Gonzalez v Flushing Hosp. Med. Ctr.

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[*1] Gonzalez v Flushing Hosp. Med. Ctr. 2014 NY Slip Op 51226(U) Decided on August 12, 2014 Civil Court Of The City Of New York, Queens County Buggs, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2014
Civil Court of the City of New York, Queens County

Maira Gonzalez as assignee of GEDDIS ABEL BEY, Plaintiff,


Flushing Hospital Medical Center and BREITNER & HOFFMAN, P.C., Defendants.



Richard Winograd, Esq.

Ginarte O'Dwyer Gonzalez Gallardo & Winograd LLP

255 Broadway

13th Floor

New York, NY 10007-3772

(212) 601-9700


Christopher B. Hitchcock, Esq.

Hitchcock & Cummings, LLP

120 W. 45 Street, Suite 405

New York, NY 10036

(212) 688-3025
Chereé A. Buggs, J.

Recitation, as required by CPLR §2219 (a) of the papers considered in

the review of this Motion:



Notice of Motion and Affidavits Annexed(Vols. I, II) ... ...1 Order to Show Cause and Affidavits Annexed

Answering Affidavits .............................................................. .2

Replying Affidavits....................................................................3


Other(Memoranda of Law) .......................................... 4,5

Defendant law firm Breitner & Hoffman, P.C. moved for summary judgment herein pursuant to Civil Practice Law and Rules (CPLR) 3212 for dismissal of a legal malpractice lawsuit against it. The original plaintiff in the matter was physician Geddis Abel Bey ("Bey"), who assigned his rights in the legal malpractice matter to Maira Gonzalez ("Gonzalez"), who, as an infant with her parents, brought a medical malpractice action against him and Flushing Hospital Center for injuries suffered as a consequence of her delivery.

Upon the papers submitted in support of defendant's motion, and plaintiff's papers in opposition, the Court grants defendant's motion [*2]for summary judgment.


On March 3, 1994, Laura Gonzalez gave birth to plaintiff Gonzalez at Flushing Hospital Medical Center ("FHMC"). Due to hypoxia [FN1] which occurred during labor and delivery, plaintiff Gonzalez suffered severe brain damage as well as extensive mental and physical impairments. In June 1995, Gonzalez, by her mother as natural guardian, and both parents individually, filed a medical malpractice case against FHMC alleging negligence in failing to timely respond to signs of fetal distress or to confirm such fetal distress during Laura Gonzalez' labor, and of failing to perform a timely cesarean section which would have prevented the resulting injuries to plaintiff Gonzalez. In August 1996, Gonzalez filed a second malpractice action, this time against Bey, who was the on-call physician at the time of the delivery, and another physician, Jonathan Cha. Both actions were consolidated for joint trial in July 1997.

In August 1996, FHMC retained defendant law firm Breitner & Hoffman, P.C. ("B & H") to defend the action. B & H represented and filed answers on behalf of all defendants, including Bey. However, in June 1998, FHMC filed for Chapter 11 bankruptcy relief in the United States Bankruptcy Court for the Eastern District of New York. The malpractice actions were subsequently stayed pursuant to §362(a) of the United States Bankruptcy Code.In 2000, the law firm of Garbarini & Scher ("G & S") was appointed to represent the bankruptcy Trustee in the mediation of the medical malpractice claims. In 2002, the Court approved a settlement in Gonzalez's case against FHMC and other defendants for two million dollars ($2,000,000); however, Bey was excluded from this settlement because he was deemed to be an independent contractor. The malpractice action against Bey, therefore, continued.

Bey brought this action against FHMC and B & H in 2005. The action was ultimately discontinued as against FHMC, as was a third-party action B & H brought against G & S. The claims against B & H were that it committed legal malpractice in that the firm failed to protect his interests in the Gonzalez lawsuit, particularly in what Bey claimed was its duty to investigate sources of insurance to protect him against a potentially large exposure, and in failing to advise him to notify Medical Liability Mutual Insurance Company ("MLMIC"), his personal medical malpractice insurance carrier. Bey submitted the claim to MLMIC in February 2004, approximately seven and a half years after Gonzalez brought her action against him; the insurance company denied the claim as untimely.

