Riley v Segan, Nemerov & Singer, P.C.

[*1] Riley v Segan, Nemerov & Singer, P.C. 2009 NY Slip Op 52697(U) [26 Misc 3d 1209(A)] Decided on December 14, 2009 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 3, 2010; it will not be published in the printed Official Reports.

Decided on December 14, 2009
Supreme Court, Bronx County

Lisa Riley and KEVIN RILEY, Plaintiffs,

against

Segan, Nemerov & Singer, P.C., and SEGAN, CULHANE, NEMEROV & SINGER P.C., , Defendants.



303097/08



Appearances of Counsel:

Attorneys for Plaintiffs: Law Offices of Mark Kressner, Bronx, NY

Attorneys for Defendants: Taub, Lieberman, Straus & Shrewsberry, LLP, Hawthorne, NY

George D. Salerno, J.

Defendants, SEGAN, NEMEROV & SINGER, P.C., and SEGAN, CULHANE, NEMEROV & SINGER, P.C., successor law firm, (hereinafter Segan), move to "reargue" the determination rendered by this Court which denied Segan's prior pre-answer motion to dismiss plaintiffs' complaint on the ground that plaintiffs' claims are time-barred.

Plaintiffs commenced this action against Segan, the law firm which plaintiff previously retained to bring a medical malpractice action on their behalf against a physician who performed breast reduction surgery on plaintiff Lisa Riley.[FN1] Plaintiffs' action against this surgeon, Dr.Goldstein, was dismissed when the attorneys who represented Dr. Goldstein successfully made a motion dismissing plaintiffs' complaint.

Procedural History

This Court previously denied Segan's motion to dismiss plaintiffs' complaint because their moving papers were deficient. (See Order, dated September 23, 2008 which outlines the deficiencies in Segan's motion papers).

In support of their prior motion, Segan's Counsel relied upon a March 7, 2005 letter, which he contended demonstrates the fallibility of plaintiffs' legal malpractice claim. Counsel asserted that this Court failed to recognize the importance of this letter.

Defendants' Counsel, in the instant motion to reargue, asserts that this [*2]March 7, 2005 letter was attached to their Reply papers, which the Court allegedly "overlooked" when it denied Segan's motion to dismiss. (See Affirmation by Shrewsberry, dated Nov. 24, 2008, ¶8). In support of this proposition, Counsel sets forth CPLR, Rule 2221, which provides that a motion for reargument "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." [emphasis added]

However, Segan fails to recognize the well-settled rule that the court will not consider "any new arguments, grounds, or evidence advanced by defendants in their reply submissions." [emphasis added] Litvinov v. Hodson, 34 AD3d 1332 (4th Dept. 2006). This is because "the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion." Watts v. Champion Home Builders Co., 15 AD3d 850, 851 (4th Dept. 2005).

"This rule is generally employed ... to prevent a movant from remedying

basic deficiencies in its prima facie showing by submitting evidence inreply, thereby shifting to the nonmoving party the burden of demonstratingthe existence of a triable issue of fact at a time when that party has neitherthe obligation nor opportunity to respond (Azzopardi v American BlowerCorp., 192 AD2d 453, 454, 596 NYS2d 404 [1993]; see e.g. Batista vSantiago, 25 AD3d 326, 807 NYS2d 340 [2006]; Migdol v City of NewYork, 291 AD2d 201, 737 NYS2d 78 [2002])."Matter of Kennelly v. Mobius Realty Holdings, LLC, 33 AD3d 380 (1st Dept 2006).

Consequently, this Court does not find any basis warranting granting reargument.

Factual Issues

In October 1997, plaintiffs retained the Segan firm to represent them with regard to bringing an action against Dr.Goldstein for malpractice. The Segan firm prepared and filed a complaint on behalf of plaintiffs, in Bronx Supreme Court, which sets forth two causes of action. The first cause of action, on behalf of Lisa Riley, asserts a claim for lack of informed consent for surgery performed by Dr. Goldstein, on June 22, 1995. The second cause of action, asserts a derivative cause of action on behalf of Kevin Riley, who is Lisa Riley's father, for the loss of [*3]services of his daughter.[FN2]

On about August 13, 2001, Segan filed a Note of Issue, affirming that plaintiffs' action was ready for trial.[FN3]

The Segan firm thereafter appeared in the trial assignment part of this court on January 15, 2003, and February 7, 2003, presumably ready for trial. At the next court appearance on February 14, 2003, the action against Dr. Goldstein was struck from the trial calendar because Segan, plaintiffs' attorney, was not prepared to proceed to trial. Apparently, plaintiffs' attorneys did not exchange an expert witness disclosure statement required by CPLR 3101(d). It thus appears that Segan had not retained an expert who was prepared to testify on behalf of their clients [FN4] even though plaintiffs' case was in the trial assignment part of this court.

