Mason v Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler P.C.
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Mason v Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler P.C. 2011 NY Slip Op 33465(U) December 12, 2011 Sup Ct, NY County Docket Number: 105881/11 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY $8 PART PRESENT : DONNA M. MILLS Justice GLORIA MASON, INDEX NO. j0$881/11 MOTION DATE Plaintiff, -V- MOTION SEQ.NO. 001 BRECHER, FISHMAN, PASTEKNACK, WALSH TILKER, & ZIEGLER P.C., et al., Defendants. The following papers, numbered 1 to MOTION No. CAL were read on this motion for . PAPERS NUMBERED Notice of MotiodOrder to Show Cause-Afidavits- Exhibits.... Replying Affidavits YES && & 3 Answering Affidavits- Exhibits CROS S-MOTION: - ,/ FILED NO Upon the foregoing papers, it is ordered that this motion is: . . DECIDED l ACCORDANCE WITH ATTACHED MEMORANDUM DECISIQkjv YOQK N COUNTY CLERK'S OFFICE Check one: FINAL DISPOSITION NON-FINAL DISPOSITION ... [* 2] - against - Plaintiff, BRECHER, FISHMAN, PASTERNACK, WALSH, TILKER & ZIEGLER P.C., BRECHER, FISHMAN, PASTERNACK, POPISH, HELLER, REIF & WALSH, P.C., BRECHER, FISHMAN, PASTERNACK, HELLER, REIF, WALSH & TILKER, P.C., AND BRECHER, FISHMAN, PASTERNACK HELLER, WALSH & TILKER, P.C., Defendants. FILED DE6 20 2011 NEW YORK COUNTY CLERKS OFFICE DECISIONIORDER __c _______II__________c_______III______------------------.---- I DONNA M. MILLS, J: In this action Defendant, Brecher, Fishman Pasternack, Walsh, Tilker & Ziegler, P.C. ( Brecher Fishman or Defendant ) moves for a motion for a judgment dismissing the Complaint of the Plaintiff, Gloria Mason ( Plaintiff ), pursuant to CPLR @Is 321 I I) (a)( and 321 I (a)(7). Plaintiff opposes the motion on the grounds that the documentary evidence set forth by Brecher Fishman is insufficient to refute plaintiffs claim, and plaintiff maintains that she has set forth sufficient factual allegations to state a viable cause of action in legal maI practice. BACKGROUND On November 2, 2005, plaintiff while employed by the Department of Health and Mental Hygiene as a Clerical Aide at the premises located at 152 Lexington Avenue, New York, New York, was allegedly injured when she tripped and fell over construction debris and/or wires on the 2 dfloor sustaining personal injuries. Due to her injuries, plaintiff subsequently sought representation for her Worker s Compensation case with Brecher Fishman. She signed a Retainer and Letter of Engagement with Defendant dated November 21 , 2005. The Letter of Engagementsigned by plaintiff directed her to bring any [* 3] and all inquiries as to the potential for bringing a personal injury action to the attorneys and/or personnel at Brecher Fishman, since they also handled these types of claims. Over the course of Brecher Fishman s representation, plaintiff contends that she made several requests for assistance and consultation from the attorneys and personnel at Brecher Fishman and/or referral to another attorney with respect to a potential third party claim against the construction company she believed responsible for her injuries. Plaintiff further contends that she was never given a consultation nor was she ever directed to seek outside counsel. Finally, plaintiff argues that as a result of Brecher Fishman s failure to advise and/or properly advise her, the statute of limitations on her personal injury action tolled, precluding plaintiff from recovery. Plaintiff now seeks to recover for attorney malpractice committed by Defendant. LEGAL DISCUSSION To sustain a cause of action alleging legal malpractice, a plaintiff must show that the defendant 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 this professional duty caused the plaintiffs actual damages (McCov v Feinman, 99 NY2d 295, 301-302 [2ndDept 20021. To succeed on a motion to dismiss a complaint pursuant to CPLR 321 1 (a) (I), the documentary evidence relied upon by the defendant must conclusively establish a defense to the asserted claims as a matter of law (Leon v Martinez, 84 NY2d 83, 88 [1994]). When determining a motion to dismiss a complaint pursuant to CPLR 321 1 (a) (7), the standard is whether the pleading states a cause of action, and the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010], quoting Nonnon v Citv of New York, 9 NY3d 825, 827 [2007], quoting L e v v Martinez, 84 NY2d at 87-88). [* 4] Here, the complaint alleged, inter alia, that but for the defendant s failure to provide her with a consultation or referral to outside counsel she would have been able to commence a personal injury action. It is undisputed that Brecher Fishman represented plaintiff in her Worker s Compensation case, however, language in the RetainerAgreement also made clear that defendant not only provided Workers Compensation representation, but also provided their clients consultation and representation for personal injury actions. The Letter of Engagement provides in relevant part: Our firm does handle Personal Injury and Social Security Disability and Municipal Disability Pension claims, which may be related to the Workers Compensation claim. You may be entitled to bring a personal injury action if your injury was due to the negligence of someone other than your employer or coworkers. . . Our firm provides free consultations for these types of potential claims. Please contact us if you would like a consultation from our firm on either a Personal Injury, Social Security Disability, or Disability Pension claim. Plaintiff maintains that she asked on several occasions if the defendant would bring a personal injury claim on her behalf, and was told that either she did not have a meritorious personal injury claim, or that they were only representing her with Workers Compensation. Defendant contends that the documentary evidence is clear that they were not responsible for bringing a personal injury claim on behalf of plaintiff, and the failure to bring a personal injury claim against a third-party were entirely because of the actions of plaintiff. This Court finds that the documentary evidence submitted by the Defendant does not conclusively dispose of the plaintiffs claim against them, as questions remain about the consultation that plaintiff requested, and the basis of defendant s determination that plaintiff did not have a viable personal injury claim against a third-party. Moreover, the [* 5] papers submitted by the defendant does not conclusively refute the material facts alleged in the complaint relating to claims of legal malpractice against them, nor does the documentary evidence conclusively establish that the plaintiff lacks a viable claim of legal malpractice (see CPLR 321 1 [a] [I]). As such the, the factual allegations set forth in the Complaint, when viewed in the light most favorable to plaintiff establish each and every element of a cause of action sounding lin legal malpractice. Accordingly it is ORDERED that defendant's motion to dismiss the complaint is denied; and it is further ORDERED that defendant is directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to appear for a preliminary conference in Room 574, 111 Centre street, on dldrl , 2012, at /o /SAM. FILED Dated: DEC 2 0 2011 = ENTER: J.S.C. NEW YORK C UNTY CLERKS OFFICE
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