Reyes v Leuzzi
Annotate this CaseDecided on November 9, 2005
Supreme Court, New York County
Teresa Reyes, Plaintiff,
against
Joseph L. Leuzzi, Defendant.
107965/02
Walter Tolub, J.
In this action for legal malpractice, defendant, Joseph L. Leuzzi, moves, pursuant to CPLR 3212, for summary judgment dismissing the Complaint.
Plaintiff, Teresa Reyes opposed the motion and cross-moves for summary judgment (1) on the issue of defendant's liability, and (2) dismissing defendant's affirmative defenses.
Background
The following facts are gleaned from the submission of the parties. For several years, nonparty Rita DeLorenzo had employed plaintiff as a bookkeeper for a building she owned at 53 Irving Place, New York, New York. In light of their relationship, Rita DeLorenzo made a $100,000 bequest to plaintiff in her Last Will and Testament. She also named plaintiff as a beneficiary under two annuity policies, one from Sun Life Insurance and Annuity Company of New York (Sun Life"), Contract No. 69-6900-023927, in the amount of $500,000, purchased on May 13, 1996, and the other from Hartford Insurance Co., Inc. ("Hartford"), Certificate No. 710143471, in the amount of $500,000, purchased on May 20, 1997. The annuity policies were serviced by Merrill Lynch.
Defendant served as counsel for Rita DeLorenzo on several matters, and even drafted her Last Will and Testament. Rita DeLorenzo died on April 28, 2000, and Surrogate's Court, New York County appointed defendant, along with Joya Paterson and John Rumpel, Rita DeLorenzo's sister-in-law and nephew, respectively, as coexecutors of her Estate.
Upon learning of the existence of the annuity policies, defendant sent a letter, dated June 9, 2000, to Merrill Lynch inquiring about the information needed to apply for the proceeds. Merrill Lynch responded by letter, dated June 16, 2000, informing defendant that plaintiff, the beneficiary of the annuities, needed to complete certain paperwork and submit a certified copy of Rita DeLorenzo's death certificate. A copy of the Merrill Lynch letter was also sent to plaintiff.
It is undisputed that defendant agreed to assist plaintiff in completing the necessary paperwork to collect the proceeds from the two annuity policies. However, the parties sharply dispute defendant's role in assisting plaintiff. In the Complaint, plaintiff alleges that she trusted that defendant was acting as her attorney and in her best interest to collect the annuity proceeds. Defendant urges that he merely consented to help plaintiff file the forms required by the annuity companies, and that he expressly declined plaintiff's request that he serve as her attorney since he was already representing the Estate. In any event, plaintiff, reportedly frustrated by defendant's inaction, retained counsel to assist her in collecting on the annuities.
Thereafter, concerns about Federal and State estate tax consequences prompted the Estate to file a petition in Surrogate's Court, New York County, challenging the validity of the annuity policies. The petition essentially alleged that Rita DeLorenzo was aged, in poor physical health, and mentally incompetent when she purchased the annuity policies. The Estate obtained a preliminary injunction restraining the release of the proceeds of the annuities to plaintiff, pending the action, and the parties eventually settled the action with plaintiff receiving the sum of $730,000 from both annuity policies. [*2]
Plaintiff commenced this action seeking to recover damages from defendant for allegedly impeding her efforts to collect under the two annuity policies. In the first cause of action, for legal malpractice, plaintiff alleges that defendant undertook to represent her in collecting the proceeds from the two annuity policies, and that defendant's representation was fraudulent, negligent, and improper in that (1) he failed to disclose the conflict of interest resulting from his representation of both plaintiff and the Estate; (2) failed to take any steps to collect the proceeds from the annuity policies; (3) failed to provide plaintiff with Rita DeLorenzo's death certificate, thereby impeding plaintiff's ability to collect on the annuity policies; and (4) procured the preliminary injunction restraining plaintiff's ability to collect on the annuity policies.
The second cause of action, sounding in fraud, essentially alleges that plaintiff relied to her detriment on defendant's knowingly false representation that he would assist her in collecting the proceeds from the two annuity policies. The third cause of action alleges that defendant breached a fiduciary duty to plaintiff by failing to timely provide Rita DeLorenzo's death certificate to Sun Life and Hartford, and by filing the petition in Surrogate's Court challenging the validity of the annuities. The fourth cause of action alleges that defendant tortiously interfered with plaintiff's contracts with Sun Life and Hartford by failing to timely submit Rita DeLorenzo's death certificate and seeking the restraining order in Surrogate's Court, thereby impeding plaintiff's ability to collect on the annuity policies.
Defendant answered generally denying the allegations in the Complaint. The competing motions for summary judgment ensued.
DISCUSSION
It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]); Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra). Mere conclusions, expression s of hope, or unsubstantiated allegations or assertions are insufficient to defeat summary judgment (id.).
