Feldman v Finkelstein & Partners, LLP

[*1] Feldman v Finkelstein & Partners, LLP 2013 NY Slip Op 50696(U) Decided on May 6, 2013 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2013
Supreme Court, Dutchess County

Andrew Feldman and Deborah Feldman, Plaintiffs,

against

Finkelstein & Partners, LLP, and GEORGE M. LEVY, Defendants.



6284/2008



ANDREW LAVOOT BLUESTONE, ESQ.

Attorney for Plaintiff

233 Broadway, 27th Floor

New York, New York 10279

JOSHUA SANDBERG, ESQ.

FURMAN KORNFELD & BRENNAN, LLP

Attorneys for Defendants

61 Broadway, 26th Floor

New York, New York 10006

James D. Pagones, J.

The following papers numbered 1 to 47 were read on defendants' motion (Motion Sequence No.2) and plaintiffs' cross motion (Motion Sequence #3) pursuant to CPLR 3212 for summary judgment:

Notice of Motion, Affirmation in Support, Exhs. AA-EE1-7

Levy Affirmation, Exhs. A-M8-21

Paul Affirmation, Exh. 122-23

Defendants' Memorandum of Law in Support24

Notice of Cross Motion, Affirmation in Support, Exhs. A-G[*2]25-33

Plaintiffs' Affirmation in Opposition, Exhs. A-B34-36

Plaintiffs' Memorandum of Law37

Defendants' Affirmation in Opposition and Reply38

Affidavits of Service39-47

Upon the foregoing papers and all prior papers and proceedings in this action, the motions are consolidated for purposes of decision and are decided as follows:

This legal malpractice action arises from an underlying personal injury action, Andrew Feldman and Deborah Feldman v. New York State Bridge Auth. (Index No. 3956/03 [Sup Ct Ulster Co]), in which Andrew Feldman alleged that the mechanical arm of a tollgate at the eastern terminus of the Newburgh Beacon Bridge, operated by the New York State Bridge Authority (hereinafter "NYSBA"), descended on Mr. Feldman as he rode a motorcycle through the toll plaza on June 28, 2003. Mr. Feldman and his wife, Deborah Feldman, suing derivatively, timely commenced the underlying action against NYSBA for Mr. Feldman's catastrophic and permanent neurological injuries allegedly arising from the incident. After a jury trial of the underlying action in September 2007 before this Court (Work, J.) and with a pending NYSBA motion to dismiss, the parties settled for $500,000. During the parties' allocution of settlement on the record, plaintiffs narrated their ostensible satisfaction with their representation, but the Court stated, based on its observation of Mr. Feldman and plaintiffs' Bill of Particulars describing his injuries, that the settlement did not appear to "make him whole."

By amended verified complaint dated June 10, 2009, plaintiffs allege that their attorneys in the underlying action, defendants Finkelstein & Partners, LLP, and George M. Levy, Esq., committed legal malpractice so as to force plaintiffs to settle for substantially less than the value of plaintiffs' injuries. Plaintiffs allege that defendants negligently failed to set forth in the Notice of Claim and Bill of Particulars a theory of causation that Mr. Feldman's accident arose due to the negligence of a NYSBA tollgate operator, Carol Hajdinak, and instead set forth primarily a theory of mechanical defect that, plaintiffs assert, limited the evidence that plaintiffs could adduce at trial. Plaintiffs also allege that defendants negligently failed to obtain the trial testimony of an engineering expert and a witness to the accident, Mr. Eddie Feldon, whom plaintiffs assert would have testified so as to strengthen their direct case. Plaintiffs allege that the foregoing failures separately, and both together, breached defendants' duty of professional care to plaintiffs, but for which breach plaintiffs' evidence would have been far more conducive to their cause of action. Plaintiffs conclude, and assert in the instant action, that plaintiffs therefore would have recovered far in excess of the $500,000 for which they settled.

After timely answering plaintiffs' amended complaint for legal malpractice, defendants brought the instant CPLR 3212 motion to dismiss. Defendants assert that plaintiffs, by settling the underlying action and allocuting upon settlement their satisfaction with defendants' representation, waived their right to sue defendants for legal malpractice. Defendants plead that [*3]the Notice of Claim and Bill of Particulars in the underlying action were legally sufficient to encompass both tollgate operator error and tollgate defect theories of NYSBA liability, and that defendants exercised reasonable professional judgment in making the strategic decision not to call the two witnesses at trial whose absence, plaintiffs aver, weakened their case. Plaintiffs oppose defendants' motion and cross moved pursuant to CPLR 3212 for partial summary judgment as to liability, asserting that defendants' Notice of Claim and Bill of Particulars were facially deficient and that defendants' failure to call these two witnesses constituted per se legal malpractice.

