Santana v Graubard

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Santana v Graubard 2011 NY Slip Op 34107(U) August 10, 2011 Sup Ct, Bronx County Docket Number: 4936/10 Judge: Mary Ann Brigantti-Hughes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED AuJ:l~ 2011 Bronx County Clerk ;/ ' '/ t I SU PREM ' OURT ST A TE OF NEW YORK OF BRONX TRIAL TERM - PART 15 PRESENT: Honorable Mary Ann Brigantti-Hughes -----------------------------------------------------------------------)( DINORAH SANTANA Plaintifl; DECISION I ORDER Index No. 4936/10 -againstPETER L. GRAUBARD, ESQ. and GRAUBARD & ASSOCIATES. P.C.. Defendants. -----------------------------------------------------------------------)( The following papers numbered 1 to read on the below motions noticed on February 7, 2011 and duly submitted on the Part IA 15 Motion calendar of Papers Sub1nittcd Numbered Dt:fS. Notice ofl\t1otion, Exhibils, Me1no oflavv Pl. 's Affirmation in Opposition and suppolt of Cross-Motion, Exhibits Pl. 's Affirmation, Memo in Reply Def.'s Affirmation, Memo in Reply. 1,2 3,4 5,6 7.8 In an action for damages arising out of alleged legal malpractice, defendants Peter Graubard ("Graubard") and Graubard & Associates (collectively referred to as '"Defendants") move to dismiss the complaint of the plaintiff Dinorah Santana ("Plaintiff') pursuant to CPLR 32 l 1. alleging that her claiL.s arc time-barred. Plaintiff cross-moves for summary judgment pursuant to CPLR 3212. L Factual History On or around May 19, 1999, Plaintiff retained defendant Graubard to represent her in a medical malpractice action against St. Luke's Roosevelt Hospital and Calvin Thomas, M.D. The action was commenced in 2001, and Mr. Graubard handled the matter through discovery phases and prepared the matter for trial. In November 2006, Mr. Graubard contacted Keith De Vries, Esq., and asked if he was interested in being retained'as trial counsel for the matter. After reviewing the file. Mr. De Vries agreed, and the entire file v 1s transferred to his office. Thereafter, Mr. Graubard arranged a [* 2] FILEp Aug 12 2011 Bronx County Clerk meeting between Plaintiff and Mr. De Vries to discuss the future handling of the matter. Plaintiff allegedly agreed to have Mr. De Vries act as her trial counsel. In .July 2007, Mr. Graubard received correspondence from defense counsel in the matter, and sent a letter to Mr. De Vries, asking for a "consent to change attorney" as he no longer had the file and was "no longer involved'' in what was happening. On July 17, 2007, Mr. Graubard, Mr. De Vries, and Plaintiff all executed a document entitled "Consent to Retain Trial Counsel" which stated that Mr. De Vries would act as "trial attorney ofrecord ... in place and stead" of Mr. Graubard. Mr. De Vries continued to correspond with Mr. Graubard about the matter from 2007 through 2009. In June 2008. following a conference with the court, it was determined that one of the defendant health centers was a federal facility, and Calvin Thomas, M.D. was therefore a federal employee_ Under those circumstances_ it was necessary for PlaintifTto file a claim within two years under the Federal Tort Claim i\ct which had not been done. Mr. De Vries notified Mr. Graubard of this fact and advised him to contact his professional liability carrier. In 2009, the matter was officially removed to the Southern District Court, where it was later dismissed for failure to comply with the F~deral To11 Claim act on or about February 2009_ Plaintiff commenced the instant legal malpractice action against Defendants by filing a verified complaint on October 20, 2010. Defendants now argue that the complaint is time-barred pursuant CP lR 214(6). as the claim accrued when Mr. Graubard "was substituted" as counsel in July 2007, and the complaint was filed more than three years following accrual_ Accordingly, they argue dismissal is warranted under CPLR 321 l(a)(5)_ Plaintiff cross-moves for an order pursuant to CPLR 3212. (I) declaring that Mr. Graubard was never substituted as counsel for Plaintiff, and (2) the cause of action is timely under the continuous representation doctrine. lL Standard of Review In ddermining a motion to dismiss_ the Court's role is ordinarily limited to determining whether the complaint states a cause of action_ Frank v_ DaimlerChrysler Cmp., 292 A.D.2d 118 ( l '' Dept 2002). In other words, the determination is not whether the party has artfully drafted the pleading. but whether deeming the pleading to allege whatever can be reasonably implied 2 [* 3] FILED Aug 12 2011 Bronx County Clerk from its statements, a cause of action can be sustained. See Stendig, Inc. v. Thom Rock Realty ( ·o .. 