Devonshire Surgical Facility, LLC v Law Offs. of Leo Tekiel

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Devonshire Surgical Facility, LLC v Law Offs. of Leo Tekiel 2013 NY Slip Op 33451(U) December 16, 2013 Supreme Court, New York County Docket Number: 105558/07 Judge: Cynthia S. Kern 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] SCANNED ON 1/6/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : 105558/2007 PART _ __ DEVONSHIRE SURGICAL ::e vs TEKIEL, LEO LAW OFFICES OF INDEX N O . - - - - - Sequence Number : 004 MOTION D A T E - - - - SUMMARY JUDGMENT MOTION SEQ. NO. - - - The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits----------------- Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - I No(s)._ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is . FILED DEC 19 2013 . NEW YORK w () COUNTY CLERK'S Office ti ::> .., 0 IC w is decided in accordance with the annexed decision. ir: ir: w u. UJ ir: >...J ...J .. -~ z ::::> 0 u. en I- <( () w UJ ir: g, C> (/) ;: UJ z ir: - - LU (/) <( 0 ...J ...J 0 () u. - :c z w 0 1j:: ir: 0 0 :E u. ,J.S.C. Dated: 1. CHECK ONE: ..................................................................... 0 2. CHECK AS APPROPRIATE: ........................... MOTION IS: ~ON-FINAL DISPOSITION CASE DISPOSED D GRANTED ID DENIED 0 OTHER 0 SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST 0 GRANTED IN PART 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ------------------------------------~--------------------------------x DEVONSHIRE SURGICAL FACILITY, LLC, ET AL Plaintiffs, Index No. 105558/07 -against- DECISION/ORDER LAW OFFICES OF LEO TEK.IEL AND LEO TEK.IEL, ESQ., Defendants. ----------------------------------------------------------------------x LAW OFFICES OF LEO TEK.IEL AND LEO TEKIEL, ESQ, l Third-Party Plaintiffs, FILED -againstKENNETH l. KUTNER, ESQ. AND HOFFMAN EINIGER AND POLLAND, PLLC Third-Party Defendants. ~ 19 201l N -------------------------------------------------------------------~(ll1"'1"'1'~ YORK ... A~OFFf~ HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered i the review of this motion for: ~~~~~~~~~~~~-~~~~ Papers Notice of Motion and Affidavits Annexed.................................... 1 Answering Affidavits...................................................................... 23 Replying Affidavits...................................................................... _ ______ 4 Exhibits ..................................................................................... . Plaintiffs have commenced the present action against their fo er attorneys for legal malpractice. They have brought the present motion for summary jud ment, or, in the alternative, deeming certain facts established for all purposes in this action purs t to CPLR section 3212 (e) and (g). For the reasons stated below, the motion is denied in its e tirety. 1 [* 3] The relevant facts are as follows. An attorney Paul Solda ommenced an action on behalf of Dr. Chamberlin's medical practices, Devonshire Surgical Facili y, LLC ("Devonshire) and Carnegie Hall Orthopedic Services, P.C. ("Carnegie"), in New Y rk City Civil Court against Travelors Indemnity Co. (the "Travelors Action") in 2002. The T avelors Action sought payment for medical services rendered by Dr. Chamberlin's medic 1 practices, Devonshire and Carnegie, to fourteen of Travel or's insureds under no fault insuran e coverage. The defendants, Law Offices Of Leo Tekiel and Leo Tekiel, Esq. (the "Tekiel Defe dants"), then assumed the representation in the Travelors Action from prior counsel in the ma ter, Paul Solda, and filed an amended summons and complaint. After the plaintiffs in the Trave ors Action failed to respond to discovery requests which Travelors had served on them, Travelo filed a motion to dismiss the Travelors Action pursuant to CPLR section 3126 for the contin d failure to provide the requested discovery in March 2004. After Travelors filed the moti n to dismiss, former third party defendant Kenneth Kutner ("Kutner") sent a letter to Mr. Teki l dated March 25, 2004 in which he requested, inter alia, that Mr. Tekiel furnish him with all c ptions and index numbers of actions already commenced so that Kutner could prepare substitutio of attorney forms. In response to this letter, Tekiel sent Kutner correspondence dated Mar h 26, 2004 which included a list of nineteen commenced actions with regard to the Tekiel Defe ants' representation of Chamberlin's medical practices. The list included the Travelors Acti n and noted that a motion to dismiss was returnable on April 5, 2004 and that discovery had no been provided. On or about May I 0, 2004, Kutner again sent a letter to Tekiel requesting t at Tekiel adjourn Travelors' motion to dismiss so as to permit Kutner and his co-couns I to "finalize the anticipated substitution of attorneys in the case" being handled for Dr Chamberlin. On May 11, 2 [* 4] 2004, on the return date of the motion to dismiss, the Tekiel Defe dants, through per diem counsel, stipulated in the Travelors action to a self executing cond tional order of preclusion if the requested discovery was not provided within sixty days. The s ipulation also provided that Tekiel was to serve a copy of the stipulation to Kutner, successor directed to serve a substitution of counsel within thirty days of rec ipt of the order. On July 9, 2004, Kutner sent another letter to Tekiel requesting that Tekiel fo ard all outstanding discovery demands and demands for bills of particular, etc. to Kut r. On July 12, 2004, the Tekiel Defendants delivered the files from the Travelors Action an other files to Kutner via messenger service. Kutner immediately delivered these boxes to th offices of Dr. Chamberlin. On or about August 4, 2004, Travelors filed a motion for summary udgment to dismiss the Travelors