As with a CPLR 3211 summary judgment motion, this Court must deny a CPLR 3212 summary judgment motion to dismiss a complaint if from its four corners "factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 West 323 Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). To that end, this Court must liberally construe the complaint and accept as true all facts alleged in it and any submissions in opposition to the dismissal motion (see Jennifer Realty, 98 NY2d at 152; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87 [1994]). This Court also must accord plaintiffs' complaint and pleadings in opposition to the dismissal motion "the benefit of every possible favorable inference" (Jennifer Realty, 98 NY2d at 152, citing Sokoloff, 96 NY2d at 414). In like fashion, a movant for summary judgment under CPLR 3212 — whether defendants in moving for dismissal or plaintiffs in moving for summary judgment as to liability — must show that there is no disputed issue of material fact to be tried and no reasonable view of the facts to vindicate the motion's opponent as a matter of law (see e.g. White House Manor, Ltd. v Benjamin, 11 NY3d 393 [2008]; Star City Sportswear, Inc. v Yasuda Fire & Marine Ins. Co. of America, 2 NY3d 789 [2004]).

In the context of this CPLR 3212 motion to dismiss a legal malpractice action, defendants must show — subject to the presumptions above — that plaintiffs' pleadings failed to establish minimum allegations to sustain their causes of action. To recover damages for legal malpractice, plaintiffs must plead and prove "(1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been [more] successful in the underlying action had the attorney exercised due diligence" (Iannone v Gramer, 256 AD2d 443, 444 [2d Dept 1998]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer,8 NY3d 438 [2009]; Blank v Harry Katz, P.C., 3 AD3d 512, 513 [2d Dept 2004]).

Contrary to defendants' assertion, plaintiffs did not waive their right to bring the instant malpractice case merely by settling the underlying action and allocuting their ostensible satisfaction with counsel's representation therein. "A claim for legal malpractice is viable, despite settlement of the underlying action, if [the plaintiff] alleged that settlement of the action was effectively compelled by the mistakes of counsel" (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1082-1083 [2d Dept 2005], lv denied 6 NY3d 701 [2005], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [2d Dept 1990]; see Rau v Borenkoff, 262 AD2d 388, 389 [2d Dept 1999]). Plaintiffs expressly alleged in their amended complaint herein that they had "agreed to the settlement offer and were effectively compelled to [*4]settle the matter in order to avoid the risk of the Court's granting of the [NYSBA's] motion to dismiss and, in the event the Court denied the motion to dismiss, to avoid the jury verdict which would be based on and limited to the evidence the defendants presented" (Pls. Amended Compl., at ¶ 22). Plaintiffs' amended complaint further alleges that the evidence before the Court at trial of the underlying action was substantially limited by the Notice of Claim and Bill of Particulars that defendants filed on plaintiffs' behalf, and by defendants' failures to obtain the trial testimony of Mr. Feldon and of an engineering expert concerning the operation of the subject tollbooth (see id., at ¶¶ 24-25).

According the presumptions that a CPLR 3212 dismissal motion requires, this Court must conclude that plaintiffs' pleadings are sufficient to overcome a waiver defense arising from settlement of the underlying action (see Tortura, 21 AD3d at 1083, lv denied 6 NY3d 701). Accordingly, so much of defendants' CPLR 3212 dismissal motion as it arises from the fact of such settlement and the allocutions in its support must be denied.

Defendants also assert that plaintiffs' cross motion for summary judgment, dated February 20, 2013, was untimely. CPLR 3212(a) requires that, absent judicial consent granted for good cause shown, a motion for summary judgment must be made within 120 days of the filing of the Note of Issue. In the case at bar, the Note of Issue was filed on September 14, 2012, and therefore defendants are correct that plaintiffs cross moved 37 days after the ostensible 120-day deadline. However, "[a] cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion" (Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280 [1st Dept 2006]; see Fahrenholz v Security Mut. Ins. Co., 32 AD3d 1326 [4th Dept 2006]; cf. Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496 [2d Dept 2005]). Here, as defendants moved on January 7, 2013, to dismiss the very claims on which plaintiffs' "mirror-image" cross motion now seeks summary judgment, plaintiffs' cross motion of February 20, 2013, is properly before this Court and defendants' procedural opposition is without merit (Alonzo v Safe Harbors of the Hudson Housing Development Fund Co., Inc., 104 AD3d 446, 961 NYS2d 91, 94 [1st Dept, Mar. 12, 2013]).

