Alaimo v Mongelli

[*1] Alaimo v Mongelli 2008 NY Slip Op 50646(U) [19 Misc 3d 1111(A)] Decided on February 25, 2008 Supreme Court, Nassau County Spinola, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2008
Supreme Court, Nassau County

Richard J. Alaimo and Laura Alaimo, Plaintiffs

against

Michael F. Mongelli, Michael F. Mongelli P.C., Wallace Leinheardt and Jaspan Schlessinger Hoffman, LLP, Defendants.



07-10651



Plaintiff's counsel - Harry Kresky

Defendant Jaspan Scghlessinger's counsel - James J. Maloney

Defendant Mongelli - pro se

Joseph P. Spinola, J.

Motion by defendants Michael F. Mongelli and Michael F. Mongelli P.C. (collectively referred to as Mongelli) pursuant to CPLR 3212 for an order awarding partial summary judgment dismissing the First, Second, Third and Fourth causes of action against them is granted in part and the Second, Third and Fourth Causes of Action are dismissed as against the Mongelli defendants. The motion is denied with respect to the First cause of action. All claims raised by Laura Alaimo against Mongelli are dismissed. Cross-motion by plaintiff Richard Alaimo dismissing the Eleventh Affirmative Defense of lack of personal jurisdiction is granted without opposition. Costs and attorneys fees are denied.

This is an action by plaintiff Richard Alaimo alleging legal malpractice by the named defendants. He alleges that the Mongelli defendants committed legal malpractice by failing to "secure a stay of enforcement" of a Surrogate's order dated June 28, 2005 imposing a $630,000 surcharge upon him, and in failing to perfect an appeal of the order.

The following events led to the June 28th order. Alaimo, who is an attorney, [*2]represented 74 year old Vito Cristina early in 2000. He prepared a will for Cristina and was appointed to act as executor. Cristina wished to bequeath his estate to a Monica Apostale, but only if she was married to him at the time of his death. He died on May 13, 2000, at a time when he was not married to Apostale and his estate became subject to the laws of intestacy.

Several days prior to his death, Cristina, who was survived by two siblings, told one of his brothers that he had been accused of fathering a child by a young woman named Stephanie DePace. If a DNA test showed him to be the father of the four month old child Katlyn, then it was his wish that Alaimo convey to DePace certain real property situated at 10 Hideaway Lane, Marlboro, NY. Alaimo was present when Cristina made this statement to his brother.

In July of 2000 DePace married Philip Toro, who, at the time of the child Katlyn's birth in January of 2000 had legally admitted paternity. Thereafter DePace refused to allow any testing of the child.

Less than a year later, in April of 2001, DePace commenced a proceeding in the Family Court for child support. Toro disclaimed paternity and moved to vacate the order adjudging him to be the father of Katlyn. In April of 2002, tests of a tissue sample from the decedent and from the child found the decedent to be the likely father, and the Family court issued an order in March of 2003 declaring the deceased Cristina to be the father of the Katlyn as of July 1, 2001.

After the Family Court declaration of paternity, DePace commenced a proceeding in the Surrogate's Court against Alaimo for breach of fiduciary duty in distributing the decedent's estate to persons other than the child, who, it was alleged, was his sole heir under the laws of intestacy. Alaimo had not listed the child as a possible heir in the Surrogate's proceedings.

DePace moved for partial summary judgment. Alaimo, represented by Mongelli, argued that DePace had failed to meet the requirements of EPTL 4-1.2(a)(2)(C) to establish that the decedent had openly and notoriously acknowledged the child as his own prior to his death.

By order dated June 28, 2005, the Surrogate found that the decedent's instructions to his brother in the presence of Alaimo constituted "open and notorious acknowledgment" of paternity of Katlyn (hereafter the June 28th order). The court ruled that Alaimo breached his fiduciary duty by distributing the assets of the estate with knowledge that the decedent may have fathered a child out of wedlock who would be entitled to his estate, and subjected him to a surcharge of $630,000 plus 9% interest. [*3]

On this motion Mongelli seeks partial summary judgment on Alaimo's First, Second, Third and Fourth causes of action. The First alleges that Mongelli failed to take the necessary steps to secure a stay of enforcement of the $630,000 surcharge imposed by the June 28th Surrogate's order.

The Second alleges that Mongelli failed to appeal the June 28th Surrogate's order which would have been reversed based upon Matter of Davis (27 AD3d 124, 128-129 [2d Dept 2006]), which held that a private conversation does not constitute open and notorious acknowledgment of paternity.

The Third cause of action alleges that Alaimo did not have knowledge of the child's paternity at the time of distribution of Cristina's estate, and thus the Surrogate's order surcharging him would have been reversed on appeal.

The Fourth cause of action alleges that Mongelli agreed to prosecute an appeal for Alaimo, breached the agreement and that the appeal was dismissed for failure to perfect in September of 2006.

Mongelli contends that he cannot be held liable for a failure to prosecute Alaimo's appeal because it was outside the scope of his retainer agreement (see, Base Corp. v. Davis Polk & Wardwell, 8 NY3d 428, 435 [2007]), which specifically excluded appeals and post judgment proceedings.