One and one half years later, Leon Segan then sent a letter dated August 25, 2004, to plaintiffs advising his clients that the physician or expert he retained who initially supported the cause of action of lack of informed consent "had his license suspended or revoked"; and, although counsel consulted with another plastic surgeon, the surgeon would not support plaintiffs' claim of lack of informed consent. Segan also wrote, in relevant part, as follows: "under these circumstances, we cannot proceed with the case. We cannot prosecute a cause of action without a supporting plastic surgeon." However, Segan never made a motion to withdraw from representing plaintiffs.

The attorneys representing Dr. Goldstein moved, pursuant to CPLR 3404to dismiss plaintiffs' action for failure to prosecute.[FN5] The motion to dismiss [*4]was presumably served on Segan by February 17, 2005, since that is the date the Order to Show Cause directed service upon Segan plaintiffs' attorneys.

On March 7, 2005, Leon Segan allegedly sent another letter to Plaintiff Kevin Riley with a copy of the Order to Show Cause to dismiss plaintiffs' complaint. Segan's letter advised Kevin Riley that "the attorneys for Dr. Goldstein indicate that no expert's statement was submitted on behalf of Lisa. We attempted to obtain an expert, but he could not support our position." Segan also stated that he would obtain an adjournment of the motion to dismiss "to enable Lisa's new attorneys to have time to respond to the motion." This obviously means that he will continue to represent plaintiffs.

The first court appearance for oral argument on the Order to Show Cause was on March 11, 2005. Segan again appeared on April 8, 2005, when the motion to dismiss was marked submitted.

On April 29, 2005, the court granted the motion to dismiss without opposition, and dismissed the action instituted against Dr.Goldstein on behalf of plaintiffs, upon the ground that plaintiffs' action was not restored within one year after being marked off the calendar. (See Hon. Silver's decision, dated April 29, 2005, which provides that Counsel "Settle Order"). The Order dismissing Plaintiffs' complaint was signed on June 20, 2005. (See Order, plaintiffs' Exhibit "6").

On May 13, 2005, Leon Segan also sent a letter to Plaintiffs, together with a copy of Justice Silver's April 29, 2005 decision dismissing their complaint. Segan acknowledged that he was unable to oppose the motion made on behalf of Dr. Goldstein, since he did not submit an affidavit of merits from a physician; and stated that: "various physicians may have criticized Dr. Goldstein but were not prepared to come to Court to testify." Assuming the accuracy of the argument, plaintiffs' counsel Segan overlooked or is unaware of decisions of the Appellate Division, such as Andersen v. Delaney 269 AD2d 193; 703 NYS2d 714, (1st Dept. 2000), and Osorio v. Brauner, 242 AD2d 511, 662 NYS2d 488 (1st Dept. 1997) lv. denied 91 NY2d 813 (1998), which held that expert testimony is not necessary on the central issue as to what a reasonably prudent person would have done if properly informed.

On or about April 16, 2008, Plaintiffs commenced their legal malpractice action against Segan by filing the Summons and Verified Complaint in Bronx Supreme Court.[FN6] The allegations of negligence against Segan include the failure [*5]to allege a cause of action for medical malpractice; and failure to timely retain an expert physician, which resulted in the court's decision dismissing plaintiffs' action against Dr.Goldstein on April 29, 2005. Plaintiffs allege that they were represented by Segan from October 7, 1997, and that the representation continued until May 13, 2005.

Statute of Limitations

CPLR § 214(6) provides that "an action to recover damages for [legal] malpractice" must be commenced within three years, "regardless of whether the underlying theory is based in contract or tort."

"An action to recover damages arising from an attorney's malpractice must be commenced within three years from accrual (see CPLR 214 [6]). A legal malpractice claim accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court" ... this accrual time is measured from the day an actionable injury occurs." McCoy v. Feinman, 99 NY2d 295, 301 (2002). "[C]ontinuous treatment was first applied in medical malpractice cases (Borgia v City of New York, 12 NY2d 151), its application has been held to be just as appropriate in actions concerning legal malpractice. As this court recently stated, "the rule recognizes that a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered (Siegel v Kranis, 29 AD2d 477)." (Greene v Greene, 56 NY2d 86, 94.) Neither is a person expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed. (McDermott v Torre, supra , at p 407.) Because we interpret the continuous representation rule to toll the Statute of Limitations rather than to delay the point at which the cause of action accrues, its application is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to [*6]represent the client in that case. When that relationship ends, for whatever reason, the purpose for applying the continuous representation rule no longer exists." [emphasis added]

Glamm v. Allen, 57 NY2d 87, 94 (1982).

With respect to the "change or withdrawal of attorney", CPLR 321(b)(1) and (2), provide as follows: "1. ...an attorney of record may be changed by filing with the clerk aconsent to the change signed by the retiring attorney and signedand acknowledged by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the action...

2. An attorney of record may withdraw or be changed by order of thecourt in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, [and] to the attorneys of all other parties in the action..., as the court may direct."

