Angeles v Aronsky
2012 NY Slip Op 30851(U)
April 2, 2012
Sup Ct, NY County
Docket Number: 100091/2009
Judge: Judith J. Gische
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.
SCANNED ON41512012
[* 1]
. .. -..
.
. .
__
.. .
_
..
PART
Index Nurnbw: 1 ~
ANc3ELE8, MANUEL
l
~
O
B
vs.
, ARONSKY,JEFFREYA
,
SUMMARYJUDQMENT
I
8EQUENCENUMBER:OlX
I
I
- --
- .-
I
to
[* 2]
DmaImIon and Order
Index No.: lOOOSl/ZOOS
seq NO.:
005
Plaintiff,
Present :
Bon. J a t h
-againet-
J. U
~
O
G
~
J.S.C.
J e f f r e y A. z~~onsJcy,
[a] of the paperer
eonsidared in the -review of this (these) motion ( 8 ) :
Papers
........................
Aronsky n/m (3212) w/JaB, JAA, AM, AK affida, exhs
Angelee opp w / W F affirm, MA, LC, JSK affids, exhs
Aronsky reply w/JBB affid, exha
Dspo tram Luna (erep exh)
Steno Minutes 1/5/12
variow stiper
Numbered
.
,
. . . . .
. . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
....................
........................
1,2
3
4
5
6
7
- I - - - - - - - - - - - - - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ c _ _ _ -
Gieche J. ;
This i e an action for legal malpractice/negligence. On
January 9 , 2009, plaintiff commenced this action alleging legal
malpractice in defendant's representation of him in t h e
Underlying C l a i m .
On April 2 8 , 2011, plaintiff filed a note o f
iasue and on Augurst 2 6 , 2011, Usfendant f i l e d thia motion f o r
summary judgment.
Defendant moveer for summary judgment, purauant
to CPLR 3212, dismissing plaintiff's complaint.
timely brought (CPLR
§
32121
This motion is
v . Citv of New Yo&
,
2
N.Y.3d
648 [2004]).
For the reasons set forth below, the motion is denied.
P8rtior' Allsgationn and Underlying Baakground
Page 1 of 8
FILED
NEW YORK
COUNTY CLERK'S OFFlCE
[* 3]
Plaintiff alleges that, on December 7, 2007, he was
aseraulted in the lobby of a building (the Building), located at
1745 Caton Avenue, Brooklyn, New York, in which he was a tenant
and that he hired defendant to repremnt him in prosecuting hia
claim (the Underlying C l a i m ) (complaint,
1'8
1, 4 ) .
Plaintiff
contenda that defendant never cornencad an action againat t h e
Building's owner, defendant did not conduct an adegwte
inveetigation of the circumatancts of the incident, and he warn
induced by defendant to sattlc the Underlying Claim against the
Bulldlng'er owner f o r $8500, although t i a wa0 inadequate
hr
compemation in light of the severity of h i s injurice which
included having both his arms broken, a broken J a w and broken
ribs (id., 77 10, 17-18).
Defendant asscrta that plaintiff voluntarily agreed to t h e
eettlemsnt of the Underlying claim, that the Underlying C l a i m had
significant liability problem, warranting a low eettlement
amount, eincs plaintiff stated t h a t t h e door lock leading into
the lobby area of the Building WBB in working ordar on the day of
the incident, that t h e alleged aseailanta were unknown and that
there w e r e no prior a i r n i l a r incidents in the Building (defendant
affidavit, g l 14, S - 6 ) .
Defendant atatear that, on W
e 2 0 , 2008,
he advised plaintiff in a telephone conference of the potential
dffficultias in prosecuting the Underlying Claim, t h a t he
presented the offer from the Building owner's insurance carrier
Paga2of 8
[* 4]
without any recommendation and that plaintiff wanted to, and did,
agree to accept the offer and aigned a release s e t t l i n g the
Underlying Claim (fd.,
10-141 Marks affidavit,
11 3-71,
In this motion, defendant contende that plaintiff
CM
not
establish that "the asaailante gained entry into the [Bluilaing
through a negligently maintained entrance"
and, consequently,
plaintiff could not succeed in the Underlying Claim (Kaminsky
affirmation,
a
9).