Mongelli also contends that his exchange of letters with Alaimo in December of 2005 did not create a contract. He argues that his letter dated December 14, 2005 does not constitute an offer which Alaimo could accept. The letter stated:

Before preparing the Notice of Appeal . . . to take the appeal of the June 28, 2005 Order I would request that (i) you fax me a note as to your direction to take such an appeal and whether or not you want me to move to reargue and renew at this time.

Alaimo's December 15, 2005 reply states:

I hereby authorize you to effect an appeal of that order and respectfully request that you petition the Appellate Division and/or the Surrogate's Court for a stay of the execution of order . . . I would appreciate it if you would file the notice of appeal this coming week . . .

Contrary to Mongelli's contention, Alaimo's letter does not constitute a mere request. The plain import of the two letters is that Mongelli asked for a direction to take the necessary steps to appeal the June 28th order and received it. He filed a Notice of [*4]Appeal on December 27th.

The absence of a formal retainer agreement is not determinative. Contrary to Mongelli's contention a retainer agreement is not a prerequisite to an enforceable contract or an attorney client relation (see, Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54, 56 [2d Dept 2007]; 22 NYCRR 1215.1). "An attorney-client relationship is established where there is an explicit undertaking to perform a specific task'"(Shanley v. Welch, 31 AD3d 1127, 1128 [4th Dept 2006]).

Nevertheless, the existence of an attorney client relation or an enforceable contract to prosecute Alaimo's appeal is not relevant because he discharged Mongelli before the time to appeal expired. The "client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38, 43 [1990]). Thus performance of the alleged contract to appeal was prevented by plaintiff. "It is basic contract law that one who prevents or makes impossible the performance of a contract cannot take advantage of its non-performance" (Ward v. Melis, 18 Misc 3d 1130(A) [Supreme Court Sullivan County 2004], affd 28 AD3d 970 [3d Dept 2006]). Accordingly, the Fourth cause of action for breach of contract is dismissed.

With regard to the claims of malpractice, an attorney cannot be held liable for legal malpractice where he was discharged prior to the relevant events or where the proximate cause of damages sustained by the client was not the attorney's alleged failure to timely take action but the "intervening and superseding failure" of the client's "successor attorneys" to "timely" act on behalf of the client (Pyne v. Block & Associates, 305 AD2d 213 [1st Dept 2003]; see also Hunt v. Kolken, 49 AD2d 747 [2d Dept 1975], affd 40 NY2d 949 [1976][discharged attorney not be liable for subsequent events]).

Here, Mongelli timely filed a notice of appeal on behalf of plaintiff on December 27, 2005 and plaintiff had six months thereafter to perfect, i.e., until June 27, 2006 (22 NYCRR § 670.8[e][1]) . He was discharged on March 22, 2006 with three months remaining to perfect. Alaimo memorialized the telephone discharge of Mongelli in a letter of the same date and included consent to change attorney forms for Mongelli's signature.

There is no factual dispute with regard to the discharge of Mongelli prior to the expiration of the time to perfect the appeal from the June 28th order. However, it is not clear when Jaspan commenced representation of Alaimo and whether the firm can be considered a "superceding and intervening" cause of dismissal of the appeal for failure to perfect or make application to extend the time to appeal the June 28th order (22 NYCRR §670.8[d][2]). In any event, Alaimo had sufficient time to secure counsel to perfect the appeal. Thus, it cannot be said that "but for" Mongelli's failure to perfect the appeal [*5]Alaimo would not have suffered damages, and Mongelli has made a "prima facie showing . . . that . . . plaintiff cannot prove at least one of the essential elements of a legal malpractice claim" (Carrasco v. Pena & Kahn,AD3d, 2008 WL 332225 [2d Dept 2008]). Accordingly, the second and third causes of action are dismissed.

With regard to the First cause of action and Mongelli's alleged failure to secure a stay of enforcement of the surcharge, Mongelli avers that the parties had no agreement regarding this service. However, Mongelli's December 14, 2005 letter to Alaimo states in relevant part:

I feel your resources would be better devoted to a motion in the Appellate Division for a stay of the proceeding . . . Absent a stay obtained from the Appellate Division pursuant to CPLR 5519(c), the Public Administrator is free to continue any and all post judgment collection efforts.

. . .

I would appreciate a prompt payment of the enclosed bill before you decide on . . . moving for a stay in the Appellate Division at this time.

As noted above, Alaimo's reply asked that Mongelli "petition the Appellate Division and/or the Surrogate's Court for a stay of the execution of order". He also made a $10,000 payment toward his attorney's fees in January of 2006 .

The foregoing letters and payment create a factual issue as to whether the parties agreed that Mongelli would seek a stay of enforcement in the Appellate Division. His failure to do so occurred prior to his discharge as counsel and thus the First cause of action withstands the motion for summary judgment.

With regard to any claims against Mongelli by Laura Alaimo, her claims against Mongelli are dismissed as there was no contractual or attorney/client relation between them.

This constitutes the decision and order of the Court.

E N T E R:

_________________________

Joseph P. Spinola, Justice

Dated: February 25, 2008Supreme Court, Nassau County