U.S. Bank Natl. Assn. v Stein
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U.S. Bank Natl. Assn. v Stein 2011 NY Slip Op 32477(U) September 13, 2011 Sup Ct, Nassau County Docket Number: 016919/08 Judge: Randy Sue Marber Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF TH STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RADY SUE MAER JUSTICE S. BANK NATIONAL ASSOCIATION , AS TRUSTEE FOR ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2006- HEI Plaintiffs, -against- ALAN C. STEIN, ESQ. , GASTWIRTH , MIRSKY & STEIN , L.L.P. , LAW OFFICE OF ALAN C. STEIN, P. , ROBERT M. STEINRT and CHICAGO TITLE INSURNCE COMPANY Defendants. ALAN C. STEIN , ESQ. , GASTWIRTH , MIRSKY & STEIN , L.L.P. and LAW OFFICE OF ALAN C. STEIN , P. Third- Par Plaintiffs, -againstSTEVEN J. BAUM, P. ESQ. , and STEVEN J. BAUM, Third- Par Defendants. Papers Submitted: Notice of Motion (Mot. Seq. 04)............... TR/IS PART 18 Index No. : 016919/08 Motion Sequence... Motion Date... 08/11/11 ..... [* 2] Notice of Cross-Motion (Mot. Seq. 05)1 Reply Affirmation................................... ... Upon the foregoing papers, the Defendant/Third- Par Plaintiffs, ALAN C. STEIN, ESQ. , GASTWIRTH , MIRSKY & STEIN , L.L.P. and LA W OFFICE OF ALAN C. STEIN , P. C. ' s (hereinafter collectively referred as the " Stein Defendants" ), motion to reargue (Mot. Seq. 04), brought pursuantto CPLR g2221 (d) (2), seeking rearguent of this Cour' Short Form Order , dated May 13, 2011 (Marber, J. ), and, upon reargument, seeking an order pursuant to CPLR g 3212 , granting them sumar judgment on all claims in the Third- Par Complaint, is decided as hereinafter provided. The Third- Par Defendants , STEVEN J. BAUM , P. C. and STEVEN J. BAUM , ESQ. s (hereinafter collectively referred to as the Baum Firm ), cross-motion (Mot. Seq. 05), seeking to compel Stein to submit for an examination before trial , was resolved by a " So- Ordered" Stipulation , dated July 14 2011. Relevant Factual and Procedural Backfround: On or about September 11, 2008 , the Plaintiff, U. S. BANK NATIONAL ASSOCIATION , AS TRUSTEE FOR CERTIFICATES, SERIES 2006- HE 1 (" ASSET BACKED PASS THROUGH US Ban" ), commenced this action against the Stein Defendants for legal malpractice alleging that the Defendants were negligent in failng to properly record a mortgage executed in favor of the Plaintiff on a certain parcel of land located at 112 Irving Avenue, Deer Park , New York (hereinafter "Premises The Stein I The afrmative relief sought in Motion Sequence 05 was resolved by " So- Ordered" Stipulation dated July 14 2011 , however, said papers included opposition to the instat therefore referenced above. and are [* 3] Defendants subsequently commenced a third-par action against the Baum Firm for contrbution alleging that the Baum Firm failed to timely intervene in the action which could have secured the Plaintiff an equitable lien on its incorrectly recorded mortgage. The basis of the Stein Defendants' claim for contribution is that the Baum Firm was negligent/guilty of malpractice in that it knew or should have known of another mortgage on the same Premises in favor ofT&V Constrction Corp. (hereinafter the " T&V Mortgage ), and the Baum Firm s failure to timely intervene in the T&V Mortgage foreclosure proceeding proximately caused damages to the Plaintiff, US Ban. The Order denying US Bank' motion to intervene in the T&V foreclosure action is anexed to the Stein Defendants' underlying cross-motion for summar judgment as Exhibit " March 13 , 2009). For a full recitation of the facts , order of the Hon. Sandra L. Sgroi and this Cour' (See Decision , Sgroi , J. reference is made to the decision and s previous Order. (See Short Form Order Marber, J. , May 13, 2011 , attached to Stein s Notice of Motion as Exhibit " The Baum Firm moved to dismiss the third-par complaint, pursuant to cPLR g 3211 (a) (7), claiming that there was no basis for a malpractice action since it was retained in a different matter and for a different purose than were the Stein Defendants. Justice Wiliam R. LaMarca, prior to his retirement from the bench , denied the motion to dismiss relying on Schauer v. Joyce 54 N. Y.2d 1 (1981) and 143 (1972), finding that the third-part Par Dole v. Dow Chemical Co. 30 N. complaint validly stated a claim for contribution. Justice LaMarca granted the motion to dismiss as to all claims asserted against ThirdDefendant, Steven J. Baum , Esq. , individualy. [* 