On September 27, 2006, while being represented by another attorney, Bey executed a $1 million confession of judgment in favor of Gonzalez in a "so ordered" stipulation of settlement in Supreme Court, Queens County; in November of the same year, he assigned his rights in the within malpractice action to Gonzalez. After the assignment, B & H filed a motion for summary judgment in 2007 on the theory that "...Bey is no longer a real party in interest as a result of the settlement with Gonzalez, to wit, he has not suffered any pecuniary damages and, thus, cannot establish that B & H proximately caused him to sustain actual damages" (Gonzalez' Affirmation in Opposition, Exhibit E; Geddis Abel Bey v Flushing Hospital Center, and Breitner & Hoffman, P.C., Sup Ct, Queens County, December 7, 2007, Satterfield, J., index No. 23476/2005). The motion was denied. (Exhibit E, supra at 2-3).

In 2012, by order of the Honorable Martin Ritholz of Supreme Court, Queens County, this matter was transferred to Civil Court, Queens County pursuant to CPLR §325 (d), the section allowing transfer of cases to the lower court based on apparent value of no more than the jurisdictional limit of that lower court.


"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 actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits on the underlying action but for' the attorney's negligence" (Ambase Corporation v Davis Polk Wardwell, 8 NY3d 428, 434 [2007] [internal citations omitted]).

Taking first plaintiff's claim that B & H failed to investigate possible sources of insurance for coverage of his potentially large exposure, and that the firm failed to notify MLMIC, the Court must note that the terms of Bey's liability insurance policy required that he notify the company of any claims or potential claims against him. The text of the MLMIC Physicians & Surgeons Professional Liability Insurance Policy (B & H's Notice of Motion, Exhibit N; Section 9, page 3), in pertinent part, reads as follows:

You must take immediate action if a Claim

is brought against you or if you become aware

of an incident which you believe might lead to

a claim against you in the future. The action you

must take to report a claim is described below...

If you receive notice of a suit or Claim against you,

you must notify the Company in writing as soon

as possible....

Therefore, notwithstanding any duty Gonzalez contends B & H owed to Bey as his attorneys, at the outset, responsibility for notifying the insurance company of any claim or potential claim belonged to Bey, the policyholder. In fact, when Bey finally submitted a claim in 2004, it was [*3]denied for his failure to comply with the policy terms requiring notice to the insurance company of a lawsuit (Gonzalez' Affirmation in Opposition, Exhibit B; Denial letter from MLMIC to Geddis Abel-Bey, M.D., dated May 4, 2004). There is nothing in the language of the policy providing any exception to the notice requirement—not even, as in this case, Bey's belief that he would be represented in all stages of the action by B & H, attorneys retained by FHMC. Bey's duty was not only required by the terms of the policy, but was supported by case law holding that failure to satisfy the timely notice requirement of an insurance policy constitutes valid grounds for denial of a claim. See Security Mut. Ins. Co. of NY v Acker-Fitzsimmons Corp., 31 NY2d 436 (1972); Safer v Government Employees Ins Co., 254 AD2d 344 (2d Dept 1998).[FN2]

To support her argument of legal malpractice, Gonzalez offered the affirmation of attorney Stephen Paul Haber ("Haber"), who opined that B & H's representation of Bey deviated from the standards in the practice of law in that: 1) B & H failed in its obligation to inquire of Bey about his insurance coverage, and to inform any insurance carriers with whom he had coverage about his large financial exposure to liability, and that 2) its representation of both Bey and Cha was a conflict of interest; (Gonzalez' Exhibit E; Affidavit of Stephen Paul Haber).

Before addressing the merits of Haber's affirmation, it must be noted that while the Court accepts that Haber is, as his affirmation states, "an attorney duly licensed to practice in the State of New York" (Gonzalez' Exhibit E, Paragraph 1), his expertise and qualifications to render opinions regarding legal malpractice actions and/or the professional standards for attorneys handling legal matters involving insurance coverage issues for medical malpractice cases is unclear. While Gonzalez' attorney, in his Affirmation in Opposition, speaks to Haber having "over 30 years of extensive experience in representing healthcare providers in the defense of medical malpractice actions," Haber's affirmation itself is silent about his qualifications. He fails to state how long he has practiced, and in what area of law. Movant, in its Reply Memorandum of Law, correctly cites case law requiring that an expert can be deemed qualified to render an opinion if "...he or she is possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion is reliable'" (Lopez v Gem Gravure Co., Inc., 50 AD3d 1102 at 1103 [2d Dept 2008]). Considering this standard, there is insufficient indication that Haber qualifies as an expert for the issues in contention herein.

