Palmer v Mulvehill

Annotate this Case

Download PDF

Palmer v Mulvehill 2012 NY Slip Op 33046(U) December 19, 2012 Sup Ct, Suffolk County Docket Number: 11-17748 Judge: Daniel Martin 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] \I Kilt I I < Olil>L I< ". . INDEX No. --* GI e- 11- 17748 ,SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESE. T: V Mon. - DANIEL MARTIN Justice of the Supreme Court MOTION DATE 8-15-1 1 (#004) MOTION DATE 9-13-1 1 (#005 & #006) MOTION DATE 2-14-12 (#007) 8-7-3013 ADJ. DATE Mot. Seq. # 004 - MG # 005 - MotD # 006 - MotD # 007 - MG _. AMENDED DECISION: Plaintiff, - against - BAUMAN & KUNKIS, P.C. Attorney for Plaintiff 14 Penn Plaza, Suite 2208 New York, New York 10122 L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. Attorney for Defendant Mulvehill 100 1 Franklin Avenue, Room 300 Garden City, New York 11530 NICHOLAS PANZNI, ESQ. Attorney for Defendants Panzini 365 Broadway, Suite 2C Amityville, New York 1 1701 JOHN H . M CJLVEHILL, ESQ., RICHARD E. MILLER, ESQ., NICHOLAS PANZINI, ESQ. and NICHOLAS PANZINI, P.C., RICHARD E. MILLER, ESQ. Attorney for Defendant Miller 4 Bridge Branch Road Sniithtown, New York 1 1787 I $on (lie following papers numbered 1 to 52 read on these motions to dismiss and to amend aiiswers : Notice of Motion' 0 1 - d e rto Show C'ause (004) and supporting papers 1 - 10 ; Notice of Cross Motion (005)and supporting papers 11- 15 ; Notice 01'Cross Motion (006) a n d supporting papers 16 - 19 ; Answering Affidavits and supporting papers 2 0 - 30 ; Replying Affidavits and supporting papers 3 I - 38 ; Notice ofMotiodOrder to Show Cause (007) and supporting papers 39 - 43 ; Answering Alfidavits a n d supporting papers 44 - 52 ; Replying Affidavits and supporting papers 53 - 54 ; Other -; p it is.) -( & [* 2] Palmcl- 1 Mulvehill Index KO 1 1 - 1774s Page %o. 2 ORDERED that the motion (005) by defendant John H. Mulvehill, Esq. for an order dismissing the complaint. and the motion (007) of plaintiff for an order substituting the bankruptcy trustee for plaintiff, are consolidated for the purposes of this determination and are decided together with the cross motions of defendants Richard E. Miller, Esq. and Nicholas Panzini, Esq. and Nicholas Panzini, P.C. for orders periiii ttitig them to amend their answers and dismiss plaintiff s complaint; and, it is further ORDERED that the motion by the defendant John H. Mulvehill, Esq. for an order dismissing plaintiff s complaint in its entirety pursuant to CPLR 321 1 (a) ( 1 ), ( 3 ) , and (7) is granted, only as against defendant John H. Mulvehill, Esq.; and, it is further ORDERED that the portion of the cross motion by the defendant Richard E. Miller, Esq. which seeks an order permitting him to amend his answer to change the date of the accident is granted, and the portion of the cross motion which seeks an order dismissing plaintiffs complaint against him in its entirety is denied; and, it is further ORDERED that the portion of the cross motion by the defendants Nicholas Panzini, Esq. and Nicholas Panzini, P.C., which seeks an order permitting them to amend their answer is denied and the portion of the motion for an order dismissing plaintiffs complaint as asserted against them is denied; and, it is further ORDERED that the motion by the plaintiff for an order substituting the trustee, R. Kenneth Bamard, as the successor in interest to the debtor plaintiff Brinett Palmer, and amending the caption accordingly is granted.. Plaintiff commenced this action on May 26, 201 1 to recover damages she allegedly sustained as a result of the legal malpractice of each of the defendants. Plaintiff alleges that she sustained serious personal injuries when she was caused to fall through a fold away bed on a cruise ship on December 21, 2006 while employed to care for another cruise ship passenger. On March 2, 2007 plaintiff and defendant, Vicholas Panzini ( Panzini ), executed a contingent retainer agreement wherein plaintiff retained him to prosecute or adjust all claims for personal injury/wrongfLd death and other damages resulting from injuries which [she] sustained on or about 12/21/06. In a letter dated April 12, 2007, defendant Panzini advised plaintiff that for the continuity of the case, I will want to forward the bodily tiijLiry file to Mr. Miller. On December 5 , 2008 plaintiff signed a