Lopes v Mangiatordi, Maher & Lemmo, LLC
Annotate this CaseDecided on September 27, 2004
Supreme Court, Queens County
Vincenzo Lopes, Plaintiff,
against
Mangiatordi, Maher & Lemmo, LLC, et al., Defendants.
7809/04
Joseph G. Golia, J.
The defendants have moved for an order, inter alia, dismissing this action pursuant to CPLR 3211(a)(1) and (7).
On July 10, 1992, plaintiff Vincenzo Lopes, the employee of a general contractor, allegedly sustained personal injury by falling from a ladder at a construction site located at 3023 West 29th Street, Brooklyn, New York. A rung of the ladder had allegedly loosened, and the ladder had allegedly moved, causing Lopes to fall to the ground. A subcontractor hired to perform concrete superstructure work had allegedly built and controlled the ladder. On or about December 5, 1992, the plaintiff and his wife retained the defendants to provide legal representation to them in connection with an action to be brought arising from the accident. On or about July 8, 1993, the defendants, acting on behalf of the plaintiff and his wife, began an action for personal injury in the New York State Supreme Court, County of Kings against the purported owner of the site and a subcontractor (Lopes v Interstate Concrete, Inc., Index No. 22781/93). During the course of litigation, various parties were added and dropped, and the final amended complaint dated June 22, 1997 in the action names only the subcontractor, Interstate Concrete, Inc., and related entities as defendants. On February 8, 2000, the subcontractor moved for partial summary judgment dismissing that part of the complaint against it which the plaintiffs had based on Labor Law §§ 200, 240(1), and 241(6). The IAS Part granted the motion, and the Appellate Division, Second Department affirmed on April 15, 2002. (See, Lopes v Interstate Concrete, Inc., 293 AD2d 579.) The Appellate Division [*2]held that the plaintiffs had failed to raise a genuine issue of fact pertaining to whether the subcontractor controlled the plaintiff worker's activity, a prerequisite for the subcontractor's liability under the Labor Law causes of action. On or about April 2, 2004, plaintiff Vincent Lopes began the instant malpractice action against the defendant attorneys, asserting that they had committed malpractice by failing to prosecute claims based on the Labor Law against the owner of the property. All claims against the owner are now allegedly time-barred.
CPLR 3211 provides in relevant part: "(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded on documentary evidence***." In order to prevail on a CPLR 3211(a)(1) motion, the documentary evidence submitted "must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff's claim***." (Fernandez v Cigna Property and Casualty Insurance Company, 188 AD2d 700, 702; Vanderminden v Vanderminden, 226 AD2d 1037; Bronxville Knolls, Inc. v Webster Town Center Partnership, 221 AD2d 248.) The defendants herein contend that this action for legal malpractice is premature because the plaintiffs' cause of action against the subcontractor based on common-law negligence remains viable in the underlying action as may be determined from the complaint in that case and from the decision rendered by the Appellate Division.
"An action for legal malpractice requires proof of the attorney's negligence, a showing that the negligence was the proximate cause of the plaintiff's loss or injury, and evidence of actual damages***." (Pellegrino v File, 291 AD2d 60, 63; see, Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63; Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, 170 AD2d 108, 114, affd 80 NY2d 377.) In order to establish a prima facie case of legal malpractice, a plaintiff must prove actual damages proximately caused by attorney negligence. (Lavanant v General Acc. Ins. Co. of America, 212 AD2d 450.) "In order to establish the elements of proximate cause and actual damages in a malpractice case, the plaintiff must show that but for the attorney's negligence, what would have been a favorable outcome was an unfavorable outcome***." (Zarin v Reid & Priest, 184 AD2d 385, 386; see, Katash v Kranis, 229 AD2d 305.)
The plaintiff herein cannot show that he has sustained demonstrable damages for legal malpractice proximately caused by the defendants' alleged negligence until after the resolution of the underlying personal injury action, if then. (See, Pudalov v Brogan, 103 Misc 2d 887; Taylor v Robustelli, New York State Supreme Court, County of Westchester, Index No. 1401/98; Schwartzberg v Tucciarone, New York State Supreme Court, County of Westchester, Index No. 1197/00.) There is still the possibility of recovery from the subcontractor. The appeal in the underlying action did not directly concern the cause of action for common-law negligence. While the Appellate Division dismissed the cause of action based on Labor Law § 200 against the subcontractor on the ground that it did not have the authority to control the worker's activity producing the injury (see, Lopes v Interstate Concrete, Inc., supra), there remains an open issue concerning whether the dismissal of that cause of action necessitates the dismissal of the cause of action for common-law negligence. That issue should be determined by the court having jurisdiction over the underlying action and over the proper parties. At this time, the cause of action for common- law negligence remains pending in the underlying action, not having been discontinued or otherwise disposed of.
Accordingly, that branch of the defendants' motion which is for an order dismissing the complaint against them pursuant to CPLR 3211(a)(1) is granted. The remaining branches of the motion are denied as moot.
Short form order signed herewith.
Dated: September 27, 2004
J.S.C.
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