractice then [sic] when he had failed to make the application at all." If Roth's request is construed as one for leave to reargue her prior cross motion, such request is without merit since she has not shown (or even alleged) that this court overlooked or misapprehended any matter of fact or law (see CPLR 222 [d] [2]). If taken as an application for leave to renew, her request for relief is likewise lacking in merit since the "new facts" alleged - - - the additional malpractice evidenced in the application for a late notice of claim - - - would not change this court's prior determination which was based upon its finding of an absence of an attorney-client relationship between her and Sieradzki.

In its prior order, this court indicated, in a footnote, that consideration of the issue of disqualification would be premature in the absence of a determination regarding the viability of an application to file a late notice of claim since the granting of such application would render Roth's remaining "contribution/indemnification" claim and the professed need for disqualification moot. Because plaintiffs' application for leave to file a late notice of claim has been denied, the issue of disqualification may now be addressed.

A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valid right which should not be abridged absent a clear showing that disqualification is warranted (see Olmoz v Town of Fishkill, 258 AD2d 447 [1997]). The party seeking to disqualify a law firm or an attorney bears the burden on the motion (see Solow v Grace & Co., 83 NY2d 303 [1994]). Whether or not plaintiffs should (on their own) consider retaining new counsel, Roth has failed to demonstrate that Sieradzki's testimony, if called to testify, would be prejudicial to plaintiffs (see Ansonia Associates Ltd. Partnership v Public Service Mut. Ins. Co., 277 AD2d 98, 99 [2000]; 22 NYCRR § 1200.21 [d]). Therefore, that branch of the motion which seeks to disqualify plaintiffs' attorney as counsel herein is denied. In addition, that branch of the motion to compel Sieradzki to serve an answer to the third-party complaint is denied as moot since his reply papers indicate that an answer was served on or about October 16, 2009. [*5]

Notwithstanding that there are cases which hold that a party seeking reargument or renewal is to proceed by order to show cause (see, e.g., Application of Central States Paper & Bag Co., Inc., 132 NYS2d 69, 72 [1954]; Rubin v Dondysh, 147 Misc 2d 221, 225 [1990]), CPLR 2221(a) provides that a motion for leave to renew or reargue "shall be made, on notice, to the judge who signed the order." Accordingly, the court declines to deny the cross motion on the ground that Sieradzki did not move by order to show cause.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221 [e] [2]) and contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221 [e] [3]). In denying that branch of Sieradzki's prior cross motion which sought to dismiss Roth's third-party claim for "contribution/indemnification," this court noted that it could not conclude, as a matter of law, that Roth's acts or omissions harmed plaintiffs or that Sieradzki did not exacerbate that harm because leave to file a late notice of claim might be granted if such an application were made.[FN2] In pursuing such an application, Sieradzki has established "new facts" for the court to review. Therefore, that branch of the cross motion which seeks leave to renew is granted and Sieradzki's request for dismissal of the third-party claim for "contribution/indemnification" is considered anew in light of the denial of the application for leave to serve a late notice of claim.

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 purportedly bear responsibility for that loss because it was the actual wrongdoer (see Trump Village Section 3 Inc. v New York State Housing Finance Agency, 307 AD2d 891, 895 [2003]). "Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnities, it follows that a party who has itself actually participated in the wrongdoing cannot receive the benefit of this doctrine" (Trustees of Columbia Univ. in City of New York v Mitchell/Giurgola Associates, 109 AD2d 449, 453 [1985]). Because Roth's liability, if any, toward plaintiffs would be predicated upon her own fault, she cannot seek common-law indemnification from Sieradzki (see Mathis v Central Park Conservancy, Inc., 251 AD2d 171, 172 [1998]). Simply stated, if Roth were found negligent, at least in part, she might have a valid claim for contribution (not indemnification) from Sieradzki and, if she were found to be free from fault, there would be no need to assert an indemnification claim, assuming, as here, that plaintiffs are not alleging that Roth is vicariously liable for Sieradzki's actions. [*6]Accordingly, so much of the second cause of action of the third-party complaint as asserts a claim for common-law indemnification is dismissed.

Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury . . . may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." An action for contribution is predicated upon a third-party's breach of a duty owned to either the plaintiff or the defendant (see Sommer v Fed. Signal Corp., 79 NY2d 540 [1992]). To state a contribution claim, the "critical requirement" is an allegation that "the breach of duty by the contributing party . . . had a part in causing or augmenting the injury for which contribution is sought" (Raquet v Braun, 90 NY2d 177, 183 [1997]). Consistent with these general principals, New York courts have routinely recognized that an attorney defending a legal malpractice action may state a valid claim for contribution against another attorney alleged to have contributed to the injury for which the plaintiff client complains ( see, e.g., Schauer v Joyce, 54 NY2d 1 [1981]; Patterson, Belknap, Webbv & Tyler LLP v Bond St. Assocs. Ltd., 266 AD2d 125 [1997]). Here, the allegations of the third-party complaint sufficiently state a cause of action for contribution. Roth alleges, among other things, that, if she is held liable to plaintiffs, such liability will have arisen out of and at least in part from the negligence of Sieradzki. Sieradzki's original motion was based upon Roth's alleged failure to state a cause of action pursuant to CPLR 3211(a)(7) and it is only the same relief which may be the subject of re-consideration on renewal. Sieradzki's request for a summary determination that no act or omission on his part contributed to the loss of the infant's claim against the City and/or NYCHA is premature since he has only recently served an answer to the third-party complaint.

With respect to the claim for contribution as it relates to the loss of Crystal Nelson's derivative cause of action against the City and NYCHA, since Sieradzki was not retained by plaintiffs until after the applicable statute of limitations expired, his conduct did not contribute to the loss of that claim. There is, therefore, no basis for requiring him to absorb any liability that may ultimately be imposed on Roth for such loss (see Wilson v Quaranta, 18 AD3d 324, 326 [2005]). Accordingly, Roth's third-party claim for contribution, to the extent it is predicated upon the derivative claim of Crystal Nelson, is dismissed.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:In its order of March 10, 2009, this court noted that an application on behalf of the infant to file a late notice of claim would be timely and, if successful, that it would constitute a defense to both plaintiffs' claims against Roth and Roth's third-party claims against Sieradzki since plaintiffs would not have suffered any harm as a result of the alleged malpractice of either attorney. Accordingly, that branch of Sieradzki's original motion which sought dismissal of the third-party claim for "contribution/indemnification" was denied.

Footnote 2:Contrary to Sieradzki's suggestion, the order denying his application to file a late notice of claim did not state that the application was untimely with respect to the infant's claims, only the derivative claim of Crystal Nelson. As this court noted in its order, at p.6, "the infant's ability to pursue her claim is not foreclosed . . . and, therefore, an application to file a late notice of claim would still be timely" (see Andrew T. B. V Brewster Cent. School Dist., 18 AD3d 745, 748 [2005]).