Amaker v Lee
Annotate this CaseDecided on September 28, 2012
Supreme Court, Kings County
Joel L. Amaker, Sr., Plaintiff,
against
Howard D. Lee, Esq., Defendant.
9382/09
Plaintiff, Joel L. Amaker, Sr.
Pro Se
140 Moore Street, Apt. 7A
Brooklyn, NY 11206
Sean H. Rooney, Esq.
Attorney for Defendant Howard D. Lee, Esq
189 Montague Street, Suite 510
Brooklyn, NY 11201
(718) 243-2168
Francois A. Rivera, J.
By notice of motion filed on April 27, 2012, defendant Howard D. Lee, Esq., has moved under motion sequence number three, for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212; and for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (7). Plaintiff Joel L. [*2]Amaker, Sr. has opposed the motion. BACKGROUND
On April 16, 2009, plaintiff commenced the instant action for damages for legal malpractice, pro se, by filing a poor person's affidavit and a summons and complaint with the Kings County Clerk's office. Defendant joined issue by verified answer filed on April 23, 2010.
The complaint is unverified and contains forty-three unnumbered paragraphs and allegations of fact. On March 12, 2012, a note of issue was filed.
The complaint alleges the following salient facts. In May of 2003, plaintiff hired the defendant to represent him in a child support proceeding pending in New York County Family Court under Docket No.: F-00898-02/05B, F-0898-02/05C called Jeanette Chirico v. Joel Amaker (hereinafter referred to as the "child support case"). Plaintiff retained the defendant to review the orders in the child support case against the orders in plaintiff's preceding divorce action in Supreme Court and then take over the child support case to reduce the child support order and arrears existing at that time. The plaintiff paid the defendant an initial deposit of $500.00 towards the child support case.
The complaint also alleges that the defendant missed several court appearances, failed to notify the court that he was not coming, and failed to prepare a defense for the plaintiff in the child support case. In particular the defendant failed to argue at a "willfulness hearing" that the plaintiff's failure to pay child support was not due to his desire not to pay but being unable to pay due to other circumstances. After a hearing, in which the plaintiff and the defendant were present, the court in the child support case made a decision holding the plaintiff to be in willful violation of the order of support and incarcerated him for a period of six months. The defendant failed to appeal the contempt order. Plaintiff contends that the defendant's conduct amounted to legal malpractice and resulted in his incarceration.
MOTION PAPERS
Defendant's motion papers consist of an affirmation of his counsel, his own affidavit and fifteen-annexed exhibit labeled A through O. Exhibit A is the instant summons and complaint. Exhibit B is defendant's answer. Exhibit C is a copy of a receipt for the $500.00 deposit plaintiff paid the defendant. Exhibit D is a copy of the decision and order of the hearing examiner in the child support case. Exhibit E is a copy of the findings of fact and decision of the hearing examiner dated May 25, 2006, after a hearing to determine the willfulness of plaintiff's failure to pay his child support obligation. Exhibit F is the decision and order of the family court judge dated June 7, 2006, which affirmed the findings of the hearing examiner and found that the plaintiff was in willful contempt of a child support order. Exhibit G is the commitment order for plaintiff's incarceration for six months based on his contempt. Exhibit H is a financial disclosure statement. Exhibit I is a letter to the plaintiff from an attorney disciplinary committee dismissing plaintiff's ethical complaint against the defendant. Exhibit J purports to be a list of different lawsuits brought by the plaintiff. Exhibit K purports to be [*3]evidence that plaintiff filed a disciplinary complaint against the hearing officer and family court judge involved in the willfulness hearing and order of commitment. Exhibit L is a decision and order from a Judge of the United States District Court for the Eastern District of New York dismissing plaintiff's lawsuit against the hearing officer and family court judge involved in the willfulness hearing and order of commitment. Exhibit M is a consent order that plaintiff entered into in 1996. Exhibit N is an affidavit of engagement prepared by the defendant. Exhibit O is defendant's disclosure demands of the plaintiff. Plaintiff's opposition papers are incorrectly denominated as a notice of motion in opposition. His papers consist of his unsworn statement incorrectly denominated as an affidavit and ten annexed exhibits labeled A through J.
Defendant has replied with an affirmation of counsel and eight annexed exhibits labeled A through H.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72[2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923, [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, supra, 68 NY2d at 324).
In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Alizio v Feldman, 82 AD3d 804 [2nd Dept 2011]; see, Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The damages recoverable in a legal malpractice action are limited to pecuniary loss (see Dombrowski v Bulson, 19 NY3d 347 [2012]; Gaskin v Harris, - NYS2d , 2012 WL 3971280 [2nd Dept 2012]). "Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Healy v Finz & Finz, ——— AD3d ———— [2nd Dept 2011]; citing, Northrop v Thorsen, 46 AD3d 780, 782, [2nd Dept 2007]).
In order to establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence"(id.). Indeed, the failure to show proximate cause "mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent" (Wo Yee Hing Realty, Corp. v Stern, 949 NYS2d 50 [1st Dept 2012]).
To succeed on a motion for summary judgment, the defendant in a legal [*4]malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]).
In the instant matter defendant contends that the plaintiff cannot demonstrate two essential factors. First, that plaintiff would have prevailed in the child support case. Second, that he would not have incurred any damages, but for the lawyer's negligence. There is no dispute that the support obligation and accumulated arrears, which precipitated the child support case, existed long before the plaintiff hired the defendant to represent him. There is also no dispute that the plaintiff's incarceration occurred after a hearing, in which he was offered an opportunity to present evidence and test the evidence submitted against him.
The defendant does not admit that he committed malpractice. Rather, he contends that accepting as true every allegation of fact stated in the complaint, the plaintiff does not plead any facts showing that he suffered a pecuniary loss. He further contends that plaintiff cannot demonstrate any pecuniary loss proximately caused by the defendant's alleged malpractice.
Defendant's sworn allegations of fact and documentary evidence makes a prima facie showing of the following facts. The plaintiff did not prevail in the child support case because he was found after an evidentiary hearing to have willfully failed to comply with a court ordered child support obligation. The plaintiff was incarcerated based on his willful disobedience of a child support order. The defendant did not agree to represent the plaintiff on an appeal of any order emanating from the child support case.
Assuming, for the sake of argument, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he represented the plaintiff in the child support case, the plaintiff must demonstrate causation between the malpractice and ascertainable pecuniary loss. Pecuniary loss, does not include the emotional damage or pain and suffering caused by being incarcerated (see Dombrowski v Bulson, 19 NY3d 347 [2012]; Gaskin v Harris, - NYS2d , 2012 WL 3971280 [2nd Dept 2012]).
Defendant has made a prima facie showing that the plaintiff did not plead and cannot prove that he sustained any ascertainable pecuniary damage caused by the defendant's alleged negligence in representing him. The defendant has, therefore, made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of his legal malpractice claim (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]).
By doing so, the defendant has shifted the burden to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]). The plaintiff has submitted an unsworn statement, incorrectly denominated as an affidavit, stating his position. The exhibits annexed to his opposition are therefore, not properly admitted and [*5]have no probative value. A review of the contents of plaintiff's statement, assuming that it had been properly sworn, reveals no triable issue. When viewed in the light most favorable to the plaintiff, it demonstrates no ascertainable pecuniary loss caused by the defendant's acts or omissions in representing him in the child support case. Plaintiff has failed to raise an issue of fact requiring a trial.
Defendant's motion for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212 is granted.In light of the foregoing, the court need not and does not reach defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).
The foregoing constitutes the decision and order of this court.
Enter:
J.S.C.
Enter Forthwith:____________________________
J.S.C.
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