retainer with defendant, John H. M ~ l v ~ h i lEsq. ( Mulvehill ), whereby she retained him to prosecute or adjust [her] claim for damages l, arising fi-om personal injuries and, as well, pain and suffering sustained by [her] on or about the 21 day December, 2006 through the negligence of ... a cruise liner or other persons and the hereby [ S I C ] give you the exclusive right to take all legal steps to enforce the said claim and furthcr agree not to settle this claim i i i any manner without your written consent. This retainer does not include the cost of the prosecution or defense of any appeal. On December 8, 2008 an action was commenced on plaintifl s bchalf against the cruise ship company in the United States District Court for the Eastern District of New York In a h x transmittal sheet to defendant Richard E. Miller ( Miller ), dated July 3 1, 2009, defenciant Miilvehill indicated that this will confirm that there will be a 501.50 split of the attorneys fee i n the above matter (the matter being Palmer v [the cruise line] ). Thereafter, In a Memorandum of Decision and Order dated October 2, 2010, the Hon. Arthur D. Spatt, U.S.D.J. dismissed plaintiffs [* 3] Paliner 1. Mulvehi 11 Index No. 1 1-1 7748 Page No. 3 claims in their entirety on the ground that the applicable one year statute of limitations had run prior to the commencement of the law suit . Plaintiff, as debtor, filed a Cliapter 7 bankruptcy petition in the US Bankruptcy Court for the Eastern District of New York on December 22, 2008. Plaintiff-debtor was discharged in bankruptcy on March 18, 2009, and the bankruptcy closed and a final decree was issued on or about October 12, 2010 (subsequent to the discharge in bankruptcy on January 29, 2010 the bankruptcy court issued an ordlsr granting an application to employ defendants Richard E. Miller and John H. Mullveliill as personal injury counsel to tlie trustee with regard to the action against the cruise ship). On October 25, 201 1 the trustee in bankruptcy, R. Kenneth Barnard, advised the bankruptcy court in his petition to be reappointed as the trustee and to re-open the bankruptcy proceeding, that the above captioned action liad been commenced and that the bankruptcy estate could pursue a recovery upon a legal malpractice theory. By an order dated January 10, 2012, the Hon. Robert E. Grossman, US Bankruptcy Judge, stated in part that R. Kenneth Bamard, as tnistee [is authorized to retain, as Special Counsel, pursuant to 11 U.S.C. 327 (e) and 328 of the Bankruptcy Code and F.R.B.P. Rule 2014 (a), to prosecute and conclude a legal malpractice action entitled Brinett Palmer v John Mulveliill, Esq., Richard E. Miller, Esq., Nicholas Panzini, P.C., Index No.: 17748/1 1 (the Malpractice Action ) ... [and] that the issuance of the Discharge of the Debtor by the Bankruptcy Court shall riot divest the Tiustee and the Estate of the Debtor of any interest in the Malpractice Action or the proceeds derived therefrom. s$ Defendant Mulvehill now moves for an order dismissing plaintiffs complaint against him on the grounds that the documentary evidence shows that he was retained by plaintiff after the statute of limitations had run on her underlying lawsuit, thus his actions could not be tlie proximate cause of any injuries she may have suffered as a result of a late commencement of that suit; that an action against him for failing to commence a legal malpractice action against the co-defendants on plaintiffs behalf is improper because he was not retained to prosecute a legal malpractice action; that plaintiff was not damaged by an alleged failure on his part to commence a legal malpractice action on her behalf; and, that plaintiff has no standing to bring the within lawsuit since she did not disclose a claim against her counsel, based upon their representation of her in the underlying lawsuit, in a bankruptcy petition filed by her on or about December 22, 2008. In support of his motion, defendant Mulvehill includes a copy of the sunimoiis and complaint, defendant Panzini s answer with cross claims, the retainer agreement between plaintiff and him, Judge Spatt s October 2, 2010 menioranduin decision and order, and plaintiffs voluntary banltruptcy petition. Co-defendants, Miller and Paiizini, cross-move for orders permitting each of them to amend their answers to 1 nclude an additional