However, solely for the sake of exploring the merits of Haber's affirmation, the Court will assume that Haber is the experienced attorney Gonzalez' counsel says he is, and not some "newbie" attorney randomly snatched from the halls of a local Appellate Division judicial department after having just been sworn in.

Haber contends that B & H had an "obligation...to place any insurance carriers on notice of the existence of those claims filed against him in a timely manner" (Gonzalez' Exhibit E, paragraph 12), but acknowledges the "obligation does not arise from a specific rule of case law, but rather from an assessment of the client's particular factual circumstances, risks, potential exposure and the legal relationship existing between the parties" (Gonzalez' Exhibit E, paragraph 13). He does not raise any concerns or issues about ethical violations for not meeting this "obligation."

If there was no duty imposed by any "rule of case law" or any ethical requirements, the Court would be hard-pressed to find that there exists an issue of fact for trial about whether B & H committed legal malpractice in not notifying insurance carriers or making inquiries regarding Bey's insurance coverage. In absence of established law or rules, the "standard" for establishing legal malpractice in this area would be, at best, nebulous, and, at worst, dangerously arbitrary. The proverbial goalposts could be moved for every case involving the same issue.

In 2006, the Appellate Division, Second Department ("Second Department") ruled in Shaya B. Pacific, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP [FN3] that a law firm moving for dismissal pursuant to CPLR 3211(a)(1) and (7) of a legal malpractice case failed to support its motion with documentary evidence definitively establishing the scope of its responsibility in representing the plaintiff. In examining whether a law firm—in that case, a firm retained by an insurance carrier—had a duty to ascertain the existence of available excess coverage or to file a timely notice of excess claim, the Court concluded that a finding of legal malpractice is possible, depending on the agreed-upon scope of representation:

In any event, it seems self-evident that the

question whether, in the ordinary case, an

attorney could be found negligent for

failing to investigate insurance coverage

would turn primarily on the scope of the

agreed representation—a question of fact—

and on whether, in light of all relevant

circumstances, the attorney "failed to

exercise the reasonable skill and knowledge

commonly possessed by a member of the

legal profession"... [internal citations


Although Shaya B. Pacific created precedent by holding that a law firm could have a duty to inquire and provide notice about a client's insurance coverage, it was not the existing law when Bey filed his medical malpractice claim against B & H in 2005. As Haber, Gonzalez' own expert witness notes, any claimed duty owed by B & H to Bey on this issue "[did] not arise from a specific rule of law..." Therefore, on this point, the Court herein finds that the Gonzalez' opposing papers fail to demonstrate the existence of an issue for trial.

Further, assuming arguendo, that B & H did have such an obligation to Bey and breached it, Gonzalez has also failed to show that such breach was the proximate cause of Bey's damages. "Proximate cause is established by showing that the plaintiff would have succeeded in the underlying action or would not have incurred damages but for the attorney's negligence" (Soliman v O'Connor, McGuiness, Conte, Doyle & Oleson, 118 AD3d 866 [2d Dept 2014] [internal citations omitted]). While Haber posits that B & H's "failure" was a proximate cause of Bey being faced with a large financial exposure in the medical malpractice case, that argument ignores that Bey himself was responsible for notifying his carrier, and further [*4]disregards FHMC's bankruptcy filing as an intervening cause. B & H was not a participant in the Bankruptcy Court proceedings, and the medical malpractice actions for which it had been retained had been stayed. Moreover, the ultimate Bankruptcy Court settlement of the medical malpractice matter as to all parties except Beyleaving Bey with a large financial exposurewas not a direct or foreseeable consequence of any act or act of omission by B & H. It was in the Bankruptcy Court that Bey was deemed not to be an employee of FHMC, leading to his exclusion from the settlement.[FN4]

Additionally, when he executed the confession of judgment, he was not represented by B & H, but by other counsel. Lastly, even if B & H inquired into additional coverage and timely notified the insurance carrier, there would have been no guarantee that the carrier would not have denied coverage on other grounds, thereby placing Bey in the same position.