Regarding the obligations of attorneys, 22 NYCRR § 604.1(6) provides that: "Once a client has employed an attorney who has entered an appearance, the attorney shall not withdraw or abandon the case without (I) justifiable cause, (ii) reasonable notice to the client, and (iii) permission of the court." [emphasis added]

As proponents of the instant motion, Segan has the burden to show, prima facie, that it gave unequivocal notice that the attorney-client relationship ended prior to April 16, 2005: "An attorney is required to provide reasonable notice to the client when withdrawing from representation (see CPLR 321[b][2]; Rules of App Div, 1st Dept [22 NYCRR] § 604.1[d][6]), and no definition of reasonable notice would require a client to infer, from ambiguous action or inaction on the part of her attorneys, ... that she is no longer represented. ... [M]ore than equivocal behavior was required to sever the representational relationship." Gotay v. Breitbart, 58 AD3d 25 (1st Dept. 2008).

It has also been established held that the continuous representation doctrine tolls the statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim. McCoy v. Feinman, 99 NY2d 295, 306 (2002).

Analysis

Applying the above principals, this legal malpractice action was timely commenced within three years after its accrual. This legal malpractice claim accrued on the date that plaintiffs' actionable injury occurred, namely, the date of [*7]the Order dismissing the case, June 20, 2005, or on the date of the decision, April 29, 2005, upon which the said Order was made. Using either date as the date of accrual, this action was timely commenced within three years of accrual, because it was commenced on April 16, 2008. See McCoy v. Feinman, supra .

Even assuming, arguendo, that the legal malpractice claim accrued prior to April 16, 2005, the continuous representation doctrine would toll the statute of limitations until the attorney-client relationship ended. Segan has not shown that their representation was unequivocally ended prior to April 16, 2005.

Leon Segan never sought leave of court to withdraw as counsel, as required by CLR 321 and 22 NYCRR 604.1(6). Rather, Segan remained the attorney of record until after Justice Silver rendered his decision on April 29, 2005. Segan continued to make appearances in the STP Part of this court on plaintiffs' behalf, including appearing for oral argument on Dr. Goldstein's motion to dismiss, on March 11, 2005, and April 8, 2005.

The Segan firm represented plaintiffs for seven years when Leon Segan sent his clients the letter dated the August 25, 2004. Lisa Riley states that, at that time: "it was [her] understanding that my medical malpractice action against Dr. Goldstein was active and that the defendants were doing everything possible to represent [her] best interests." Lisa Riley also indicates that she relied upon and trusted Segan to legally represent her, and she cooperated with them at every juncture. [FN7]

It is also noted that, from the Bill of Particulars served by the Segan firm in the underlying Malpractice action against Dr. Goldstein, that Lisa Riley had suffered severe depression including a "suicide attempt", requiring psychiatric attention, caused by the deformities and scarring resulting from the alleged botched breast-reduction surgery.[FN8] Especially under such circumstances, Segan should have unambiguously orally communicated with the Plaintiffs, preferably in-person, (and certainly not merely by crafted letters), if they intended to end this long-term relationship of trust and confidence, which began when Lisa Riley was an infant.

"An attorney "does not have an unfettered right to unilaterally withdraw" as counsel, and "[good cause is required, to be determined, ultimately, by the Court" upon motion by said counsel.[citations omitted]." Frenchman v. Queller, Fisher, [*8]Danced, Saurianness, Washer & Pool, LP, 24 Misc 3d 486 (NY Sup. Ct. 2009).

Accordingly, Defendants' motion is denied. This constitutes the decision and order of this Court.

Dated: December 14, 2009

George D. Salerno, JCS Footnotes

Footnote 1: Lisa Riley's date of birth is xx/xx/1978, according to the Bill of Particulars in the underlying matter. (See Bill of Particulars, dated August 10, 2001, ¶ 14, at Plaintiffs' Opposition, Exhibit "4").

Footnote 2: The Complaint does not allege a cause of action for medical malpractice against Dr. Goldstein.

Footnote 3: (See Note of Issue and accompanying Affidavit by Counsel Nemerov from Segan's firm, dated Aug. 13, 2001, Plaintiffs' Exhibit "4" ).

Footnote 4: (See Affirmation by Dr. Goldstein's Counsel, Maureen Lavin, in

support of his motion to Dismiss, dated February 2, 2005, at Plaintiffs' Exhibit "6").

Footnote 5: CPLR 3404 provides that: "a case in the supreme court ... marked off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order."

Footnote 6: (See copy of the Summons and Complaint in this action, on the Bronx County Clerk's website, which indicates that the Summons and Complaint were filed on April 16, 2008).

Footnote 7: (See Lisa Riley's July 9, 2008 sworn Affidavit, p. 1).

Footnote 8: (See Bill of Particulars, dated August 10, 2001, ¶ 10, at Plaintiffs' Opposition, Exhibit "4").