Somma v Dansker & Aspromonte Assoc.

[*1] Somma v Dansker & Aspromonte Assoc. 2006 NY Slip Op 52096(U) [13 Misc 3d 1232(A)] Decided on September 15, 2006 Supreme Court, New York County Shulman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2006
Supreme Court, New York County

Aniello Somma, Plaintiff,

against

Dansker & Aspromonte Associates, Paul Dansker, Esq. and Jonathan D. Heller, Esq., Defendants.



102439/06

Martin Shulman, J.

Defendants Dansker & Aspromonte Associates ("D&A"), Paul Dansker, Esq. ("Dansker") and Jonathan O. Heller, Esq. ("Heller")[FN1] move to dismiss the complaint in this action pursuant to CPLR 3211(a)(1) and (7). Plaintiff Aniello Somma ("Somma" or "plaintiff") opposes the motion.

Somma's verified complaint (Exh. A to motion) alleges two causes of action against D&A and attorneys Dansker and Heller (collectively "defendants" or "movants") for legal malpractice and breach of contract, arising from defendants' representation of plaintiff in a maritime personal injury action entitled Somma v. Buchanan Marine L.P. and Buchanan Marine, Inc. (E.D.NY Index No. 02 CV 6184) (the "underlying action").[FN2] Although the underlying action ultimately settled before trial, Somma's first cause of action alleges that but for defendants' negligence, he "would have had a higher settlement or trial verdict . . ." (Exh. A to motion at ¶33). The second cause of action for breach of contract is premised upon the same alleged acts of negligence pleaded in the first cause of action.

The Underlying Action

The underlying action was based upon an August 2, 2001 elbow injury Somma sustained while he was employed as a deck hand by Buchanan Marine, L.P. and/or Buchanan Marine, Inc. (collectively "Buchanan"), both of which were named as defendants in the underlying action. As discussed infra, plaintiff claims that the movants were negligent in various aspects of their representation. [*2]

Defendants conducted discovery on Somma's behalf during the course of the underlying action. On May 25, 2004, the parties entered into a joint pre-trial order (the "PTO"). Plaintiff contends that movants' signing of the PTO "sealed [his] case, and set the upper limits on the settlement viability of [his] case." (Somma Opp. Aff. at ¶21; Exh. H to motion). Specifically, he alleged that the PTO fails to: make claims for pain and suffering, loss of income, maintenance and cure;[FN3] detail plaintiff's injuries and raise the issue of future surgery; designate an appropriate maritime expert, as opposed to "a generic expert engineer" (Somma Opp. Aff. at ¶22); and set forth unseaworthiness claims.[FN4] Bluestone Opp. Aff. at ¶24.

Defendants allege that within days of entering into the PTO, they were contacted by Florrie Wertheimer, Esq. ("Wertheimer" or "successor counsel"), who "advis[ed] that the plaintiff had retained her to handle plaintiff's claim" in the underlying action as co-counsel (Heller Aff. at ¶14). Movants contend, and Somma does not dispute,[FN5] that Wertheimer subsequently contacted Buchanan's counsel and held herself out as Somma's attorney in the underlying action stating that she intended to move to amend the PTO (Heller Aff. at ¶¶15, 16; Exh. J to motion). However, no application to amend the PTO was ever made.

By letters dated May 26, 2005 and June 2, 2005, plaintiff advised D&A that he was discharging them as counsel (Exhs. K & L to motion). By letter to the federal court dated July 28, 2005, Somma reiterated that he had fired D&A and advised of his acceptance of a settlement offer of $65,000.00 (Exh. M to motion). By order dated August 24, 2005, the federal court granted D&A's application to withdraw as plaintiff's counsel and enforced a fee sharing agreement entered into between Wertheimer and D&A (Heller Aff. at ¶19; Exhs. O & P to motion).

Analysis

On a motion to dismiss a complaint, the court accepts the facts alleged as true and determines simply whether the facts alleged fit within any cognizable legal theory. [*3]Morone v. Morone, 50 NY2d 481, 429 NYS2d 592 (1980). However, if the court considers extrinsic evidence on a CPLR 3211 motion such as affidavits and exhibits the complaint's allegations should not be deemed true. Biondi v. Beekman Hill House Apt. Corp., 257 AD2d 76, 80-81, 692 NYS2d 304 (1st Dept. 1999), affd., 94 NY2d 659, 709 NYS2d 861 (2000). " [A]llegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence,' are not presumed to be true and accorded every favorable inference [citations omitted]." Id. "Where, as here, the moving party offers evidentiary material, the court must determine whether the proponent of the pleading has a cause of action, not whether she has stated one [citations omitted]." Kantrowitz & Goldhamer, P.C. v. Geller, 265 AD2d 529, 697 NYS2d 137 (2nd Dept., 1999)(when read with the evidentiary record, which included a stipulation of settlement entered into in open court, counterclaim for legal malpractice failed to state a cause of action).

