Savitsky v LeCrichia

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Savitsky v LeCrichia 2013 NY Slip Op 32826(U) October 23, 2013 Supreme Court, New York County Docket Number: 117786/2009 Judge: Joan A. Madden 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] SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY HON. JOAN A. MADDEN · J.S.C. PRESENT: Justice Index Number : 117786/2009 SAVITSKY, ROBERT vs. LECRICHIA, ANTHONY F. SEQUENCE NUMBER : 001 Fl L D PART ti INDEX N O . - - - - - NOV 06 2013 MOTION DATE _ _ __ COUNTY CLERK'S OFF~~NsEa.No. _ __ NEW YORK SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause Answering Affidavits - I No(s)._ _ _ _ __ I No(s). - - - - I No(s). - - - - - Affidavits - Exhibits Exhibits Replying Affidavits Upon th~ foregoing papers, it is ordered that this motion is~~~... ~~£~ ~ --fkL. ~ du-/l5~ ~ ~~t w u i= (.(') ;:) ""') 0 l- o w a::: a::: w u.. w a::: ¢ ¢ >- .....I~ .....I z => o· u.. U) I- <( u w w a::: ~ g, w z a:::~ !!2 0 w ...I en ...I u LL. <( z 0 0 w i'.: i= a:: 0 0 ~ u.. ~ If ( . / ---y~--=---/=-'---' J.S.C. . 1. CHECK ONE: ., ..................................................................... ~E DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 ~IED SETTLE ORDER 0DONOTPOST NON-FINAL DISPOSITION GRANTED IN PART 0 ~HER SUBMIT ORDER FIDUCP.RY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IAS PART 11 ----- --- -----x Robert Savit:sky, Index No: Plaintiff 117786/2009 -against- F\L Anthony F. LeCrichia, Esq. (individually) d/b/a Law Office of Anthony LeCrich , Law Office of Anthony LeCrichia, PC, and Law Off ice of Anthony LeCrichia, LLC, NOV 06 2013 TY CLE.Rh.'S u1=F\CE couN NEW YORK Defendants. ------------ ------------ --- - ----x Joan A. Madden, J.: 12, Plaintiff moves, pursuant to CPLR in this action for legal malpractice. st that, pursuant to CPLR 3212 r sum.~ary judgment s oppose and De (b), the court search the record and dismiss plaintiff's complaint. 1 Parties' Allegations and Underlying Background Plaintiff hi Anthony F. LeCrichia (LeCrichia) as his attorney on January 13, 2004, pursuant to a retainer agreement (the Retainer), to represent him in a then-pending action in the United States strict Court for the Southern Dist York entitled Robert Sa Mazzella, Louis Mazzella, ct of New tsky v Louis Mazzella, Sr., Anne Jr.; Claude Castro,, 1 Castro & Karten, When plaintiff's counsel failed to appear for oral argument, the motion was submitted without argument on consent of defendant's counsel. 1 [* 3] thy Dowdr Louis Mazze_Lla Irrevocable Trust r F.ischmanr il. & L Props., Doreen number 09051 98-RWS ~ affidavit, pla 6; plai~tiff schman and CLM Props., (the Underlying Case) EBT at 18). O~ the United States Distr Inc., (plaintif June 28, iff had obtained a judgment (the Under & schman 1991, ng Judgment) Court for the Eastern in strict of Pennsylvania in the amount of $90,000 plus interest from July 1, 1991 exh inst Louis Mazzella, Sr. t B, item 50). (Mazzella) plaintiff ion asserting claims of f Hon. Robert W. "rel estab Underlying Case, and fraudulent conveyance of property. 2005 December 2005 Order) Judge Sweet found that S [or] sh com.~enced ich had been placed in Sweet dismissed plaintiff's complaint by order dated December 2, 3241944). the elements of a fraud . . . s damages" [and] failed to (December 2005 Order at *3). States Court of Appeals for the Second Circuit t Order) The Second (2005 WL tsky had not shown 21, 2006, the December 2005 Order was affirmed by the Ci a af f Mazzella owned an insurance company, onial Assurance Company (Colonial), liqu (LeCri On December Un~ted (the Second (Savitsky v Mazzella, 210 Fed Appx 71 [2006]). Circu~t found that Savits "failed to establish a genuine issue of material fact as to whether he justifiably reli on Mazzella's deposition ... 