Shutzman v Garr

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Shutzman v Garr 2012 NY Slip Op 31541(U) May 18, 2012 Sup Ct, New York County Docket Number: 111697/2009 Judge: Lucy Billings 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. SCANNED ON 611212012 [* 1] SUPREME COURT OF TFE STATE OF NEW YBRK - NEW YORK COUNTY LUCY bkLihtA PRESENT: J.S.d, PART ' t k Justice Index Number : 11I66712009 INDEX NO. SHUTZMAN, JACK MOTION DATE vs. IRA GARR /I MOTION SEQ. NO. MOTION CAL. NO. SEQUENCE NUMBER : 002 - DISMISS In thls motion tolfor I' ' 1 3 APERS NUMBERED Answering Affldavlts - Exhlblta Replylng Affidavits Cross-Motion: Yes t No UNFILED JUDGMENT This judgment has not been entered by the County Cferk and notice of entry cannot be served based hereon. -. Jbtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1418). .; .r Check one: @ FINAL DISPOSITION 0 NON-FINAL DISfVhITION Check if appropriate: 0 DO NOT POST 0 REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 4 6 -X _ _ _ _ _ - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ JACK SHUTZMAN, Index No. 111697/2009 Plaintiff - against - DECISION AND ORDER IRA GARR PC, IRA GARR, and JUDITH WHITE, 1 ' h l_. l ,' I B , I ._ '@C.P,oJT ~ - I B : ) l f . lutlymrnt-tias not been entered by the County C1tI :rnci notice of entry cannot be served based hereon. Defendants tibiain entry, counsel or authorized representative must _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _in person at the Judgment Clerks Desk (Roonr appear _ 141B . ) LUCY BILLINGS, J.S.C.: I. BACKGROUND Plaintiff Jack Shutzman sues to recover damages for defendants' legal malpractice while representing plaintiff in an action where his former wife sought to relocate their children to Texas. Before plaintiff commenced this malpractice action, defendant law firm, I r a Garr PC, commenced an action for breach of contract against Shutzman to recover attorneys' fees for the firm's services in that same post-divorce action for which he sues here. In the firm's action against Shutzman, the court awarded the firm a judgment for much, although not all, of the fees claimed. Ira E. Garr, PC v , Shutzman, Index No. 3 7 9 T S 0 8 (Civ. Ct. N . Y . Co. June 7 , 2010). Shutzman appealed the judgment against him, but the Appellate Term dismissed his appeal March 1, 2012. Irg E. Garr, PC v , Shutzman, 2012 N.Y. Slip O p . 665983(U) (App. Term 1st Dep't Mar. 1, 2012). Defendants move to dismiss this action on the grounds of collateral estoppel and failure to state a claim. shutzman.139 1 C.P.L.R. 5 [* 3] 3211(a) ( 5 ) and ( 7 ) . For the reaaonB explained below, the court grants defendants' motion and dismisses this action. 11. THE CIVIL COURT DECISION In the firm's action against Shutzman f o r attorneys' fees, the Civil Court found that the experience of defendants here, the firm and its individual attorneys Garr and White, in child custody and visitation litigation merited the hourly rate claimed. Shutzman claimed defendants' representation was unsatisfactory to him, but. did not articulate their incompetence or malpractice or any actions by them without his consent. Shutzman specifically objected to the fees claimed f o r a cross-motion defendants filed on his behalf to restrain his former wife's relocation. The Civil Court disallowed all but a portion of those fees, finding the cross-motion unnecessary after the court in the post-divorce action already had scheduled a hearing on whether to permit the relocation. The Civil Court allowed s o l e l y thoBe fees attributable to defendants' preparation for the hearing. The only other claimed fees that the Civil Court disallowed were for conferences between the firm's attorneys, finding those fees unwarranted in view of the experience that the attorneys' high rates reflected. 