Singh v Trief & Olk

[*1] Singh v Trief & Olk 2009 NY Slip Op 52706(U) [26 Misc 3d 1211(A)] Decided on November 24, 2009 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2009
Supreme Court, Kings County

Mervyn Singh, Plaintiff,

against

Trief & Olk and Joseph D. Monaco, III, Defendants.



2081/02



Plaintiff:

Andrew Lavott Bluestone, Esq.

233 Broadway - 51st Floor

New York, NY 10279

Defendant-Defendants & Third-Party Plaintiffs:

R. Evon Idahosa-Howard, Esq.

Furman Kornfeld & Brennan LLP

545 Fifth Avenue - Suite 401

New York, NY 10017

Third-Party Defendant: Christopher B. Hitchcock, esq.

Hitchkock & Cummings LLP

757 Third Avenue

New York, NY 10017

Bruce M. Balter, J.

Third-party defendant Oshman & Helfenstein, Mirisola & Schwartz, L.L.P., (Oshman) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims asserted by defendants and third-party plaintiffs Trief & Olk and Joseph D. Monaco, III (Trief & Monaco). Trief & Monaco move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint. Plaintiff Mervyn Singh cross-moves for an order, pursuant to CPLR 3212, granting him partial summary judgment against Trief & Monaco.

The complaint alleges that on August 4, 1994, plaintiff, a construction worker hired to install sheetrock at Public School 156, 1150 East New York Avenue in Brooklyn, was injured as a result of his fall into an unprotected elevator shaft. Plaintiff then retained the services of law firm Trief & Olk, through one of its members, defendant Joseph D. Monaco, III, to litigate his personal injury claims. Shortly thereafter, Trief & Olk commenced the action titled Singh v New York City Board of Education et al., (Kings County Supreme Court Index No.: 6385/96). This action (the "Underlying Action") sought damages for plaintiff's injuries, which were allegedly caused by the negligence of the various defendants.

The Underlying Action was subsequently transferred to Civil Court, Kings County pursuant to CPLR 325 (d). In response to a motion and cross motion, and by order dated April 7, 1999 (Dolores L. Waltrous, J.), the Civil Court directed that the parties to the Underlying Action were precluded from raising the issue of plaintiff's psychiatric condition or injuries at the time of trial. Trief & Olk apparently consented to the terms of this order. Plaintiff maintains that Trief & Olk did not inform him of (and, presumably, was not authorized to enter into) this stipulation concerning his psychiatric condition or injuries. Indeed, plaintiff characterizes the action of Trief & Olk as "withdrawing" his psychiatric injury claims.

In late 1999, Trief & Olk received a videotape produced by the defendants in the Underlying Action. The subject videotape contained images of plaintiff changing a tire on a car after the subject elevator shaft accident. Members of Trief & Olk then concluded that plaintiff was fraudulently exaggerating the nature of his alleged injuries. As a result, Trief & Olk terminated its representation of plaintiff.

On or about January 3, 2000, plaintiff retained the services of Oshman to continue the prosecution of the Underlying Action. Subsequently, Trief & Olk transmitted the file maintained in connection with plaintiff's case to Oshman. A copy of the afore-mentioned consent order that precluded the issue of plaintiff's psychiatric damages at trial was allegedly omitted from the subject file.

On or around November 13, 2001, the Underlying Action was in the jury selection phase. During jury selection, the defendants in the Underlying Action informed members of Oshman that, by the afore-mentioned consent order of the Civil Court, plaintiff was precluded from introducing evidence of his psychiatric condition or injuries at trial. Oshman member Theodore Oshman, by letter dated November 13, 2001, requested a copy of the subject order from Trief & [*2]Olk. Shortly thereafter, the Underlying Action was settled on record in the Civil Court. The settlement expressly exempted any claim for psychological injury.

Plaintiff then commenced the instant malpractice action against Trief & Olk. Noting the alleged malpractice by Trief & Olk, plaintiff also directed Oshman to withhold any portion of the fee purportedly due Trief & Olf for its services rendered in connection with the Underlying Action. Oshman has thus far complied with plaintiff's request. Consequently, Trief & Olk commenced the instant third-party action against Oshman in Supreme Court, New York County to recover fees allegedly due.