affirmative defense that plaintiff failed to include her personal injury action against the cruise liner and her legal malpractice action against them in her bankruptcy petition, and dismissing plaintiffs complaint on the grounds that she lacks standing to bring the within action for failing to include her personal injury and legal malpractice actions as assets in her 2008 bankruptcy petition. Defi-ndant Miller alleges that he first became aware of the plaintifys voluntary bankruptcy petition upon being served with a copy of the same which was included in co-defendant John H. Mulvehill, Esq. s motion papers. Defendant Panzini states that he first learned of [plaintiffs] bankruptcy action upon being served with co-defendants [ S I C ] motion papers. He relies on codefendant Miller s arguments conccming the bankruptcy laws and their application to this matter. [* 4] Palmer v Mulveliill Index No. 11-17745 Page No. 4 Defendant Miller includes a copy of his answer and proposed amended answer with his cross motion, ~vhile defendant Panzini submits his proposed amended answer with his cross motion. A C'PLII 32 1 1 ( a ) (1) motion to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law (see Peter Willinins Eiiterprises, Iric. v New York State Urbarz Dev.Corp., 90 AD3d 1007, 935 NYS2d 624 [2d Dept 201 11; Tirrkat v Laleznriniz Developers, Iizc., 52 AD3d 595, 506, 860 NYS2d 153 [2d Dept 20081). In order to sustaiii a claim for legal malpractice, the plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to her (McCoy v Feiizmnrz, 99 NY2d 295, 301, 302, 755 NYS2d 693 [2002]). A cause of action sounding in legal malpractice accrues on the date the alleged malpractice was committed, not on the date it was discovered (St. Stephens Baptist Clturcli v SaIzmaiz, 37 AD3d 589, 830 NYS2d 248 [2d Dept 20071). Here, the time to file a complaint as a result of damages plaintiff allegedly sustained in the cruise ship accident expired on December 2 1, 2007, thus the plaintiffs claim for legal malpractice accrued on December 22, 2007.' Since the retainer agreement with defendant Mulvehill was not signed until December 5, 2008, after the statute of limitations had expired with regard to plaintiffs underlying claim against the cruise ship, he cannot be liable for malpractice in failing to file the claim in a timely manner. Consequently, defendant Mulvehill has established a defense to plaintiffs claim of legal malpractice as a matter of law in allegedly failing to bring a timely action against the cruise liner. On a motion to dismiss a complaint pursuant to CPLR 321 1 (a) (7), the pleading is to be affixded a liberal construction and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. The facts pleaded are presumed to be true and are to be accorded every favorable inference (see, Lticin v Goldman, 68 AD3d 1064, 1065, 893 NYS2d 90, 92 [2d Dept 20091). In addition, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see, id.).Also, where evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one (see, d.). Defendant Mulvehill was retained by plaintiff to prosecute her claim against the cruise liner for the damages she allegedly sustained in a fall on the ship. Pursuant to the plain language of the retaincr agreement he was not retained to commence an action against the co-defendants for their alleged legal malpractice. Thus, the plaintiff has failed to state a cognizable cause of action against defendant Mulvehill as to his failure to bring an action against the co-defendants (see AinBase Corp. v I Despite the fact that a cause of action for legal malpractice accrued on the date the nialpracticc was committed, /.e. December 22, 2007, plaintiff was not obligated to commence her action against her attorneys during the period in which he/they continued to represent her in the actioii to recover damages froin the cruise ship accident, as the rule of continuous representation tolled the running of the statute of limitations on the nialpractice claim until the ongoing representation was completed, which appears to be on or after October 2, 2010 (see SIisiiizskjy v Eiseiisteiri, 96 NY2d 164, 726 NYS2d 365 [2001]; Glmnm v Alleri,57 NY2d 87, 453 NYS2d 674 [ 19821). [* 5] Palmer L Mul\,ehill Index No. 1 1 - 17743 Page No. 5 Davis Polk & Wardwell, 8 NY 3d 428, 834 NYS2d 705 [2007]).Accordingly, in light of the