Action based upon the self executing order of preclusion. Tekiel submitted an affirmation in opposition to the motion in which he took the positio that he was no longer the attorney of record in the case and that Kutner was handling the case. Based on these facts, he requested an adjournment of the motion for summary judgment. A er not hearing any further from Kutner with respect to the substitution of counsel or the trans£ of files, he made a motion to be relieved as counsel on or about September 25, 2004. In the tion to be relieved as counsel, Tekiel affirmed that Chamberlin had failed to respond to an of his requests to discuss the status of the Travelors Action or his request for documents to res ond to Travelor's discovery demands. The court granted the motion ofTekiel to be relieved as c unsel on October 1, 2004 and also granted a thirty day stay of the action so that plaintiffs could obtain new counsel. After the plaintiffs failed to retain new counsel, the court granted the motio for summary judgment dismissing the action made by Travelors without opposition. 3 [* 5] After the Travelors Action was dismissed, plaintiffs brou t the present action against the Tekiel Defendants for legal malpractice based on the dismissal of e Travelors Action. The plaintiffs allege that the Tekiel Defendants were negligent in their and.ling of the Travelors Action based on, inter alia, their failure to take any action on the c e for eighteen months, their entering into a stipulation which provided for a conditional order o preclusion and their failure to provide the discovery requested. They argue that if the action hakt not been dismissed, they would have been successful in their prosecution of the Travelors A tion. On a motion for summary judgment, the movant bears the b den of presenting sufficient evidence to demonstrate the absence of any material issues of fact. ee Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Once the movant establishes a rimafacie right to judgment as a matter oflaw, the burden shifts to the party opposing the motio to "produce evidentiary proof in admissible fonn sufficient to require a trial of material ques ·ons of fact on which he rests his claim." Zuckerman v. City ofNew York, 49 N.Y.2d 557, 56 (1980). However, "mere conclusions, expressions of hope or unsubstantiated allegations or as ertions are insufficient" to defeat summary judgment. Id In order to state a claim for legal malpractice, "the plaintiff m st plead factual allegations which, if proven at trial, would demonstrate that counsel had breach a duty owed to the client, that the breach was the proximate cause of the injuries, and that actua damages were sustained." Dweck Law Firm, LLP v. Mann, 283 A.D.2d 292, 293 (1 51 Dept 2001 Moreover, "the client must plead specific factual allegations establishing that but for couns 's deficient representation, there would have been a more favorable outcome to the underlying m tter. Dweck Law Firm, LLP, 283 A.D.2d at 293. "Unsupported factual allegations, concluso 4 legal argument or [* 6] allegations contradicted by documentation, do not suffice." Id. In the present case, plaintiffs have failed entitled to establi h their right to summary judgment as a matter of law on their legal malpractice claim as th y cannot establish that there would have been a more favorable outcome to the underlying ma er but for the deficient representation of the Tekiel Defendants. The unfavorable outcom in the Travelors Action was the court granting summary judgment dismissing the action based n the failure of the plaintiffs to turn over discovery requested by Travelors in the action. For pl intiffs to be entitled to summary judgment, they would be required ro establish that it was the Tekiel Defendants who were the proximate cause of the court granting summary judgment o Travelors. However, at the time that the Civil Court granted the summary judgment motion to ismiss the complaint based on plaintiffs' failure to comply with the order of preclusion, the Te iel Defendants were no longer representing plaintiffs as their motion to be relieved as coun el, served by order to show cause on plaintiffs, had already been granted. The court had also gr ted a stay giving plaintiffs an opportunity to obtain new counsel to oppose the summary jud nt. Based on the foregoing, there is an issue of fact as to whether it was plaintiffs' failure to obt in new counsel to represent them and oppose the motion after the Tekiel Defendants were reliev d as counsel which was the proximate cause of the court granting summary judgment dismissin the action as opposed to any actions taken by the Tekiel Defendants. There are also disputed issu s of fact as to who was responsible for the failure of plaintiffs to tum over the documents to ravelors in the underlying Travelors Action-whether the failure to tum over the documents wa based on the inaction of the Tekiel Defendants or whether it was based on the refusal of plaintiffi to communicate with the Tekiel Defendants and their refusal to turn over the documents. Bas don the foregoing disputed 5 [* 7] factual issues, plaintiffs are not entitled to summary judgment on eir malpractice claim and the court need not determine whether plaintiffs would ultimately have been successful on their individual no-fault claims if the action had not been dismissed as result of the Travelors' summary judgment motion. The court also declines to exercise its discretion to make any rulings pursuant to CPLR section 3212 (g) to ascertain which facts are or e not in dispute. Based on the foregoing, the motion for relief under CPLR s ction 3212 is denied in its entirety. This constitutes the decision and order of this court. J.S.C. Fl LED DEC 19 1013 NEW YORK_~ coUNTY~urn~ 6

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