4] (See Short Form Order , LaMarca , J. , 12/04/09). In affirming Justice LaMarca s Order, the Appellate Division , Second Deparent, held that (t )he Supreme Cour properly determined that the Stein defendants stated a cause of action against the third-part Baum , P. defendant Steven , by asserting, among other things, that Steven J. Baum, P. , failed to timely correct the legal errors allegedly committed by the Stein defendants in their representation of the plaintiffs predecessor in interest, despite having sufficient time and an opportnity to do. The third- par complaint alleged sufficient facts which, if tre , would establish that Steven J. Baum, P. , may be liable to the Stein defendants for causing or contributing to the plaintiffs alleged damages On or about November 29, 2010, prior to the completion of discovery in this matter, the Baum Firm moved for sumary judgment, pursuant to CPLR g 3212 , seeking dismissal of the third-par complaint. The Stein Defendants cross-moved for sumar judgment , seeking judgment as a matter of law in their favor against the Baum Firm on all claims asserted in the third-par complaint. The Cour denied both the motion and cross- motion for sumar judgment. (See Short Form Order, Marber, J., 05/13/11). The Stein Defendants now seek reargument, and , upon reargument, seek an order pursuant to cPLR g 3212 , granting them sumar judgment. Stein l)efendants ' Cross-Motion for Summary Judfment: The Stein Defendants argued in their cross-motion that the Baum Firm made several admissions in its motion for sumar judgment that waranted granting the Stein ," [* 5] Defendants sumar judgment on their third-par complaint, namely, the admission that US Bank' s mortgage was superior to the T&V mortgage based upon principles of equitable subordination. As such , the Stein Defendants contend that the Baum Firm was required to assure US Ban' s first position by intervening in the T&V foreclosure action before the subject Premises was foreclosed upon and sold by another. The Stein Defendants fuer assert that since a lien search would have revealed the existence of the lis pendens fied when the T & V mortgage foreclosure proceeding was commenced (five months prior to the commencement of the foreclosure proceeding on the US Ban' s foreclosure proceeding on the same Premises), the Baum Firm s failure to timely intervene and secure US Ban' interests was malpractice per se. In opposition to the Stein Defendants ' cross-motion , the Baum Firm insisted that the Stein Defendants failed to demonstrate that the Baum Firm s decision to commence its own foreclosure action naming T & V Constrction as a defendant, rather than intervening in the T & V foreclosure action , was nothing more than an " error in judgment" that canot support a claim for malpractice. This Cour, in considering the arguents raised by counsel, found that (t)he Baum Firm s intentional decision not to intervene despite there being a lis pendens fied against the Premises , must be examined by a trier of fact to determine whether that was an exercise of sound judgment" (See determining that neither part was Short Form Order , Marber, J., 5/13/11 , page 10). In entitled to sumar judgment, this Cour furter found ,' [* 6] that 'the question of whether the Baum Firm s failure to timely intervene in the T&V foreclosure action was conduct that fell below accepted standards of care within the legal profession , is an inquiry to be determined by the trier of fact" Id. at page 11. The Stein Defendants ' Motion to Rearfue: In moving to reargue , the Stein Defendants submit that this Cour overlooked and/or misapprehended the fact that the Appellate Division, Second Departent, confirmed the Decision and Order ofthis Court and the Baum Firm was " successor counsel" to the Stein Defendants. The Stein Defendants fuer submit that once that issue was determined, the Baum Firm s admission that it did not timely intervene in the T&V foreclosure action eliminated any issue of fact waranting sumar judgment in favor of the Stein Defendants on the third-par complaint. In support of the motion to reargue , the Stein Defendants contend that it is the law of this case that the Baum Firm was successor counsel to the Stein Defendants and that the Cour overlooked that the Appellate Division held that, if the allegations in the thirdcomplaint were tre , Plaintiffs alleged par the Baum Firm may be liable to Stein for causing or contributing