Defendant also claima that plaintiff is
nmcond gucasingR h i s decision to raettle the Underlying Claim and
that his signing of the releasle bara this action (Bruno
affirmation,
17
3,
9).
Finally, defendant aeaerta t h a t hie
investigation of the circumatanccs of the incident was
appropriate and that it
WBB
a reasonable judgment that cannot
serve as the baaier for a legal malpractice claim.
Summary Gudgmsnt
A
party seeking erummary judgment muet make a prima facie
Case showing that it iB entitled to judgment aa a matter of l a w
by proffering sluffieiant evidence to demonstrate the abeence of
any material issue of fact (Alvarez v Prospect m a p . , 6 8 ~
320, 3 2 4 [1986] 1
~
2
If the movant f a i l a to make thia lehowing, the
motion must be denied (Iff.). Once the movant meets its burden,
then the opposfng party muet produce avldentiary proof in
admissible form sufficient to raise a triable ieraua of material
fact (Zucksxman v C i t y of N e w York, 4 9 NY2d 5 5 7 , 5 6 2 [I9801 1 .
Page 3 of 8
In
8
[* 5]
deciding t h e motion, the court must d r a w all reamonable
inferences in favor of the nonmoving party and deny summary
judgment if there is any doubt ae to the exirJtencn of a material
issue of fact (Daumua Displays v Mu~tuxzo,168 AD2d 2 0 4 ,
205
mpt 199OJ, Iv dismiBsed 77 NY2d 939 [19911).
P r d a m r Liability
t
Generally, a landowner rnuat act aa a xeasonably prudent
pereon in maintaining its property in a reasonably eafe condition
under all the c i r c w t a n c s s , including the likelihood of i n j u r y ,
t h e potential seriouaness of Injury and t h e burden of avoiding
the risk (Peralta v Henriqudz, 100 NY2d 139, 1 4 4 [ 2 0 0 3 1 ) .
Additionally, a party muat be aware of the alleged defective or
dangerous condition, either through having created
It,
actual
knowledge of the condition or constructive notice of it through
the Befect'B viaibility for a sufficient amount of time prior to
the accident to enable a defendant to diecover and remedy it
(Qordon v American Museum of Natural Hisrtary, 67 NY2d 836, 837
E19861 1 .
In a prtmisee security action, a landlord has "a 'common-law
duty to take minimal prtcautiona to protect ttnanta from
foreseeable harm,, including a t h i r d party's foremeable criminal
conduct [and]
...
an injured tenant may recover damages 'only on
a showing that the lan8lord's negligent conduct wae a proximate
cause of the i n j u r y ' " (Rnmaro v Twin Park8 Southeast Hou888,
Page 4 of 8
[* 6]
Snc., 70 A1338
484,
484
[lat Dept 20101, quoting Burg08 v Aqueduct
Realty C o r p . , 92 NY2d 5 4 4 , 5 4 8 L19981) .
Where the assailante are
unidentified, plaintiff "may meet his proximate cause burden ' i f
t h e evidence renUers it more likely or more reasonable t h a n not
that the [aesailanta were intruders] who gained acceerer to t h e
prcrniears through a negligently maintained entrance'" ( R m a r o , 70
AD3d at 4 6 4 , quoting Burgos, 92 NY2d at 5 5 1 ) .
Legal Malpraatiar
"In order to surotain a claim for legal malpractice, a
plaintiff muat eertablish both that the defendant attorney failed
to exercise the ordinary reaonabls rrkill and knowledge commonly
possemed by a member of the legal profeemian which rasulte In
actual damage0 to a plaintiff and that the plaintiff would have
succeeded on the merits of the underlying action 'but for' the
attorney's negligance" (AmEalas Corp. v Davis Polk & Wardwell, 8
NY3d 4 2 8 , 4 3 4 [ZOO71
[internal citation omitted]
Estate of Nevelaon v Carro, Spanbock, Raster
282,
&
i
see also
Cuiffo, 259 AD28
283 [lat Dtpt 19991).
An
"error of judgment
...