111. PLAINTIFF'S CLAIMS IN THIS ACTION In contrast to the Civil Court action commenced by defendant firm, in this action by plaintiff Shutzman he now claims that defendants were incompetent in representing him, in that they failed to seek the judge'a recusal in the post-divorce action shutzrnan.139 2 [* 4] when the judge became biased against Shutzman because he refuse1 to agree to a proposed settlement. Although the Civil Court did not address this issue directly, the court nowhere indicated that their representation. Plaintiff further claims that defendants attempted to settle the post-divorce action on his behalf contrary to his directions. By awarding defendant firm attorneys fees for t h e attorneys work on the settlement, however, the Civil Court necessarily determined that defendants services in negotiating a settlement were warranted and valuable. ,Moreover,because the parties never reached a settlement of the post-divorce action, leaving the judge presiding over it to issue an inte?im order permitting plaintiff s former wife to relocate with their children, plaintiff fails to draw any causal connection between defendants work on t h e settlement and the unfavorable order. Defendants advised plaintiff to appeal the order and offered their services toward that end, but plaintiff discharged defendants, never appealed the order, and, insofar as the record reveals, never pursued a more favorable permanent result in the trial court. IV. APPLICABLE STANDARDS Defendants Motion to DiBmisB Plaint.iff 9Claims A, Upon defendants motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court may not rely on facta alleged by defendants to defeat the claims unless the evidence is in admissible form, demonstrates the absence of any significant shutzman.139 3 [* 5] dispute regarding those facts, and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 5 8 8 , 595 ( 2 0 0 8 ) ; Goshen v. Mutual L i f e Ins. Co. of N , Y . , 98 N.Y.2d a t 3 2 6 ; Leon v. Martinez, 8 4 N.Y.2d 83, 8 7 - 8 8 (1994); Yoahiharu Iqarashi v. Shphaku Hiqqshi, 2 8 9 A.D.2d 128 (1st Dep't 2001). The court must accept the complaint's allegations as t r u e , liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonqon v. Citv of New York, 9 N.Y.3d 825, Goehen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 827 (2007); 326; Harris v. IG Greenpoint C ~ r p . ,7 2 A.D.3d 6 0 8 , 609 (1st Dep't 2010); Viq v , New York Hairspray Co . , L.P., 6 7 A.D.3d 1 4 0 , 144-45 (1st Dep't 2009). The court may dismiss a c l a i m based on C.P.L.R. 5 3 2 1 1 ( a ) ( 7 ) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG aeenpoint Corp., 7 2 A.D.3d at 609; Frank v. DaimlerChrysler Q r p . , 292 A.D.2d 118, 121 Corn., 2 8 2 A.D.2d 180, 183 (1st Dep't 2002); Scott v. Bell Atl. (1st Dep't 2001). Defendants a l s o seek dismissal pursuant to C.P.L.R. 5 3211(a) (5) under the doctrine of collateral estoppel, which bars relitigation of an issue that necessarily has been decided in a prior action, as long as the party against whom the doctrine is invoked was provided a full and fair opportunity to contest the prior controlling decision. Tvdinss v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199 (2008); Buechel v. Bain, 97 N.Y.2d 295, 303-304 (2001); Maher v. Campwna, 60 A.D.3d 1009, 1011 (2d Dep't 2009). shutzman.139 The Civil Court's final judgment on 4 [* 6] defendant firm's p r i o r claim f o r attorneys, fees thus precludes relitigation of claims actually litigated and determined in the Civil C o u r t action and claims for different relief that arise from the same transactions between the parties and could have been determined in the prior action. & Landau v. LaRossa, Mitchell ROSS, 11 N.Y.3d 8, 12 (2008); Josey v. Goord, 9 N.Y.3d 386, 389-90 (2007); Matter of Hunter, 4 N.Y.3d 260, 269 (2005); Pgrker v. Blauvelt Volunteer F i r e C o . , 93 N.Y.2d 343, 3 4 7 (1999)* Defendants bear the burden to demonstrate that plaintiff's claims in his current action for legal malpractice are the same as the defenses he raised or could have raised in the prior action for attorneys' fees. See Lusk v . Weinstein, 85 A.D.3d 445, 446 (1st Dep't 2011); North Am. Van Lines, Inc. v. American Intl. Cos., 38 A.D.3d 450, 451 ( 1 s t Dep't 2007); flmBase Corp, v. Pryor Cashman Sherman & Flynn LLP, 35 A.D.3d 174, 175 (1st Dep't 2006). Since t h a t prior action determined the value of the services by the individual attorneys G a r r and White as well as defendant firm, that result binds Shutzman equally against all defendants. Buechel v. Bain, 97 N.Y.2d 295, 303-304; Lau v. Capital One Bank, 63 A.D.3d 641 (1st Dep't 2009); Academic Health PrQfessiomLR I n a . Assn. v, Lester, 30 A . D . 