Thereafter, Oshman moved for an order joining the third-party action with the instant action. Trief & Olk responded by cross-movint for summary judgment on the issue of liability. Oshman then cross-moved for sanctions against Trief & Olk and its attorneys for commencing a frivolous action.

By order dated March 6, 2003, the Supreme Court, New York County (Rosalyn Richter, J.), transferred the instant third-party action to the Supreme Court, Kings County, and directed that it be tried with the instant action. Plaintiff filed a note of issue on September 16, 2008, certifying that the action is ready for trial. The parties now seek summary judgment.

In support of its motion for summary judgment dismissing the third-party claims, Oshman first notes that plaintiff retained Oshman more than nine months after Trief & Monaco stipulated to preclude the issue of plaintiff's psychiatric damages during trial of the Underlying action. Oshman argues that its acts or omissions thus did not cause any damage to Trief & Monaco. Indeed, Oshman asserts that the third-party claims asserted by Trief & Monaco contradict their main affirmative defense: that the stipulation in the Underlying Action to preclude plaintiff's psychiatric injury claims actually benefitted plaintiff because pursuing damages for psychiatric injury would have revealed facts that would have damaged plaintiff's credibility.

Specifically, Oshman notes that Trief & Monaco mainly argue that Oshman could have either taken an appeal or moved to vacate the subject order. Oshman argues that, to the contrary, a party that stipulates to a provision of an order is not considered an aggrieved party, and thus may not appeal the subject provision. Here, notes Oshman, plaintiff (through the actions of his then-attorneys Trief & Olk) consented to preclusion of his psychiatric injury claims in the Underlying Action as provided by . Thus, concludes Oshman, plaintiff would not have a viable appeal of the subject order, and Oshman's subsequent failure to take an appeal form the order therefore does not constitute malpractice.

Likewise, Oshman claims that there were no grounds for plaintiff to move to vacate the subject order. Oshman notes that CPLR 5015 specifies only a few grounds for a motion to vacate an order, namely: excusable default, misconduct, new evidence, lack of jurisdiction, or the modification of an underlying order. Oshman contends that none of these grounds were present in the Underlying Action; therefore, it was not malpractice for Oshman to fail to move to vacate the subject order.

Oshman reiterates that plaintiff did not hire it to represent him in the Underlying Action until December, 1999—approximately eight months after the subject order was issued on April 7, 1999. Oshman further reiterates that when it undertook representation of plaintiff in the Underlying Action, it had no viable recourse to relief from Trief & Olk's stipulation precluding [*3]plaintiff's psychiatric injury claims. For these reasons, Oshman asserts that it did not contribute to or exacerbate any of the claimed malpractice damages, and its motion for summary judgment dismissing the third-party claims should thus be granted.

In support of their motion for summary judgment dismissing the complaint, and in opposition to Oshman's motion, Trief & Monaco first asserts that it is subject to the "attorney judgment rule"—simply put, the doctrine that the choice by an attorney or law firm of one of several reasonable litigation tactics does not constitute malpractice. Trief & Monaco assert that a plaintiff seeking damages for legal malpractice must establish, in contrast, that the unreasonable actions of an attorney or law firm proximately caused the alleged damages. Trief & Monaco asserts that here, the decision to stipulate to preclusion of plaintiff's psychiatric damage claims in the Underlying Action was reasonable.

Specifically, Trief & Monaco claim that plaintiff's medical records and litigation history demonstrate that plaintiff suffered from psychiatric disorders well before he suffered the underlying accident, and therefore, the subject accident did not contribute to any psychiatric injury. Moreover, Trief & Monaco note that these records also indicate that plaintiff had physically abused a woman whom he was romantically involved with. Trief & Monaco argue that delving into the facts surrounding the alleged psychiatric injuries would have diminished plaintiff's credibility had the Underlying Action proceeded to trial; the stipulation precluding the alleged psychiatric injury claims was thus reasonable strategy and not legal malpractice.

Trief & Monaco further suggest that plaintiff cannot establish that the alleged malpractice proximately caused any damages. Trief & Monaco note that the Underlying Action was settled in open court during jury selection for an amount exceeding $900,000.00.[FN1] Trief & Monaco claim that this was a favorable settlement and reiterate that an attempt to pursue psychiatric injury claims would have damaged plaintiff's credibility and reduced a settlement award. Trief & Monaco assert that plaintiff's contention to the contrary is speculative, and, therefore, plaintiff cannot demonstrate that the alleged malpractice proximately caused any damages.