In arguing that the complaint should be dismissed, movants have addressed each of the alleged acts of negligence detailed in the complaint by explaining the rationale for the various decisions made in representing Somma in the underlying action. To this end, defendants attach pleadings, correspondence, discovery responses, deposition transcripts and other documentation concerning the underlying action. However, an analysis of each of defendants' supporting arguments is unnecessary to the determination of this motion given Somma's election to settle the underlying action rather than move to amend the PTO.

"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 (citations omitted). In order to survive dismissal, the complaint must show that but for counsel's alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages (citations omitted), so that a failure to establish proximate cause requires dismissal (citation omitted) regardless whether negligence is established . . ." Pellegrino v. File, 291 AD2d 60, 63, 738 NYS2d 320, 323 (1st Dept., 2002), lv. to app. den., 98 NY2d 606, 746 NYS2d 456 (2002). Speculative damages cannot be a basis for legal malpractice and conclusory allegations of damages are insufficient. Id.

Here, Somma cannot establish that defendants' alleged mishandling of the underlying action is the proximate cause of any purported damages he claims to have sustained. Specifically, plaintiff cannot demonstrate that his decision to settle the underlying action was effectively compelled by the defendants' alleged mistakes. Bernstein v. Oppenheim & Co., P.C., 160 AD2d 428, 430, 554 NYS2d 487, 489

(1st Dept., 1990). See also, Fusco v. Fauci, 299 AD2d 263, 749 NYS2d 715

(1st Dept., 2002)(plaintiff must demonstrate that settlement was caused by the malpractice and resulting damages, to wit, that the value of the underlying claim was in excess of the settlement).

The PTO is central to plaintiff's claims against the movants in that it embodies plaintiff's laundry list of the defendants' alleged failures which are claimed to constitute malpractice such as the failure to specifically seek damages for lost earnings, maintenance and cure. As defendants note, despite the numerous deficiencies which Somma cites to and successor counsel's purported "game plan" to aggressively move to [*4]amend the PTO, it is undisputed that Wertheimer made no attempt to amend the PTO even to account for medical treatment Somma obtained after the PTO was signed. In response, plaintiff merely speculates that the federal court would have denied any request to amend the PTO (Bluestone Opp. Aff. at ¶26). Had the federal court actually denied plaintiff's request to amend the PTO, this court might have had a basis to conclude that the complaint herein was sufficient to withstand a motion to dismiss. However, absent such a determination, Somma's claims are too speculative to establish either proximate cause or specific damages.

Finally, at the time Somma agreed to settle the underlying action, he had discharged D&A from representing him in the underlying action. In opposition to this motion, Somma does not dispute Wertheimer's involvement in the settlement process and that there was sufficient opportunity for her to protect his rights. Golden v. Cascione, Chechanover & Purcigliotti, 286 AD2d 281, 729 NYS2d 140 (1st Dept., 2001); Perks v. Lauto & Garabedian, 306 AD2d 261, 262, 760 NYS2d 231 (2nd Dept., 2003). In opposing this motion, it is notable that Somma has even failed to submit an affidavit from Wertheimer.

As plaintiff cannot establish proximate cause or specific damages, the first cause of action for legal malpractice must be dismissed. Similarly, the second cause of action for breach of contract must be dismissed as redundant of the legal malpractice cause of action. Pellegrino v. File, supra , 291 AD2d at 64, 738 NYS2d at 324; Inkine Pharmaceutical Co., Inc. v. Coleman, 305 AD2d 151, 152, 759 NYS2d 62, 63

(1st Dept., 2003).

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss is granted and the complaint is dismissed; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

The foregoing constitutes the Decision and Order of this Court. Courtesy copies of this Decision and Order have been provided to counsel for the parties.

Dated: New York, New York

September 15, 2006

Hon. Martin Shulman, J.S.C. Footnotes

Footnote 1: Heller was incorrectly named in this action as "Jonathan D. Heller".

Footnote 2: The underlying action was commenced pursuant to the Jones Act (46 U.S.C. §688(a)) in the Supreme Court of the State of New York, Richmond County on September 19, 2002, but was subsequently removed to the United States District Court, Eastern District of New York (the "federal court"). Heller Supp. Aff. at ¶¶ 5 and 6; Exh. C to motion.

Footnote 3: A ship's owner or master is obligated, under general maritime law, to provide a crew member who becomes sick or injured while employed in the ship's service with "maintenance and cure" (see e.g., Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 [1938]). "Maintenance" is the right of a seaman to receive pay for food and lodging, and "cure" is the right to receive funds for necessary medical care for the treatment of the illness or injury (see e.g., Vaughan v. Atkinson, 369 U.S. 527, 531 [1962]; Calmar S.S. Corp. v. Taylor, supra , 303 U.S. at 528).

Footnote 4: Although Somma's counsel asserts that no claims of unseaworthiness were made in the underlying action, this court's review of the record indicates that such claims were pleaded in the complaint in the underlying action at paragraph 19 thereof (Exh. C to motion) and in the PTO at page 3, section V(1)(b) (Exh. H to motion).

Footnote 5: Somma claims that "Ms. Wertheimer was never retained in the Somma v. Buchanan matter, but was simply trying to help." (Somma Opp. Aff. at footnote 6).