3 d 3 2 8 , 3 2 9 (1st Dep't 2006). See Rand v. Texacg, Inc., 305 A.D.2d 285 (1st Dep't 2003). B. Leqal Malpractice -Claim To establish legal malpractice, plaintiff must plead and ultimately prove that defendant attorneys' professional ehutzrnan.139 5 [* 7] negligence proximately caused him actual damages. Shayne, Dachs, Staniaci, Corker & Saver, 8 Rudolf v. N.Y.3d 438, 442 (2007); Kaminsky v, Herrick, Feinstein LLP, 59 A.D.3d 1, 9 (1st Dep't 2008); RWSQ v. Feder, Kaszovitz, Isgacson, Weber, Skala & Bass, 301 A.D.2d 63, 67 (1st Dep't 2002); Between The Bread Realty Coyp. v. Salane Hertzfeld Heilbronn Chfiety A.D.2d 380 (1st Dep't 2002). & Viener, 290 Defendant attorneys must have failed to use reasonable skill and knowledge that members of the legal profession ordinarily possese. Stanisci, Corker & Rudolf v. Shavne, Dachs, Sauer, 8 N.Y.3d at 442; McCoy v. Feinrnan, 99 N.Y.2d 295, 301 (2002); Arnav Indus., I n c . Retirement T r w t v . Brown, Rayaman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 3 0 3 304 (2001); Kaminsky v, Herrick, Feinsteiv LLP, 59 A.D.3d at 9. To establish causation, plaintiff must show that he would have prevailed in the post-divorce action but for defendants' negligence. Rudolf v. Shayne, Dachs, Staniaci, Corker & $ auer, 8 N.Y.3d at 442; AmBase Corp. v. Davis Polk Wardwell, 8 N.Y,2d 424, 428 (2007); Kaminsky v, Herrick, Fe instein LLP, 59 A.D.3d at 9; Between The Bread Realty Corp. v. Salans H e r t z f e l d Heilbronn Christv v. & V i e n e r , 290 A.D.2d 380. PLAINTIFF FAIL$ TO ALLEGE ANY LACK OF PROFESSIONAL SKILL THAT CAUSED THE U N F A V O W L E RESULT IN TPE POST-DIVORCE ACTION. Plaintiff admits that he understood the proposed settlement terms and does not claim that defendants failed to explain the terms or consequences to h i m or t h a t defendants themselves believed the proposal was less than the best possible resolution shutzman.139 6 [* 8] in the post-divorce action. See Harvey v. Greenberq, 82 A . D . 3 d 683 (1st Dep t 2011); Garnett v. Fox, Horan & Cameyini, LLP, 82 A.D.3d 435 (1st Dep t 2011). N o r does he ever allege that the settlement he rejected as a full and final resolution was less favorable than the relief awarded. Unless plaintiff shows that defendants mistakes or shortcomings in representing him caused the unfavorable result, he fails to sustain a claim for legal malpractice. Kaminskv v, Herrick, Feinatein LLP, 59 A.D.3d at 12; .CITES. See Garnett v. Fox, Horan & Camerini, LLP, 8 2 A.D.3d 435; Katebi v, Fink, 51 A.D.3d 424, 425 (1st Dep t 2008); Sutherland v . Milstein, 266 Other than seeking recusal and A.D.2d 33, 34 (1st Dep t 1999). refraining from efforts toward settlement, he never specifies what means defendants could have employed or any legal theory that might have prevented his children s relocation during t h e school year or reversed the earlier award of custody to their mother. Although he insists that recusal was warranted a f t e r his attorneys negotiated a settlement that he never authorized and hence rejected, triggering the judge s negative reaction, he offers no concrete grounds beyond his impression of hostility and suspicion of bias on which a motion for recusal likely would have been successful and the outcome before a different more favorable. Nor does plaintiff point to anything in the judge s decision demonstrating bias. Kamisskv v, Herrick, Feinsteip LLP, 59 A.D.3d at 8. O t h e r than by presenting plaintiff an objectionable shutzman.139 7 [* 9] proposal, plaintiff doeB not indicate that defendants' settlement efforts caused the unfavorable litigated outcome or that this or other tactics, strategic choices, or exercises of judgment by defendants were so unreasonable as to demonstrate professional incompetence. Rodriquez v. Fredericks , 213 A.D.2d 176, 178 (1st Dep't 1995). Thus, even though plaintiff may claim defendants' representation was ineffective, he fails to draw a connection between any mistakes or failures and the result. Herrick, Feinstein L L P , 59 A.D.3d at 12. Kaminsky v, In fact, had he followed defendants' advice and either agreed to