2 his statements he [* 4] had] were conclusory . . . of his reliance [and that he had] produced no evidence [and,] rather than relying on Mazzellla's representations, Savitsky investigated them and attempted to show they were false [and he had not presented any] evidence that Mazzella owned any interest in the properties, [and] there was no transfer of interest, and thus no fraudulent conveyance" (71 Fed Appx at 7 3) . In this case, plaintiff asserts that LeCrichia failed to properly plead the allegations of fraud in the Underlying Case (plaintiff affidavit, ~~ 17-19). He states that LeCrichia improperly failed to take Mazzella's deposition, failed to present an affidavit of Savitsky's former attorney, failed to negotiate with debtors of the Underlying Judgment and failed to orally argue the appeal of the December 2005 Order (id., 22). ~~ 20, He further states that, while the Retainer did not require LeCrichia to perform appellate work, LeCrichia agreed to do so and he presents an email from LeCrichia dated December 27, 2006 (the December 27 email), stating that he would give the Second Circuit Order "more consideration", thereby indicating that LeCrichia was representing him at that time, within three years of the commencement of this action on December 18, 2009 (plaintiff EBT at 25-27). LeCrichia contends that plaintiff cannot show any damages, since the Underlying Judgment was for $90,000 and plaintiff 3 [* 5] ultimately recovered $118,500 as a result of Colonial's liquidation (defendant af 23, 27). 8; plaintiff EBT at 21- He asserts that the Retainer shows that he had no obligation to rform appellate work and that, s malpractice accrued du pla t, 'Il'Il 26 ng his work on the Under his alleged ng Case, iff's complaint is barred by the three-year statute of limitations (defendant affi t, 1[1[ 65-70). LeCrichia states that plaintiff has failed to present an expert to set forth the purported breach of the standard of professional care (id., 'Il'Il 39-41). He further states that there was no proof to support plaintiff's fraud claim in the Underlying Case (id., 'Il'Il 46-48, 53). Finally, he asserts that the alleged negligence of purportedly inadequate pleadings, failing to seek iations, ilure to ta Mazzella's deposition and ilure to orally argue the appeal of the December 2005 Order are, at best, a l fference in strategy and a disagreement as to how to igate the case, rather than malpractice (id., 'Il'Il 44 47, 52 57, ngly, he requests that the court search the 61-64) and, ac record and cii SS aintiff's complaint. Summary Judgment A party seeking summary judgment must make a prima fa case showing that it is entiLled to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of 4 [* 6] any material issue of fact 320, 324 [1986]). (Alvarez v Prospect Hosp., 68 NY2d If the movant fails to make this showing, the motion must be denied (id.). Once the movant meets its burden, then the opposing party must produce evidentiary proof in admissible form sufficient to raise a triable issue of material fact (Zuckerman v City of New York, 4 9 NY2d 557, 562 [ 198 0] ) In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact (Branham v Loews Orpheum Cinemasr Inc.r 8 NY3d 931, 932 [2007]; Dauman Displays v Masturzo, 168 AD2d 204, 205 [1st Dept 1990], lv dismissed 77 NY2d 939 [1991]). However, by whom made, "[a] motion for summary judgment, irrespective of invites a court, even on appeal, to search the record and to award judgment where appropriate" (Fertico Belgiumr S.A. v Phosphate Chems. Export Assn.r 100 AD2d 165, 171 [1st Dept], app dismissed 62 NY2d 802 [1984]; Co.r v State of New York, see also Sage Realty 5 AD3d 584, 585 [2d Dept 2004]). Legal Malpractice "In order to sustain a claim for legal malpractice, a plaintiff must establish both 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 5 [* 7] actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action 'but for' attorney's negligence" NY3d 428, 434 [2007) (AmBase Corp. v Davis Polk for' Wardwell, 8 [internal citation omitted]; see also Estate of Nevelson v Carror Spanbockr Kaster & Cuiffo, [1st Dept 19 9 9] ) . & the 259 AD2d 282, 283 "Proximate cause requires a showing that 'but the attorney's negligence, the plaintiff would ... have been successful in the underlying matter" (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 Cooper v Kelner & Kelner, Lewin, 21 AD3d 731, [1st Dept 2007]; see also 45 AD3d 323 [1st Dept 2007); Brooks v 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]) . Damages must constitute "actual harm as a result [of the malpractice,]" rather than "speculative" damages(Hass & Gottlieb v Sook Hi Lee, 55 AD3d 433, Alter v Cannella, 433 [1st Dept 2008); see also Alter & 284 AD2d 138, 139 [1st Dept 2001]; Phillips- Smith Specialty Retail Group II v Parker Chapin Flattau 265 AD2d 208, & Klimpl, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]). An "error of judgment [or the] selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 v Lipsigr Shapeyr Manus & Moverman, Dept 2011]). 