[or the] selection of one among
several reasonable couriem of action dots not conetitute
malpractice" (Roener v Palay, 65 NY2d 736, 738 (19851 ; Rocfripsz
v L i p s i g , Shagey, Manus
Dept 20111 )
6
Moveman, P.C., 8 1 AD3d 551,
5 5 2 [lst
.
However, "aettlcment of an underlying claim dcwa not
Pagc5of 8
[* 7]
preclude a subeequcnt action f o r legal malpractice where the
settlement w a ~
effectively compelled by the mistakee of counselm
(Kutncr v Catterson, 56 AD3d 4 3 7 , 4 3 7 - 4 3 8 [2d Dept
also Rudolf v Shame, Dnchs, S t a n i s c i , Corker
[20071; Gkrnett
Dept 20111
v Fox, H o r n
&
Z O O S ] ; see
& Sauex,
8 NY3d 4 3 8
C a m e r i d , LLrp, 82 AD3d 4 3 5 [lst
*
Dieausrion
Applying the above mentioned legal principlasa to this
motion, defendant’s motion f o r aummary judgment must be denied.
Defendant statea that a euccetraful reault in the Underlying
Claim could not be eatablirahed erince plaintiff stated that the
door locks were functioning properly on the day of the incident
and plaintiff did not know who attacked h i m (plaintiff EBT, at
17, 19).
Plaintiff has, however, presented evidence of
a c c e s d b i l i t y to the Buildlng’through a side entrance and that
three men with baseball bats were 8een leaving the Building
around the time of the alleged assault on plaintiff (Sosa EBT, at
5 2 , 5 4 , 5 9 ; L u n a EBT, at 20-21).
Since the c o u r t must view the
evidence in the light most favorable to plaintiff on this motion
(Branham v Loewa Orphaum Cinemus, Inc., 8 NY3d 931, 932 [ 2 0 0 7 1 ) ,
plaintiff hacr raised a factual iseue aa to the accessibility to
the Building through the unlocked aide entrance ( B w g o s , 92 NY2d
at 551).
Plaintiff has also presented evidence of a factual issue a0
Paga6of 8
[* 8]
to the adaquacy of defendant's investigation i n t o the
circumstances of the Underlying C l a i m , since neither defendant
nor his lnveetigator went to the Building or spoke with t h e
Building's superintendent and, accordingly, they dtd not obtain
Informatton about the a i d e entrance and its accessibility
(defendant EBT, at 51-52).
Defendant alao failed to seek
information as to prior similar incidents in the area which would
be relevant to foraaeeability
(fa.
at 5 8 ) .
Since defendant s t a t e d that he advisled plaintiff
BLB
to the
strengths and weaknesses of the Underlying Claim as part of his
diacumion with plaintiff on June 20, 2 0 0 8 in connection w i t h
plaintiff‘a acceptance of t h e
$8500
mttlemant offer, the factual
dispute regarding whether an appropriate investigation
t10
wag
mada
defendant could present an accurate aaaasrsrntnt of the adequacy
of the settlement, ia a material issue.
The factual diaputaa noted above also prsaent a matter of
credibility more properly resolved by a fact finder at trial (sea
Aller v C i t y of New York, 72 AD38 5 6 3 ,
564
[ l s t D e g t 20101).
On
t h i n motion f o r summary judgment, the court muet accept
plaintiff’s version of contented factual mattere and, therefore,
ainca clefendant hae failed to show entitlement to judgmnt as
matter of l a w , his motion muat be denled (Branham, 8 W3d at
332)
.
Pago7of 8
CL
[* 9]
Conclusion
In accordance with the foregoing, defendant's motion f o r
summary judgment disrnisaing plaintiff's complaint io denied.
Since the note of iesue has been filed, plaintiff ehall aerve a
copy of this dacisfon and order on the Office of Trial Support rao
thia case may be scheduled for t r i a l .
Any relief not:
specifically addrsaaed iB hereby denied.
This constitutes the
decision and order of the court.
Dated :
New York, New York
April
2,
2012
So Ordered:
2
Hon. Judith J.
Page8of 8
ischs, JSC