Defendants next assert that as a matter of law, their failure to call the two witnesses at trial did not constitute legal malpractice. As a general proposition, the "selection of one among several reasonable courses of action does not constitute [legal] malpractice" (Diamond v Kazmierczuk & McGrath, 15 AD3d 526, 217 [2d Dept 2005]; see Rosner v Paley, 65 NY2d 736 [1985]). This standard shields against potential malpractice liability an attorney's determination not to call a trial witness, if such determination manifests a reasonable strategic decision under the totality of the circumstances (see e.g. L.I.C. Commercial Corp. v Rosenthal, 202 AD2d 645 [2d Dept 1994]; Holmberg, Galbraith, Holmberg, Orkin & Bennett v Koury, 176 AD2d 1045 [3d Dept 1991]). Defendants assert that Mr. Feldon's criminal record rendered it a reasonable strategic decision to keep him off the witness stand and, instead, defendants read into the trial record his deposition testimony regarding causation of the accident. Defendants argue that the reasonableness of their strategic choice is buttressed by Mr. Feldon's deposition testimony about how the tollgate came into contact with Mr. Feldman body: while Mr. Feldon's deposition [*5]testimony had asserted that the tollgate descended onto Mr. Feldman's head, Mr. Feldon's statement to NYSBA on the day of the accident reported that the tollgate arm's point of contact was Mr. Feldman's chest — potentially suggesting that Mr. Feldman drove into the tollgate and not that the tollgate descended onto him. Given both Mr. Feldon's criminal record potentially bearing on credibility and the factual distinction between Mr. Feldon's deposition testimony and his day-of-accident statement, defendants argue that they made a tactical observation that Mr. Feldon's live testimony might be particularly susceptible to impeachment. Plaintiffs, for their part, offer this Court no factual basis to suggest that defendants' strategic decision not to call Mr. Feldon as a witness might have been unreasonable so as to constitute malpractice. Plaintiffs do not dispute the foregoing circumstances and do not substantially demonstrate how defendants' strategic determination was unreasonable in light of those circumstances.

Similarly, defendants assert that the relevance of an engineer's trial testimony would have gone primarily to the narrative of accident causation to which only Mr. Feldon would have testified on the witness stand, subject to substantial risk of impeachment. Against the backdrop of defendants' assertion that the engineer's testimony therefore would not have been helpful to plaintiffs' cause, plaintiffs offer no triable issue of material fact to dispute the reasonableness of defendants' decision not to call the engineering witness. Accordingly, so much of plaintiffs' motion for summary judgment as is predicated on defendants' failure to call Mr. Feldon or an engineering expert as a trial witness must be denied (see e.g. L.I.C. Commercial Corp., 202 AD2d 645; Holmberg, Galbraith, Holmberg, Orkin & Bennett, 176 AD2d at 1045).

Plaintiffs' malpractice claim, however, turns primarily on defendants' alleged negligence with regard to the Notice of Claim and Bill of Particulars. As the parties appear to concede, the factual essence of this case turns on whether defendants' Notice of Claim and Bill of Particulars negligently failed to lay sufficient predicate for each theory of liability for which evidence might have been adduced at trial; and whether there is a triable issue of material fact as to whether any negligent failure by defendants proximately caused plaintiffs to be forced into settling the underlying action for an amount that, in the Court's words at the time, did not make plaintiffs whole for the resulting injuries.

A claim for personal injuries brought against NYSBA requires the filing of a timely and sufficient Notice of Claim as a condition precedent to maintaining suit (see generally General Municipal Law § 50-e; Public Authorities Law § 540). This Notice of Claim must sufficiently identify the claimant, state the nature of the claim and describe the time when, the place where, and the manner in which the claim arose (see e.g. General Municipal Law § 50-e[1][a]; Crew v Town of Beekman, __ AD3d __, 2013 WL 1442341 [2d Dept, Apr. 13, 2013]; see also Brown v City of New York, 95 NY2d 389, 393 [2000]). The test of sufficiency of a Notice of Claim is "merely whether it includes information sufficient to enable the [public entity] to investigate" (Brown, at 393, quoting O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]). This minimal standard reflects the Notice of Claim's purpose to allow the public defendant — here, NYSBA — to "assess the merits of the claim while the information is still readily available" (DeLeonibus, at 698-699, following O'Brien, 54 NY2d at 359). By design, this standard is not stringent: "[t]he Legislature did not intend that the claimant have the additional burden of pleading causes of action and legal theories, proper for the pleadings, in the notice of claim, which must be filed [*6]within 90 days of the occurrence. [This requirement] was not meant as a sword to cut down honest claims, but merely as a shield to protect [public entities] against spurious ones" (DeLeonibus v Scognamillo, 183 AD2d 697, 698 [2d Dept 1992]; see Schwartz v City of New York, 250 NY 332 [1929]). In service of these objectives, "[w]hile a claimant need not state a precise cause of action in haec verba in a notice of claim' (DeLeonibus v Scognamillo, 183 AD2d 697, 698 [2d Dept 1992]), a party may not add a new theory of liability which was not included in the [N]otice of [C]laim'" (Crew, at *2; quoting Semprini v Vill. of Southampton, 48 AD3d 543 [2d Dept 2008]; see Purdy v City of New York, 193 NY 521 [1908] [Notice of Claim statute and its antecedents do not require the contents of a Notice of Claim "to be stated with literal nicety or exactness"]).