aforementioned, plaintiffs complaint as to defendant M ulvehill is dismissed. On a motion to dismiss a complaint pursuant to CPLR 321 1 (a) ( 3 ) ,the defendant must show that the plaintilTdoes not have legal capacity to sue. Where a party Fails to schedule an asset in a bankruptcy proceeding, she IS thereafter deprived of standing to raise it in a subsequent legal proceeding as the asset becomes the property of the bankrupt plaintiffs estate, and, thus if her claim accrued while her bankruptcy proceeding was still pending, she would not be peniiitted to institute a proceeding involving the said asset (Barranco v Cabrirzi Med. Ctr., 50 AD3d 281, 855 NYS2d 431 [ l s t Dept 20081). A lawsuit that is initiated prior to the bailkruptcy petition or that could have been initiated by the debtor prior to the bankruptcy petition, beconie[s] part of the bankruptcy estate subject to the sole direction and control of the trustee, unless exempted or abandoned or otherwise revested in the debtor (Dennis v Bar1 k Liii ited, B .R. , 201 1 U.S. Dist Lexis 102292 [Dist of MD 201 11). Thus, the question to be determined is whether the plaintiffs claims accrued before she filed her bankruptcy petition. Plaintiff alleges in her opposition, and annexes portions of her bankruptcy petition (the original petition was filed on December 22, 2008) which indicate, that the underlying action against the cruise line was added to the bankruptcy petition, in or about October 2010. (Therefore, the issue with regard to standing as it relates the cruise line action must be denied as moot. It should be noted that the bankruptcy trustee was authorized to retain defendants Richard E. Miller, Esq. and John H. Mulvehill, Esq. as co-counsel to prosecute and conclude the cruise line lawsuit.) Insofar as defendants maintain that the within action for legal malpractice must have been alleged in the bankruptcy petition, plaintiff was not aware that she possessed that cause of action until on or after October 2, 201 0, when her cruise ship action was dismissed by the Federal District Court as the result of a statute of limitations violation. The bankruptcy case was closed and a final decree issued on October 12,2010. Thus, the legal malpractice action could not have been included in the bankruptcy petition as originally filed, or thereafter amended to include the cruise line action. Accordingly, as plaintiffs legal malpractice lawsuit was not initiated, nor could it have been initiated, prior to her bankruptcy filing in December 2008, i:he motions by the co-defendants Paiizini and Miller to dismiss plaintiffs complaint on the grounds that she lacl<s standing to sue are denied. Defcndant Miller alleges that lie was not aware of tlie plaintiffs prior bankruptcy petition until he w a s servcd with defendant s motion papers. This statement is at best, disingenuous, since defendant Miller submitted an affirmation dated December 7, 2009 to the United State Bankruptcy Court for the Eastern District of New York in connection with plaintiffs bankruptcy petition that he supported a Chaptcr 7 Trustee s application in connection therewith. Accordingly, because he did not just becoriie aware of a possible defense regarding standing, i n connection with plaintiffs failure to include this matter i n tlie bankruptcy petition and his application to amend his answer to include same, and because thc court has deteniiined that plaintiff has standing to commence the within action, his request to amend his answcr to include tlie lack of standing as a defense is denied. (His application to amend his answer to correct the date of tlie accident from December 26, 2006 to December 21, 2006 is granted, as same is not prejudicial to any party.) Although plaintiff has offered no evidence to show that defendant Panzini wcis aware of her bankruptcy petition, his request to amend his answer to include an affirmative defcnse with rcgard to plaintiffs lack of standing is denied as moot, the court having determined that plaintiff [* 6] Palmer \. Iclul~cliill Index No. 1 1 - 17748 Page No. 6 has standing to commence the within action. Finally, plaintiffs application to substitute the trustee, R. interest to the debtor-plaintiff, and to amend the caption accordin FINAL DISPOSITION X i th Barnard, as the successor in

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.