6 P.C., [1985]; Rodriguez 81 AD3d 551, 552 [1st [* 8] "An action to recover damages arising from an attorney's malpractice must be commenced within three years from accrual [and the claim accrues] (McCoy v Feinman, from the day an actionable injury occurs" 99 NY2d 295, 301 [2002]). However, there are "tolls on this three-year limitations period under the continuous representation doctrine" (id.). Finally, to sustain a claim for legal malpractice, a "plaintiff [is] required to establish by expert testimony that defendant failed to perform in a professionally competent manner" (Supp.i.ah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]; see also Merl.in Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 Stern, [1st Dept 2005]; cf. Wo Yee Hing Realty, Corp. v 99 AD3d 58, 63 [1st Dept 2012]). Discussion Applying the above principles to this case, plaintiff's motion for summary judgment must be denied. He has failed to proffer an expert affidavit "that defendant failed to perform in a professionally competent manner" (Suppiah, 76 AD3d at 832). has also failed to present evidence of "actual harm as a result [of the malpractice,]" rather than mere "speculative" damages (Hass & Gottlieb, 55 AD3d at 433). Plaintiff has not presented evidence of the purported fraud in the Underlying Case and he, therefore, has not shown that he "would have succeeded on the 7 He [* 9] merits of the underlying action 'but for' (AmBase, negligence" the attorney's 8 NY3d at 434; McCoy, 99 NY2d at 301 302). The court notes that, while the Reta LeCrichia to [the] rform appellate work, he "agreed to prosecute 1 of Judge Sweet's order to the Court of (LeCrichia af f December 21, LeCri S r did not require t, <JI 19). ls" Second Circuit Order was dated 2006 and the December 27 email indicates that a was actually representing pla iff at that t this action was commenced on December 18, 2009, LeCrichia has not shown that the toll fo continuous representation is inapplicable and, the court declines to dismiss cons ly, plaintiff's complaint based expiration of the statute of l tations (McCoy, 96 AD3d 689, 332333 [1st 689 99 NY2d at 306; G & M Real L. P. [1st Dept 2012}; Matter of Merker, v Masyr, 18 d 332, t2005]). However, plaintiff has failed to proffer evidence of damages as a result of the purported malpractice, that he "would have actual result]n an outcome more favorable to h [than (Alter & Alter, 284 AD2d at 139; see also AmBase, 8 NY3d at 434; Kamin 1, 9 [1st Dept 2008], Further, since he has not shown ck, v 2 NY3d 715 lv denied "an error in judgment ... level of malpractice . . . [nor does the] 8 nstein LLP, 59 [2009]). s not rise to selection of one among d [* 10] .. - . several reasonable courses of action" Rodriguez, (Rosner, 81 AD3d at 552; Mars v Dobrish, 2009 J, 1 v di SS 14 NY3d 904 65 NY2d at 738; 66 AD3d 403 [1st [2010]). a failed to present Plaintiff has not shown that LeCri evidence in the Underlying Case that would have substantiated plaintiff's fraud claims. Rather, his assertion that LeCri should have taken Mazzella's depos negotiate with orally argued the ors o ion, should have sought to Judgment and should have the Underly al ia the December 2005 Order amount, at best, to a critique of LeCrichia's manner of prosecuting the Underlying Case, but do not demonstrate that LeCrichia "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which [resulted] actual damages to [him) that [he] would have s merits of the underlying action 'but for' ligence" McCoy, (AmBase, 8 NY3d at 434 [ on t [LeCrichia's] ternal citation tted); 99 NY2d at 301-302). Thus, pursuant to CPLR 3212 (b), searching the record, the court dismisses plaintif""'s complaint. Accordingly, is ORDERED that plaintiff's mot for suITLmary judgment s denied; and it is further ORDERED that, upon searching 3212 {b), plaintiff's complaint is di 9 record, pursuant to CPLR ssed in its entirety, [* 11] .. . . .. with costs and disbursements to defendants as taxed by the Clerk of the of the Court, upon submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. DATED: October / ENTER: 2013 J.S.C. NOV 06 2013 COUNTY CLE!-,r, ~·· NEWYOhK 10 FICE

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