Against this backdrop, it is undisputed that defendants filed a Notice of Claim with NYSBA timely and sufficiently stating the time and place of Mr. Feldman's accident. As to the manner in which the claim arose, the Notice of Claim states:

"The manner in which the claim arose was that the claimant, ANDREW FELDMAN, while operating his motorcycle motor vehicle through Lane 1 of the aforesaid tollbooth, was caused to sustain serious and personal injuries when the gate of the aforesaid tollbooth at Lane 1 first lifted to allow claimant through the booth but then came into contact with the claimant herein, causing him to be knocked to the ground, due to the negligence, wantonness, recklessness and carelessness of the respondent, THE NEW YORK STATE BRIDGE AUTHORITY, its agents, servants and/or employees in, among other things, as follows: in allowing, causing and/or permitting the aforesaid gate to be, become and/or remain in a state of disrepair and in a hazardous and dangerous condition in that the respondent, its agents, servants and/or employees knew or should have known that said gate was in an unsafe, dangerous and hazardous condition and failed to take those steps necessary to correct same; in allowing said tollbooth lane to be used when it was known that the gate of same could malfunction; in causing or permitting the gate to malfunction so that it would lift and then fall back down while the vehicle was proceeding through the tollbooth, thereby striking the vehicle; in failing to promptly repair this condition even though respondent received complaints and even though maintenance and repair was requested; in failing to divert vehicles to another booth until the gate of this lane was repaired; in failing to provide a safe and proper entrance and/or exit way to the aforesaid tollbooth; in failing to properly maintain, check and/or inspect said gate; in failing to properly repair and/or provide for the proper repair of the gate; in failing to warn persons in the area of the gate of the existing conditions; in creating a trap; in allowing, causing and or permitting the gate to be in such a condition so as to allow and/or cause it to malfunction; in allowing, causing and/or permitting the gate to be used in a defective and unsafe condition; in allowing, causing and/or permitting the gate to remain in use without properly repairing same and without providing adequate and proper warnings; and the respondent, its agents, servants and/or employees were in other ways negligent, reckless and careless"

(Notice of Claim, Pl. Mot. for Summary Judgment, Exh. D; see also Bill of Particulars, Pl. Mot. for Summary Judgment, Exh. F).

While perhaps inelegant for purposes of explicating an "operator negligence" theory of [*7]recovery, the Notice of Claim specified that among potential causes of injury was that "THE NEW YORK STATE BRIDGE AUTHORITY, its agents, servants and/or employees in, among other things, as follows: * * * allowing, causing and/or permitting the gate to be used in a defective and unsafe condition" (Notice of Claim [emphasis added]). While one reading of this phrase might suggest an allegation that NYSBA allowed a defective gate to be used despite its defect, another reasonably suggests an allegation that NYSBA allowed a functioning tollgate to be used in a defective and unsafe manner — the very essence of tollgate operator negligence that plaintiffs assert that defendants negligently failed to allege. As a claimant need not state "a precise cause of action in haec verba in a notice of claim" (DeLeonibus, 183 AD2d at 698), this language was minimally sufficient to put NYSBA on notice as to this potential theory of recovery.