Alternatively, Trief & Monaco claim that plaintiff cannot demonstrate the requisite causation because Oshman had the last opportunity to remedy the alleged malpractice. Trief & Monaco assert that Oshman knew of the alleged psychiatric claims within a year of undertaking representation of plaintiff in the Underlying Action. Trief & Monaco further assert that Oshman continued to represent plaintiff in the Underlying Action until it was settled approximately two years thereafter. Trief & Monaco claim that Oshman knew of the subject order yet did not attempt to relieve plaintiff from the provisions thereof. For these reasons, Trief & Monaco argue that it was in fact Oshman's malpractice that proximately caused plaintiff's alleged loss. Additionally, Trief & Monaco contend that, contrary to Oshman's assertions, Oshman could and should have either moved to vacate the subject order or taken an appeal from it.

Trief & Monaco further assert that the pleaded breach of contract claim must be dismissed. Trief & Monaco argue that, generally, a breach of contract claim that is premised on [*4]alleged attorney malpractice should be dismisses as redundant. Trief & Monaco contend that such a breach of contract claim can be sustained only if the plaintiff can show an agreement beyond that of the attorney-client relationship. Here, state Trief & Monaco, no such separate agreement exists, and plaintiff's breach of contract claim should be dismissed as duplicative of the malpractice claim.

Trief & Monaco also argue that Oshman's motion for summary judgment should be denied. Initially, Trief & Monaco claims that Oshman cannot demonstrate that it did not contribute to the plaintiff's alleged damages. Trief & Monaco reiterate that Oshman represented plaintiff for two years—including at least one year after Oshman knew of the subject order precluding plaintiff's psychiatric claims—but did nothing to salvage them. Trief & Monaco assert that when a successor law firm, such as Oshman, has a sufficient opportunity to cure the alleged malpractice of the outgoing law firm (here, Trief & Olk) but fails to do so, the negligence of the successor firm is the proximate cause of the alleged loss. Lastly, for the above reasons, Trief & Monaco argue that they have a sustainable claim for common-law indemnity and contribution against Oshman. For these reasons, Trief & Monaco conclude that Oshman's cross motion should be denied.

In opposition to the motion of Trief & Monaco, and in support of his own motion for partial summary judgment, plaintiff asserts that his medical records establish that he suffered psychiatric injury as a consequence of the underlying accident. However, claims plaintiff, Trief & Olk and Joseph Monaco failed to assert and preserve such a claim in the underlying action, and did so without plaintiff's consent.

Plaintiff claims that the affirmative defenses asserted by Trief & Monaco lack merit. Although plaintiff notes that Trief & Monaco claims that they exercised reasonable judgment in foregoing the plaintiff's alleged psychiatric injuries, plaintiff characterizes the actions of Trief & Monaco as their selfish desire to save the time associated with a psychiatric damages claim. Plaintiff's affidavit avers that he was hospitalized for psychiatric injury after the subject accident. Plaintiff's affidavit further avers that defendants represented to him that they would attempt to recover damages attributable to the psychiatric claims, but failed to do so. Lastly, plaintiff's affidavit indicates that he learned after the date of the subject order that the provision precluding psychiatric claims was a result of an off-the-record agreement with opposing counsel in the underlying action. Plaintiff concludes that since Trief & Monaco essentially withdrew his psychiatric claims, which were supported by medical evidence of psychiatric hospitalization after the subject accident, plaintiff has established prima facie that Trief & Monaco are liable for legal malpractice. Accordingly, claims plaintiff, his motion for partial summary judgment should be granted.

The court denies all three motions for summary judgment. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth [*5]Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). For the movant to prevail, it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118 [1950]) If the existence of an issue of fact is even arguable, summary judgment must be denied (Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572 [1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]; see also Akseizer v Kramer, 265 AD2d 356 [1999]). Indeed, the trial court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Henderson v City of New York, 178 AD2d 129, 130 [1991]; see also Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [1976]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]). The movant has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of their claim or defense, rather than by pointing to gaps in the opponents' proof (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410 [2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475 [2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]).