163 A.D.2d 46 ( 1" Dept. 1990); Leviton Manuf(1cturing Co .. Inc. v. Blumberg, 242 A.D.2d 205 ( l ' 1 Dept. l 997)(on a motion for dismissal for failure to state a caLtSe of action, the court must accept factual allegati ¢ms as true). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally rnnstrued (see. CPLR §3026). 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 into any cognizable legal theory". Leon v. Murlinez. 84 N.Y.2d 83. 87-88 (1994). The motion should be denied if~ from the pkading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law. McGill v. Parker, 179 A.D.2d 98 (I" Dept. 1992). Factual allegations normally presumed to be true on a motion pursuant to CPLR 3211 (a)(7) may properly be negated by affidavits and documentary evidence. Wilhemlina Models, Inc. v. Fleisher. 19 A.D.3d 267 ( l ' 1 Dept. 2005). Evidentiary material may be considered on a motion to dismiss for failure to state a cause of action to remedy defects in a complaint. Beyer v Daimler( 'hrvsler Corp.. 286 A.D.2d I 03 (2"d Dept. 200 I). On a motion to dismiss for failure to state a cause of action, any deficiency on the part of the complaint because of detailed pleadings of the lac ts and circumstances relied upon may be cured by details supplied in the affidavits submitted by plaintiff, resort to which is proper for the limited purpose of sustaining a pleading against a motion under CPLR 321 l(a)(7). Ackerman v. Vertical Club Corp., 94 A.D.2d 665 (1" Dept. 1983 ). l!1 Anal vs is Any action for legal malpractice must be commenced within three years of accrual of the cause of action. CPJ,R 214(6). As stated by Defendants, "a plaintifl's cause of action for legal malpractice. along with any damages alleged, accrues at the time the malpractice occurs and the injury party can obtain relief in court. .. " Creditanstalt Investment Bank AG et ul v. Chandhourne & Park LLP. 14 A.D.3d 414 (I'' Dept. 2005)(internal citations omitted). In other words, a legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain redress. Mc( 'oy v. Feinman, 99 N. Y.2d 295 (2002). However, the 3 [* 4] FILED Aug 12 2011 Bronx County Clerk continuous representation doctrine tolls the statute of limitations where the attorney who allegedly was responsible for the malpractice continues to represent the client on the matter which is the subject of the malpractice action. G!amm v. Allen, 57 N.Y.2d 87 ( 1982). The doctrine applies where there is evidence of an ongoing, continuous, developing, and dependent relationship between the plaintiff and the law firm. See Marro v. Handwerker, Marchelas & Gayner, 1A.D.3d488 (2"d Dept. 2003), citing Piliero v. Adler & Stavros, 282 A.D.2d 511 (2"d Dept. 2001 ). Thus, the statute of limitations on a claim for malpractice in the conduct of litigation begins to run when the attorney-client relationship terminates. Greene v. Greene, 56 N.Y.2d 86 (1982). Whether the attorney-client relationship has terminated depends on the facts and circumstances. Courts have held that the attorney-client relationship has terminated where the client has retained new counsel and advised former counsel via letter to take no further action, rather than nine months later when a formal stipulation substituting counsel was filed. Piliero v. Stavros, 282 J\.D.2d 511 (2"d Dept. 2001 ); Where an attorney serves as trial counsel. his responsibilities continue (and thus the continuous representation doctrine applies) until the action terminates in a final judgment. Hirsch v. Weisman, 189 A.D.2d 643 (l" Dept. 1993); An attorney-client relationship was deemed terminated. thus commencing the