Even granting plaintiffs' restrictive construction of the Notice of Claim and corresponding language in the Bill of Particulars, however, plaintiffs did not and cannot show that the Notice of Claim and Bill of Particulars were legally insufficient. It is well-settled that a "Notice of Claim does not have to set forth a precise legal theory of recovery" (Miller v City of New York, 89 AD3d 612, 612 [1st Dept 2011]). To be sure, plaintiffs are correct that in Cippitelli v Town of Niskayuna (203 AD2d 632 [2d Dept 1994]), the Appellate Division disallowed so much of a Supplemental Bill of Particulars as sought recovery for an added theory of liability, alleged intention infliction of emotional distress, after the statutory Notice of Claim had sought recovery only for property damage. The Cippitelli court concluded that under those circumstances, the public defendant lacked statutory notice of the emotional-distress claim and thus the plaintiff could not proceed on it in derogation of the restrictive Notice of Claim. That conclusion correctly inhered in the different nature of the added claim asserted — emotional damage versus property damage — for which statute gave the public defendant a right and duty to investigate while facts and evidence were fresh. The proper investigation of an emotional distress claim, moreover, is fundamentally different from that of a property damage claim, potentially implicating different kinds of evidence of which the public defendant has a statutory right to reasonable notice in the Notice of Claim. Here, by contrast, defendants provided NYSBA with statutory notice of the time, place and general manner of the injury and its general cause, as well as the basis of liability (in this case, battery arising from the tollgate striking Mr. Feldman and the specific physical injuries directly attributable thereto). Unlike in Cippitelli, no new cause of action was sought to be added, and thus plaintiffs failed to show and cannot show a resulting restraint on plaintiffs' proof in the underlying action.

Likewise in Browne v City of New York (67 AD3d 620 [2d Dept 2009]), even a Notice of Claim that did not mention "negligence" at all as a theory of liability was held to sufficiently apprise the defendants that the plaintiffs would seek a finding of liability based on negligence. If so, then a fortiori the instant Notice of Claim — replete with express references to negligence, the instrumentality that struck Mr. Feldman at the tollgate, and nearly every conceivable variation on those themes — was legally sufficient to alert NYSBA as to the time, place and manner of plaintiffs' injuries.

Plaintiffs offer the contrary view of an affidavit from attorney Ephrem Werteneil, who cursorily avers that defendants violated applicable standards of professional care for legal [*8]representation by "fail[ing] to allege in their [N]otice of [C]laim and [B]ill of [P]articulars that the toll booth operator was negligent." Assuming without deciding that plaintiffs properly established Mr. Werteneil as an expert competent to render such an opinion, however, Mr. Werteneil's statement offers not one scintilla of factual or legal support for this conclusion. Accordingly, Mr. Werteineil's statement lacks probative value (see Romano v Stanley, 90 NY2d 444 [1997]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-534 [1991]) and raises no triable issue of material fact — especially in light of the above standards governing attorney performance and the sufficiency of Notice of Claim and Bill of Particulars. Inasmuch as plaintiffs offer no other competent and probative evidence in support of their summary judgment motion, that motion must be denied.

Even had plaintiffs adduced sufficient competent evidence in support of their summary judgment motion, plaintiffs failed to show that plaintiffs' result in the underlying action would have been different but for defendants' alleged omissions. Plaintiffs fail to raise a triable issue of material fact tending to show, for instance, that the alleged defect in the Notice of Claim and Bill of Particulars actually precluded evidence of tollgate operator error that existed, was admissible and was of such character as to change the result. An unsupported speculation about what might have happened upon conclusion of trial or in settlement negotiations based on a different set of defendant lawyer actions in representing the client, or a different set of facts altogether, fails to establish that a defendant lawyer's allegedly negligent acts or omissions proximately caused the client's loss (see e.g. Brooks v Lewin, 21 AD3d 731 [1st Dept 2005]). Accordingly, even though Tortura invites a plaintiff to recover for legal malpractice after settling an underlying action in a posture weakened by the attorney's negligence, the instant plaintiffs failed to suggest much less establish a specific factual basis for this Court to conclude that their settlement position would have been better but for defendants' alleged omissions. Accordingly, plaintiffs failed to carry their burden on their summary judgment motion, which therefore must be denied on that separate basis as well.

Defendants, however, have demonstrated as a matter of law that they did not commit legal malpractice in the underlying action. There being no triable issue of material fact relevant to unsettle defendants' demonstration that the Notice of Claim and Bill of Particulars were legally sufficient, and that the determination not to call certain witnesses manifested reasonable professional judgment under the circumstances, defendants are entitled to judgment pursuant to CPLR 3212. Accordingly, it is hereby

ORDERED that plaintiffs' cross-motion for summary judgment is denied; and it is further

ORDERED that defendants' motion pursuant to CPLR 3212 for summary judgment is granted and plaintiffs' complaint is dismissed.

The foregoing constitutes the Decision and Order of this Court.

Dated:Poughkeepsie, New York [*9]

May 6, 2013

ENTER

_____________________________

HON. JAMES D. PAGONES, AJSC