Miller v Friedman

Annotate this Case

Download PDF

Miller v Friedman 2013 NY Slip Op 32030(U) August 23, 2013 Sup Ct, New York County Docket Number: 400833/12 Judge: Joan A. Madden 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 813012013 [* 1] SUPREME CQURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART tndex Number : 400833/2012 MILLER, STEVEN A. vs . FRIEDMAN, DANA B., ESQ. SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION SEQ. NO. DISMISS The following papers, numbered 1 to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits - Exhibits IW s ) . I No(s). INow Replying Affidavits Upon the foregoing papers, it is ordered that this motion is h k v c ~ - h c - o c d ~Decrswv p ~ k oik- (!uk& G ( ( 0 c d 0 btc- u1 k f 1.13 FILED NEW YORK COUNTY CLERKS OFFICE 5 , J.S.C. I. i! 0- DISPOSED CASE k N - F i N A L DisPosimN 0GRANTED DENIED GRANTED IN PART 0OTHER 0SETTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE CHECK ONE: ........s....l....................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ [* 2] SUPREME COURT OF THE STATE OF I E W Y O N COUNTY OF NEW YORK: PART 11 .................................................................... X STEVEN A. MILLER, INDEX NO. 400833/12 Plaintiff, -againstDANA B. FRTEDMAN, ESQ. and THE LAW FIRM OF KLEINBERG & FRIEDMAN, Defendant. FILED In this action for legal malpractice, defendants move for an odd COUNTY 321 1(a)( 1) and ( 5 ) to dismiss the complaint on statute of limitations grounds and to strike plaintiffs request for punitive damages. Plaintiff, who is pro se, opposes the motion. Plaintiff alleges that on May 1, 2008, he filed a workers compensation claim with the New York State Worker s Compensation Board ( WCB ). He further alleges that he attended a hearing of the WCB on December 3 1,2008, at which a determination was made that plaintiff was injured during the course of his employment with the City of New York, and that he was entitled to be compensated at a rate of $100 per week from February 8,2008, to August 25,2008. It is alleged that after the hearing, the defendant law firm was notified that it should obtain a letter of consent before any settlement of plaintiffs claim. However, plaintiff alleges that the The court notes that by decision and order dated January 29,2013, the court denied defendants motion to dismiss for lack of service by giving plaintiff additional time to effectuate service, and permitted defendants to renew the motion to dismiss in the event plaintiff properly served them Although the January 29,2013 decision and order discussed the statute of limitations issue, defendants did not annexd it to their motion or mention the decision in their papers. 1 [* 3] defedmt iatv firm settled the claim h r $8,509 without such letter of consent, and h i t plaintiff was therefore precluded from obtaining any workers compensation benefits from February 8, 2008, through January 11,201 1, for a total amount of $1 1,500. Defendants argue that plaintiffs claim for legal malpractice accrued on February 13, 2009, when plaintiff accepted the settlement of his worker s compensation case for $8,500. On that basis, the three-year statute of limitations for legal malpractice would have expired by the time plaintiff commenced this action on April 13,2012. Plaintiff, on the other hand, asserts that defendant Friedman joined with his worker s compensation attorney in a campaign to obtain a letter of consent on plaintiffs behalf, and that [oln no less than three occasions, commencing with February 4,201 0, the defendant held himself out as plaintiffs attorney in an attempt to obtain the letter of consent nunc pro tunc. In connection with his opposition to the prior motion to dismiss, plaintiff submitted an order to show cause filed on his behalf by defendant Dana Friedman as attorney for Petitioner Steven Miller, in April 201 1 in Queens County Supreme Court, which sought nunc pro tunc relief directing that respondent City of New York issue the necessary consent letter in to order preserve petitioner Steven Miller s entitlement to any future Worker s Compensation benefits (Steven Miller v. City of New York, Index No. 29910 1, Sup Ct, Queens Co). Plaintiff also submitted letters sent on his behalf by defendant Friedman to the New York City Law Department in February and March 2010, requesting settlement consent. An action for legal malpractice must be commenced within three years of accrual, regardless of whether the underlying theory is grounded in tort or contract law. See McCoy v. Feinman, 99 NY2d 295,301 (2002); CPLR 214(6). Accrual is measured from the date when the 2 [* 4] ir?,;cryOCC??TS. See Ackerman v. Price Waterhouse, 84 NY2d 535 (1994). However, aider the continuous representation doctrine, when an attorney continues to represent a client in the matter from which the claim arises, the statute of limitations on the legal malpractice claim is tolled and the limitations period does not begin to run until the termination of the attorney-client relationship. Shumsky v. Eisenstein, 96 NY2d 164 (2001); Riley v. Segan, Nemerov & Singer, P.C., 82 AD3d 572 (lstDept 201 1). For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing and dependant relationship between the client and the attorney. Elizabeth Arden, Inc v. Abelman, Frayne & Schwab, 29 Misc3d 1215(A) (Sup Ct, NY Co 2010) (citing Luk Lamellen U. Kuplungbau GmbH v. Lerner, 166 AD2d 505,507 [Td Dept 19901); accord Henry v. Leeds & Morelli, 4 AD3d 229 (lstDept 2004) ( relationship and bond of continuous trust necessary for the continuing representation doctrine to apply ). At least at this juncture, it cannot be said that plaintiffs claim is time-barred, in view of evidence submitted by plaintiff to support his allegations that defendants continuously represented him and that the most recent representation was in April 20 1 1. Furthermore, contrary to defendants position, under these circumstances, plaintiffs complaint to the Disciplinary Committee filed in 20 10, does not establish as a matter of law that it no longer represented plaintiff in April 20 11. Accordingly, the motion to dismiss on statute of limitations grounds is denied. However, defendants motion is granted to the extent of striking plaintiffs request for punitive damages. A punitive damage claim in a tort action must be based on evidence of conduct which exhibits a wanton or reckless disregard of [a] plaintiffs rights and acts which are grossly negligent and reckless. Giblin v. Murphy, 73 NY2d 769,772 (1998). An act is 3 [* 5] vmtton 2nd reckless when done mder circt?mstzaces showiiig heedlessness and utter disregard for the rights and safety of others. Gruber v. Craig, 208 AD2d 900, 901 (2d Dept 1994)(internal citations omitted; see 1B PJI 2:278 (2006 ed). Here, the conduct alleged in the complaint does not rise to the level of moral culpability that would warrant an award of punitive damages. Financial Services Vehicle Trust v. Saad, 72 AD3d 1019, 1021 (2d Dept 2010). Accordingly, it is hereby ORDERED that defendants motion to dismiss the complaint on statute of limitations grounds is denied; and it is hrther ORDERED that plaintiffs request for punitive damages is stricken; and it is fwther ORDERED that the defendants shall answer the complaint within 30 days of this decision and order; and it is further ORDERED that the parties shall appear for a preliminary conference in P r 11, room at 351,60 Centre Street, on October 31,2013 at 9:30 am. DATED: A u g u s q , 2013 NEW YORK COUNTY CLERK S OFFICE 4

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.