statute of limitations on a legal malpractice claim, from the date plaintiff-client executed a consent to change attorney. Sommers v. Cohen, 14 A.D.3d 691 (2"d Dept. 2005). Jn this case, Defendants argue that the attorney-client relationship terminated on July 17, 2007. when Plaintiff executed a document that Defendants characterize as a "Consent to Change Counsel". Plaintiffs argue that this document was actually a consent to retain trial counsel. and did not effectively sever the attorney-client relationship. Thus, the continuous representation doctrine applies and they argue the action is timely. In support of their motion. Defendants attach the "consent to change attorney" document. While the cover sheet is la he led ''consent to change attorney", the stipulation itself is labeled ·'consent to retain trial attorney". The stipulation states that Plaintiff consents to have Mr. DeVrics ·'be retained as trial attorney ofrecord .. .in place and stead of the undersigned attorney " The amhiguous nature of this agreement allows this Court to consider parol evidence to 4 [* 5] FILED Aug 12 2011 Bronx County Clerk determine the intent of the parties. See e.g Schmitz v. lvfacDonald, 250 A. D. 2d 533 (l" Dept. 1998). The affidavit of Mr. Graubard states that in 2006 "Plaintiff retained a new attorney ... " to handle her lawsuit. Accordingly. Mr. Graubard transferred his entire file to Mr. De Vries. However_ the affidavit of Mr. Devries. submitted by Plaintiff. states that Mr. Graubard, not Plaintiff. initiated contact with him in 2006 and inquired whether he'd like to be retained as trial counsel in the underlying medical malpractice action. Mr. Graubard thereatler transferred the lile. Mr. Graubard then arranged a meeting between Plaintiff and Mr. De Vries, during which he emphasized that his role was limited to trial counsel, and Mr. Graubard remained the attorney of record. The affidavit of Plaintiff hersel r states that she was told that Mr. De Vries would work with Ciraubard to prosecute ner case. Plaintiff was never informed that her relationship with Mr. Graubard was ending. After executing the stipulation. Mr. De Vires represented himself as "trial counsel to the law offices of' Peter Graubard. Esq." in a Hold Harmless Agreement entered into in December 2007. The update letters sent to Mr. Graubard indicate that Mr. De Vries and Mr. Graubard discussed the matter regularly even after the stipulation was signed. Overall, the Court linds that the substance of the "consent to retain trial counsel" document coupled with the circumstances surrounding its execution fail to satisfy the requirements of CF LR 321 (b )(I) and therefore did not effectively constitute a substitution of attorney. Mr. Graubard never formally withdrew as counsel to Plaintiff under CPLR 321 (b)(2) or sent any correspondence to Plaintiff confirming his discharge from the case. The single fax sent July 16. 2007. wherein Mr. Graubard inquired as to why he continued to receive correspondence on the matter. is not conclusory documentary evidence that the attorney-client relationship was severed. While this Court finds that Mr. Graubard was never properly substituted as attorney of record for Plaintiff, l decline to rule as a matter of law that the action is timely under the continuous representation doctrine. There are issues of fact as to whether there was an ongoing. continuous. developing. and dependent relationship between Plaintiff and Defendants. This issue needs to be fleshed out throLtgh discovery and further investigation. When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson. 8 N.Y.2d 8 (1960). 5 [* 6] FILED Aug 12 2011 Bronx County Clerk lY. Conclusion Accordingly, it is hereby ORDERED, that defendants Peter L. Graubard, Esq. and Graubard & Associates, P.C. 's motion to dismiss pursuant to C'PJ,R 3211 is hereby DENIED, and it is further, ORDERED, that the plaintiff Dinorah Santana's cross-motion for summary judgment pursuant to CPLR 3212 is DENIED. o,<ed :::::,:;::',':'" me Dtti"'"" '"' om~ or tlri' ~ Hon. Mary Ann Brigantti-Hughes, J.S.C. 6

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