Cochran v Licari

[*1] Cochran v Licari 2004 NY Slip Op 51263(U) Decided on August 5, 2004 Supreme Court, Suffolk County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2004
Supreme Court, Suffolk County

EDWARD COCHRAN, Plaintiff,

against

THOMAS B. LICARI, ROBERT J. HAAS, and RICK T. HUBBARD d/b/a LICARI, HAAS & HUBBARD, Defendants.



02-4792

Arthur G. Pitts, J.

ORDERED that the motion by plaintiff for an order granting him partial summary judgment on the issue of defendants' liability for legal malpractice is denied.

In September 1988, plaintiff retained defendant Robert Haas to represent him in a divorce action that had been commenced in 1986 by his former wife, Carmen Cochran. The court's [*2]computerized records indicate that this action, assigned index number 86-18618, was marked off the calendar on September 23, 1987. The case apparently was dismissed as abandoned due to plaintiff's failure to restore it to the calendar within one year of its being marked off (see, CPLR 3404). Subsequently, on December 4, 1997, Carmen Cochran brought a second action, assigned index number 97-29096, for a judgment of divorce against plaintiff on the ground of cruel and inhuman treatment. On December 30, 1997, plaintiff allegedly retained the law firm of Licari, Haas and Hubbard (hereinafter the law firm) to defend his interests in the new matrimonial action. The retainer agreement, a copy of which is included in plaintiff's Exhibit C, states that it is an agreement between plaintiff and the law firm for legal services in the matrimonial action, and is signed by plaintiff and Hubbard. The court's computerized records indicate that although plaintiff was served with a complaint in March 1998, the parties did not seek a preliminary conference on the matrimonial matter until January 2001.

Meanwhile, on March 28, 1998, plaintiff allegedly was injured while standing on the revolving platform of a carousel at an amusement park known as Adventureland. According to his examination before trial in the instant action, plaintiff was not seated on the carousel when the alleged incident occurred. Rather, he was standing alongside a young child, who was riding on a carousel horse, when he allegedly was struck in the back of the leg by a loose pole as the ride was moving. Plaintiff testified that after being struck by the pole, he fell off the carousel and suffered injuries to his wrists, hands, back, knee, groin and other areas. In April 1998, plaintiff allegedly entered into a retainer agreement with the law firm to represent him in a personal injury lawsuit against the owner of the amusement park. Absent from the record, however, is a copy of the retainer agreement for the personal injury action. Plaintiff allegedly met with Hubbard on numerous occasions in 1998, 1999 and 2000 regarding both the matrimonial and the personal injury cases. It is undisputed that defendants failed to commence a personal injury action on behalf plaintiff.

Plaintiff alleges that in September 2001, he learned that Hubbard had failed on numerous occasions to appear on the matrimonial case, and that several lawsuits and complaints had been filed against the attorney for neglecting legal matters entrusted to him. He alleges that he subsequently retained Diane Carroll, Esq. to defend him in the matrimonial action, which was settled in April 2002, and the law firm Gacovino, Lake & Associates to prosecute the personal injury claim against the amusement park. The court notes that under the terms of the settlement agreement, which was placed on the record in open court, plaintiff retained sole possession of his retirement accounts. By letter dated January 11, 2002, plaintiff was advised by Stephen Gacovino, Esq. that the Gacovino, Lake firm could not represent him on the personal injury matter.

In February 2002, plaintiff commenced this action against defendants to recover damages for legal malpractice and breach of contract. The first cause of action alleges the negligently-handled matrimonial action and that "but for the defendants' negligence * * * plaintiff would have had his pension value fixed as of the date of the original divorce action in 1988, rather than at its current higher value." The second cause of action alleges defendants breached the retainer agreement by failing to provide any legal services, despite having been paid legal fees by plaintiff. Lastly, the third cause of action alleges that defendants negligently failed [*3]to commence a personal injury action on behalf of plaintiff before the expiration of the statute of limitations. It alleges that "but for defendants' negligence, lack of diligence and skill, plaintiff would have recovered damages for his personal injuries, medical expenses and loss of income in the sum of $2,000,000."

Plaintiff now seeks an order granting partial summary judgment in his favor on the issue of defendants' liability for negligently failing to commence the personal injury action against the amusement park owner.[FN1] The court notes that defendant Haas has not appeared in this action, and there is no proof in the record that jurisdiction was obtained over him. Hubbard opposes the motion on the grounds that issues of fact exist as to whether plaintiff had obtained new representation on the personal injury action prior to the expiration of the statute of limitations and whether he sustained actual damages as a result of the alleged negligence. Hubbard alleges, among other things, that he advised plaintiff in January 2001 that he could not represent him on the personal injury claim, and that plaintiff then took the file from his office and retained new counsel on the matter. Licari opposes the motion on the grounds that defendants' partnership had been dissolved by September 1997, and that the partnership never had any dealings with plaintiff regarding the personal injury claim prior to its dissolution.