the proposed settlement or appealed the .unfavorable interim order, or had he pursued a more favorable permanent order, t h e ultimate result might have been more favorable. He thus precluded defendants' "pursuit of the very means by which defendants' representation of plaintiff . * . could have been vindicated" by ultimately prevailing in the post-divorce action. PC, Rupert v. Ggteg & Adams 83 A.D.3d 1393, 1396 (4th Dep't 2011). See Rodriquez v. Fredericks, 213 A.D.2d at 178. VI. THE CIVIL C O WT'S AWARD OF ATTORNEYS' FEES FOR DEFENDANTS' REPRESENTATION IN THE POST-DIVORCE ACTION BARS PLAINTIFF'S RErOVERY IN THIS ACTION. The portions of defendants' claim for attorneys' fees that the Civil Court disallowed were unrelated to defendants' care or skill in negotiating a settlement or opposing the relief sought by plaintiff's former wife. Those disallowed fees were all for unnecessary work, not for careless or unskillful mistakes or shortcomings. In awarding defendant firm attorneys' fees for the shutzrnan.139 8 [* 10] entire remainder of defendant attorneys' representation of plaintiff, including their work both on the proposed settlement and on opposing his children's relocation and advocating his rights to custody and visitation, the Civil Court necessarily determined that those services did not constitute malpractice. Kinberq v. Gar r, 28 A.D.3d 245, 246 (1st Dep't 2006); Koppelman v. Liddle, O'Connor, Finkelstein & Rgbinqn, 246 A.D.2d 365, 366 (1st Dep't 1998); Maher v. Campaqna, 60 A.D.3d at 1011; AltamQre v , Friedman, 193 A.D.2d 240, 246-47 (2d Dep't 1993). The Civil Court decision's preclusive effect depends on whether Shutzman was provided a full and fair Opportunity to contest the decision and to litigate the attorneys' incompetence, failures, and neglect. LLP - I Tydinqs v. Greenfield, Stein & Senior, 11 N.Y.3d at 199; Buechel v. Bain, 97 N.Y.2d at 303-304; Maher v. Campaqna, 60 A.D.3d at 1011; Altamore v . Friedman, 193 A.D.2d at 245. The decision itself reflects that the scope of the action was unlimited, so that Shutzman was free to present and cross-examine any evidence regarding the nature and quality of the attorneys' legal representation, even if he did not actually articulate or litigate a malpractice claim as directly as in this action. Geretein v, 5 6 7 t h Ave. LLC, 88 A.D.3d 189, 202-203 (let Dep't 2011); plarno v , McDaniel, 44 A.D.3d 149, 1 5 4 (1st Dep't 2007); Koppelman v. Liddle, O'Connor, Finkelstein & Robinson, 246 A.D.2d at 366; Altamore v , Friedman, 193 A.D.2d at 245-46. Nor does he contend that he was in any way constrained in the prior action or that there was any understanding that the shutzman.139 9 [* 11] attorneys fees litigation would not affect the merits of any legal malpractice claim. Gerstein v. $6 7th Ave. LLG, 88 A.D.3d at 203; Alamo v. McDaniel, 44 A.D.3d at 154; Altampre v. Friedman, 193 A.D.2d at 248. Since malpractice was a defense to the attorneys action to recover for their professional services, and t h e dispute over fees and the malpractice claims arose from the same transaction, Shutzman may not now limit the preclusive effect of the decision in the action for fees to the quantitative issues regarding rates and whether the attorneys expended the hours claimed. Koppelman v. Liddle, O Connor, Finkelstein & Robinson, 246 A.D.2d at 366; Altarnore v. Friedman, 193 A.D.2d at 246-47. Instead, defendants successful prosecution of their action to recover fees for the same legal services that plaintiff now claims were performed negligently bars this malpractice action. E . q . , Koppelman v. Liddle, O Conngr, Finkelstein & Robinson, 246 A.D.2d at 366; Piroq v. Inqber, 203 A.D.2d 348, 349 (2d Dep t 1994); Altimore v . Friedman, 193 A.D.2d at 247. See Gerstein v , 56 7th Ave, LLC, 88 A.D.3d at 202-203; Weissman v. Keesler, 78 A.D.3d 465, 466 (1st Dep t 2010). VII. CONCLUSION For each of the reasons explained above, the court grants defendants motion to dismiss the complaint. C.P.L.R. 5 5 3211(a) (5) and (7). This decision constitutes the court s order and judgment of dismissal. DATED: May 18, 2012 L1 3rnJ LUCY BILLINGS, J.S.C. shutzman.139

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