Here, no party has met its initial summary judgment burden in a legal malpractice context. In order to make a prima facie showing on a motion for summary judgment, defendants Trief & Olk and Joseph Monaco must present admissible evidence that the plaintiff cannot prove that the law firm and attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (Olaiya v Golden, 45 AD3d 823, 824 [2007]). Here, defendants admit that they decided to forgo plaintiff's psychiatric damages claims without plaintiff's consent. Defendants offer no authority that such a waiver without consent is not a breach of an attorney's duty of care; indeed, a fact-finder, relying on ordinary experience, may consider the waiver of plaintiff's psychiatric claims a breach of the professional duty (see e.g. Northrop v Thorsen, 46 AD3d 780, 782 [2007], citing Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Moreover, given that the subject Workers' Compensation Law carrier asserted a lien based, in part, on awards given to compensate plaintiff for psychiatric injuries, defendants have not demonstrated, prima facie, that such claims were either patently false or non-ascertainable. For these reasons, defendants Trief & Olk and Joseph D. Monaco, III have not demonstrated prima facie entitlement to judgment as a matter of law.

However, defendants correctly note that plaintiff's breach of contract claim lacks merit and must be dismissed. Generally, a breach of contract claim premised on an attorney's alleged failure to exercise due care or to abide by general professional standards is duplicative of the malpractice claim (see e.g. Senise v Mackasek, 227 AD2d 184, 185 [1996]). An exception exists when an attorney breaches an express promise to achieve a specific result. Here, the subject retainer agreement [FN2] does not contain an express promise to achieve a specific result; the breach of contract cause of action must therefore be dismissed (see e.g. Wright v Meyers & Spencer, LLP, 46 AD3d 805 [2007]; Pellegrino v File, 291 AD2d 60, 64 [2002]; Estate of Nevelson v Carro, [*6]Spanbock, Kaster & Cuiffo, 290 AD2d 399 [2002]; Mecca v Shang, 258 AD2d 569, 570 [1999], lv dismissed 95 NY2d 791 [2000]).Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1998]).

Likewise, Oshman has not demonstrated prima facie entitlement to judgment as a matter of law. The court initially notes that the subject order [FN3] does not indicate the consent of the parties; therefore, there is no merit to Oshman's contention that it was necessarily unappealable (cf. Charles v Lewis, 224 AD2d 687 [1996]). Moreover, there is authority supporting the proposition that Oshman could have amended the pleadings to include plaintiff's psychiatric claims (see e.g. Andre-Long v Verizon Corp., 31 AD3d 353 [2006]). Lastly, Oshman, as successor counsel to Trief & Monaco, is subject to liability for failing to cure the prior preclusion of plaintiff's psychiatric claims (see e.g. Perks v Lauto & Garabedian, 306 AD2d 261 [2003]). For these reasons, the motion of third-party defendant Oshman & Helfenstein, Mirisola & Schwartz, L.L.P. is denied.

Lastly, the cross motion of plaintiff is denied. As noted by Trief & Monaco, prosecution of plaintiff's psychiatric damages claim would arguably allowed the defense in the underlying action to examine the plaintiff about his psychiatric injuries, which would, in turn, arguably have allowed the defense to examine plaintiff about his prior arrests, convictions and violent acts. More specifically, delving into the issue of plaintiff's psychiatric condition may have resulted in damage to plaintiff's credibility. In short, plaintiff has not demonstrated the absence of issues of fact as to whether he would have recovered an award for psychiatric injuries "but for" the alleged malpractice (see e.g. Metrokane Imports, Ltd. v. Kane, Dalsimer, Kane, Sullivan and Kurucz, 150 AD2d 153, 155 [1989] [trial court should not implicitly find either legal malpractice or liability therefrom in response to plaintiff motion for partial summary judgment]). For these reasons, the motion for partial summary judgment by plaintiff Mervyn Singh is denied.

In sum, the motion of third-party defendant Oshman & Helfenstein, Mirisola & Schwartz, L.L.P., is denied. The motion of defendants and third-party plaintiffs Trief & Olk and Joseph D. Monaco, III is granted to the extent that plaintiff's cause of action alleging a breach of contract is dismissed, and is otherwise denied. The cross motion of plaintiff Mervyn Singh is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Plaintiff received the lump sum of $650,000.00 and a waiver of a Workers' Compensation carrier's lien in the amount of $308,342.32.

Footnote 2: A copy of which is Exhibit A to defendants' Notice of Motion.

Footnote 3: A copy of which is Exhibit D to defendants' Notice of Motion.