As stated, the Complaint alleges claims against defendant for legal malpractice, fraud, breach of fiduciary duty, and tortious interference with contract in connection with plaintiff's efforts to collect the proceeds from the annuity policies. In order to establish her claim for legal malpractice, plaintiff must make a prima facie showing that an attorney-client relationship did in fact exist since, it is well settled that in the absence of fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity for harm caused by professional negligence (see Caiti v Kimel Funding Corp., 154 AD2d 639, 640 [2d Dept 1989]). In addition, plaintiff must demonstrate that defendant breached a duty owed to her, resulting in damages (see McCoy v Feinman, 99 NY2d 295, 301-302 [2002]).
In seeking summary judgment dismissing the legal malpractice claim, defendant essentially contends that no attorney-client relationship existed between the parties; that his actions were not the proximate cause of plaintiff's damages; and that, in any event, plaintiff did not suffer any damages as a result of her dealings with him. To support his position, defendant asserts that plaintiff never signed a retainer agreement or paid him a fee, and that plaintiff also never filed a consent to change attorney form before retaining another attorney. In addition, defendant relies, in part, on plaintiff's affidavit in opposition to the petition in the Surrogate Court proceeding in which plaintiff acknowledged that defendant was not her attorney in connection with the annuity policies (Affid of Reyes, Not of Mot, Exh Y, ¶19), and that she retained alternate counsel (id., ¶ 21).
In opposition, and in support of her motion for summary judgment, plaintiff maintains that defendant committed legal malpractice by simultaneously representing her and the Estate. [*3]Plaintiff states that defendant agreed to complete the paperwork necessary for her to collect the proceeds from the annuity policies, and even caused her to sign authorizations allowing him to communicate directly with the annuity companies on her behalf. She states further that she trusted that defendant was acting as her attorney and in her best interest when she signed the authorizations. She insists that she retained counsel to assist her in procuring the proceeds only after discovering that defendant never mailed the paperwork required by the annuity companies.
The rule is clear that an attorney-client relationship arises only when a client contracts with an attorney for the purpose of obtaining legal advice or services (see Matter of Priest v Hennessy, 51 NY2d 62, 68-69 [1980]). Furthermore, since formality is not essential to the formation of the contract, it is necessary to look to the words and actions of the parties to ascertain if an attorney-client relationship was formed (see Kubin v Miller, 801 F Supp 1101, 1115 [SD NY 1992]). However, while an attorney-client relationship may arise from the words and actions of the parties, one party's unilateral beliefs and actions do not confer upon him or her the status of a client (see Solondz v Barash, 225 AD2d 996, 998 [3d Dept 1996]). Rather, the client must establish that the attorney undertook to render specific legal advice or services (see Sucese v Kirsch, 199 AD2d 718, 719 [3d Dept 1993]).
In determining whether an attorney-client relationship exists, courts have considered, among other things, (1) whether a fee arrangement was entered into or a fee paid; (2) whether a written contract or retainer agreement exists indicating that the attorney accepted representation; (3) whether there was an informal relationship whereby the attorney performed legal services gratuitously; (4) whether the attorney actually represented the individual in one aspect of the matter; (5) whether the attorney excluded the individual from some aspect of a litigation in order to protect another client's interest; and (6) whether the individual reasonably believed that the attorney was representing him or her (see First Hawaiian Bank v Russell & Volkening, Inc., 861 F Supp 233, 238 [SD NY 1994]).
Applying these factors, the Court concludes that defendant sufficiently demonstrates that no attorney-relationship existed between the parties, and that plaintiff fails to present any evidence to warrant a trial on the issue. The submissions make clear that plaintiff never entered into a retainer agreement with defendant regarding legal services, and never paid him any fees. Nor did plaintiff undertake to discharge or substitute defendant when she retained counsel. Plaintiff's assertion that she trusted that defendant was acting as her attorney and in her efforts to collect the proceeds from the annuity policies is flatly contradicted by her affidavit in opposition to the petition in the Surrogate Court proceeding in which she acknowledged that defendant was not her attorney in connection with the annuity policies. In the absence of a prima facie showing of the existence of an attorney-client relationship between the parties, plaintiff's cause of action for legal malpractice must fail as a matter of law.
The causes of action for fraud, breach of fiduciary duty, and tortious interference with contract must also be dismissed as duplicative of the legal malpractice claim since they arise from the same facts as the legal malpractice claim and do not allege distinct damages (see Mecca v Shang, 258 AD2d 569, 570 [2d Dept 1999]).
Accordingly, it is
ORDERED that the motion for summary judgment is granted and the Complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the cross motion for summary judgment is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated: November 9, 2005ENTER:
___________________
J. S. C.
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