Summary judgment against Hubbard and Licari on the issue of liability for failure to timely commence a personal injury action on behalf of plaintiff is denied, as plaintiff failed to meet his burden of establishing entitlement to judgment on such claim as a matter of law (see generally, Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]). To recover damages for legal malpractice, a plaintiff must prove the attorney was negligent, that such negligence was the proximate cause of the loss sustained, and actual damages (see, Aversa v Safran, 303 AD2d 700, 757 NYS2d 573 [2d Dept 2003]; Shopsin v Siben & Siben, 268 AD2d 578, 702 NYS2d 610 [2d Dept 2000]). The elements of negligence and proximate cause are established with proof that the attorney "failed to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community," and that, but for the attorney's failure to exercise due care, the plaintiff would have prevailed in the underlying action or would not have incurred damages as a result of the attorney's conduct (Blank v Harry Katz, P.C., 3 AD3d 512, 770 NYS2d 742 [2d Dept 2004]; Caires v Siben & Siben, 2 AD3d 383, 384, 767 NYS2d 785 [2d Dept 2003]; see, Natale v Jeffrey Samel & Assocs., 308 AD2d 568, 764 NYS2d 883 [2d Dept 2003], lv denied 2 NY3d 701, 778 NYS2d 460 [2004]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffern, 303 AD2d 561, 755 NYS2d 726 [2d Dept], lv denied 100 NY2d 511, 766 NYS2d 165 [2003]; Iannarone v Gramer, 256 AD2d 443, 682 NYS2d 84 [2d Dept 1998]). In addition, the damages sustained by the plaintiff must be actual and ascertainable (see, Brooklyn Law School v Great N. Ins. Co., 283 AD2d 383, 723 NYS2d 861 [2d Dept 2001]; Giambrone v Bank of New York, 253 AD2d 786, 677 NYS2d 608 [2d Dept [*4]1998]; see also, Lindenman v Kreitzer, __ AD3d __, 775 NYS2d 4 {7 AD3d 30} [1st Dept 2004]). "Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice" (Giambrone v Bank of New York, supra , at 787, 677 NYS2d 608; see, Albanese v Hametz, 4 AD3d 379, 771 NYS2d 393 [2d Dept 2004]; Brooklyn Law School v Great N. Ins. Co., supra ).

Plaintiff failed to establish prima facie that but for defendants' alleged negligence he would have prevailed in the personal injury action against the amusement park owner. In particular, plaintiff failed to demonstrate that the amusement park owner had any knowledge of the alleged defective condition on the carousel or that it could have discovered it through the exercise of reasonable care (see generally, Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 [1986]). Further, the court rejects plaintiff's conclusory assertions that the doctrine of res ipsa loquitur would have been applicable in the underlying personal injury case, and that the amusement park would have been held liable in negligence under such theory. The doctrine of res ipsa loquitur is a rule of evidence that creates a permissible inference, not a presumption, of negligence, permitting a case to go to a jury without requiring a plaintiff to present direct proof of negligence (see, Dermatossian v New York City Transit Auth., 67 NY2d 219, 501 NYS2d 784 [1986]). Thus, it is inappropriate to apply the doctrine as a basis for granting a plaintiff summary judgment on the issue of liability (see, Martinez v City of New York, 292 AD2d 349, 738 NYS2d 383 [2d Dept 2002]; Vaynberg v Provident Operating Corp., 269 AD2d 442, 703 NYS2d 208 [2d Dept 2000]; Feuer v HASC Summer Program, 247 AD2d 429, 668 NYS2d 700 [2d Dept 1998]). Submission of a case under the doctrine of res ipsa loquitur requires proof (1) the event was of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality in the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the defendant (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623, 518 NYS2d 776 [1987]; Dermatossian v New York City Tr. Auth., supra , at 226, 501 NYS2d 784 [1986]; Scott v First Stop, 3 AD3d 528, 770 NYS2d 733 [2d Dept 2004]). The doctrine does not relieve a plaintiff from the burden of proving that the person charged with negligence was at fault (see, George Foltis, Inc. v City of New York, 287 NY 108, 38 NE2d 455 [1941]). Here, the element of exclusive control is absent, as visitors to the amusement park, both adults and children, ride the carousel (see, Ebanks v New York City Tr. Auth., 70 NY2d 621, 518 NYS2d 776 [1987]; Dermatossian v New York City Transit Auth., supra ; Scott v First Stop, supra ; Sinto v City of Long Beach, 290 AD2d 550, 736 NYS2d 700 [2d Dept 2002]; Raimondi v New York Racing Assn., 213 AD2d 708, 624 NYS2d 273 [2d Dept], lv denied 86 NY2d 707, 632 NYS2d 500 [1995]). In addition, there is no evidence showing that maintenance and repair work on the carousel was performed by the amusement park itself, not by the manufacturer of the ride or other third party (see, Martinez v City of New York, supra ; McMurray v P.S. El., 224 AD2d 668, 639 NYS2d 720 [2d Dept], lv denied 88 NY2d 811, 649 NYS2d 378 [1996]).

Furthermore, plaintiff failed to submit a copy of the retainer agreement allegedly entered into by him and the law firm for legal services related to the personal injury action, or to offer any other documentary or testimonial evidence demonstrating that such agreement was entered [*5]into with the law firm, not Hubbard. In fact, when questioned at his deposition about a retainer agreement, plaintiff testified only that he met with Hubbard in April 1998 about the personal injury case and that he believes he signed a retainer. Plaintiff also failed to present prima facie proof of the existence of a partnership between the parties in 1998, or that Licari represented himself as a partner of Hubbard's or consented to Hubbard's holding himself as his partner during the time in question (see, Partnership Law §§24, 27; cf., Royal Bank & Trust Co. v Weintraub, Gold & Alper, 68 NY2d 124, 506 NYS2d 151 [1986]; Fleet Bank NH v Royall, 218 AD2d 727, 630 NYS2d 559 [2d Dept 1995]). Accordingly, plaintiff's motion for an order granting him partial summary judgment on the issue of defendants' liability for legal malpractice is denied.

Dated: August 5, 2004__________

J.S.C. Footnotes

Footnote 1:Although the notice of motion requests partial summary judgment in favor of plaintiff on the issue of liability, plaintiff withdrew that portion of the application addressed to the first cause of action, conceding that issues of fact exist as to whether Hubbard's negligence was the proximate cause of the alleged damages.