to the damages. Furher, the Stein Defendants contend that this Cour misapprehended the issues by finding issues of fact as to whether or not the Baum Firm conduct rose to the level of malpractice. It is furter contended that the malpractice issue is only relevant to the underlying action and should not have been considered in their crossmotion for sumar judgment. The Cour disagrees. [* 7] The right to contribution generally arises when "multiple wrongdoers ... each owe a duty to plaintiff or to each other and by breaching their respective contribute to plaintiffs ultimate injuries. Mitchell/Giurgola Associates 109 A. 90 N. 2d 177 , duties they Trustees of Columbia University in City ofN.:r 2d 449, 454 (1st Dept. 1985); see Raquet v. Braun 182 (1997). The Stein Defendants ' argument , that this Cour does not have to find that the Baum Firm breached a duty of care to the Plaintiff, which in tur means finding the Baum Firm guilty of legal malpractice, in order to grant judgment as a matter of law on the thirdpar complaint, is erroneous. The third-par complaint clearly states that " ifplaintiffwas damaged as alleged in the complaint, it was as a result of the negligence, recklessness carelessness , culpable conduct or breach of contract by the third-par defendants See Third- Par Complaint, dated June 25 2009, page 5. The Stein Defendants are correct in their assertion that according to Schauer v. Joyce 54 N. 2d 1 (1981), the facts as alleged in the third-par complaint , do in fact state a viable claim upon which relief may be granted. However sumar judgment is waranted where there are no issues of fact with respect to the claims alleged in the third-par complaint. The burden is on the third-par plaintiffs the Stein Defendants , to eliminate any issues of fact. It is well settled that to prevail on a motion for sumar judgment, the movant must establish its entitlement to judgment as a matter oflaw , by submitting evidentiar proof in admissible form sufficient to demonstrate the absence of any material issues of fact. See [* 8] Alvarez CPLR 3212 (b); v. Prospect Hosp. 68 N. 2d 320, v. Zuckerman 324 (1986); City of New York 49 N. Y.2d 557 562 (1980). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Univ. Med. Ctr. 64 N. 2d 851 v. Winegrad New York 853 (1985). The affidavit of Mr. Gross , together with the fact that the Baum Firm commenced its own foreclosure action naming T & V as a defendant to secure the interests of its client, raise issues of fact as to whether or not the Baum Firm breached a duty owed to the Plaintiff. Notably, several ofthe cases cited by counsel for the Stein Defendants involve the issue of whether or not the allegations give rise to a claim for contribution , not the issue of whether or not judgment as a matter of law should be granted on liabilty. A motion for reargument is addressed to the sound discretion of the cour and may be granted upon a showing that the cour overlooked or misapprehended the relevant Ito facts or misapplied any controllng principles of law. D.3d 816 , Roche, East h Street Corp. , 49 817 (2d Dept. 2008). It is not designed , however, as a vehicle to provide an unsuccessful par v. v. 324 68 A. with successive opportities to (Foley rehash issues previously decided 2d 558, 567 (1stDept. 1979)), or to present arguents different Giovanniello originally presented. v. Carolina Wholesale Offce Mach. Co. from those 29 A. D.3d 737 738 (2d Dept. 2006). The Cour finds that, in rendering its previous decision , all of the arguents raised by the Stein Defendants herein were considered. Stein failed to show that the Cour [* 9] overlooked or misapprehended the relevant facts or misapplied any controllng principles of law. As such, the Cour adheres to its original decision and Stein s motion to reargue is DENIED. Accordingly, it is hereby ORDERED , that the Stein Defendants motion to reargue (Mot. Seq. 04), pursuant to CPLR g2221 (d) (2), seeking reargument of this Cour' s Order, dated May 13, 2011 (Marber , J.), and , upon rearguent, seeking an order pursuant to CPLR g 3212 granting Stein summar judgment on all claims in the Third- Par Complaint , is DENIED. All applications not specifically addressed herein are DENIED. This constitutes the decision and order of the Cour. Dated: Mineola , New York September 13 , 2011 Hon. Rand u Marber, J. ENTFRI;D SEP 16 2011 NASSAU COUNTY COUN' TV CLERK' S OFFICE
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