The proximate cause, involved as it may

be with many other causes, must be, at the

least, something without which the event

would not happen. The court must ask itself

whether there was a natural and continuous

sequence between cause and effect. Was the

one a substantial factor in producing the

other? Was there a direct connection between

them, without too many intervening causes?

Palsgraf v Long Island R. Co., 248 NY 339, 354 (1928)

In fact, it would appear that the "but for" element in this case was FHMC's bankruptcy filing. But for that event, there would have been every reason to believe Bey would have been defended and indemnified in the Gonzalez malpractice action in the same manner as in a similar lawsuit filed in 1994 in which he was a party (B & H Notice of Motion, Exhibit P; Arias, et al v Flushing Hospital Medical Center, et al. [Sup Ct, Queens County; index no. 16695/94]).

Haber further contends that B & H committed legal malpractice by violating conflict of interest ethical rules in representing two defendant doctors in the medical malpractice with conflicting interests. B & H represented both Bey and Jonathan Cha. While he conclusorily states that such a conflict of interest was a proximate cause of Bey's damages, he fails to establish a "but for" nexus between the alleged conflict of interest and Bey's damages. Consequently, Gonzalez also fails to establish an issue of fact for trial on this point.

Accordingly, not only is Gonzalez' expert affirmation lacking for failure to establish the expert's credentials, but even upon fully considering the merits of his contentions, he fails to demonstrate a factual issue requiring a trial on legal malpractice. There is insufficient showing of a duty owed by B & H to Bey on the issue of insurance coverage, and even assuming the existence of such a duty, no establishment of proximate cause. Haber's contention that B & H violated ethical rules in representing two physicians with conflicting interests is likewise unsupported with an establishment of a "but for" connection to Bey's damages.

Gonzalez also argues that B & H moved for summary judgment in 2007 on substantive grounds and that such motion was denied. However, a reading of both the decision by the Supreme Court, Queens County (Gonzalez' Affirmation in Opposition, Exhibit E; id.) and that of the Second Department, which affirmed the Supreme Court decision (Gonzalez' Affirmation in Opposition, Exhibit F; Geddis Abel Bey v Flushing Hospital Medical Center, 95 AD3d 1152 [2012]), make clear that the main thrust of the motion was B & H's contention that since Bey transferred his rights in the legal malpractice case to Gonzalez, he was no longer a party in interest, and that summary judgment should be granted. Unlike in the motion herein, there was apparently no argument about what B & H's duty to Bey was and whether a breach of any such duty constituted proximate cause of Bey's damages. This Court finds that the previous motion for summary judgment on substantive grounds—and the subsequent trial and appellate court decisions— does not preclude the instant motion.


"To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973 [2d Dept 2009]). Here, B & H has shown that Gonzalez is unable to establish both that B & H "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Ambase at 434) and that Bey "would have succeeded on the underlying action but for' the attorney's negligence." In opposition, Gonzalez has failed to show the existence of any triable issues of facts. "[O]ne opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York 49 NY2d 557, 562 [1980]).

Based on the foregoing, the defendant's motion for summary judgment is granted in its entirety.

The foregoing constitutes the decision and order of the Court.

Dated: August 12, 2014__/s_______________________________________

Hon. Chereé A. Buggs

Judge of the Civil Court of the City of New York

County of Queens

Law firm, under the law existing at that time, did not have duty to inquire into insurance for client doctor or to notify about claim, and even if such duty existed, its breach would not have been proximate cause of physician's damages Footnotes

Footnote 1:Hypoxia is defined as "a deficiency of oxygen reaching the tissues of the body". (Merriam-Webster Online Medical Dictionary [ http://www.merriam-webster.com/medical/hypoxia]

Footnote 2:In 2008, §3420 of the NY Insurance Law was amended to add subsection (a)(4) requiring that an insurer show prejudice before declining coverage for untimely notice. However, the new subsection applies only to policies issued or delivered after January 17, 2009.

Footnote 3:38 AD2d 34 (2d Dept 2006)

Footnote 4:Notwithstanding the Bankruptcy Court's finding that Bey was not an employee of FHMC, the record reflects that he believed and/or represented himself to be one. In the denial letter from MLMIC to Bey dated May 4, 2004 (Gonzalez' Affirmation in Opposition, Exhibit B), the claims examiner wrote, "You have also advised me that you were a salaried employee of Flushing Hospital at the time of treatment of Maira Gonzalez..."