EDJ Realty Inc. v Siegel

Annotate this Case

Download PDF

EDJ Realty Inc. v Siegel 2018 NY Slip Op 34393(U) January 16, 2018 Supreme Court, Westchester County Docket Number: Index No. 67058/2016 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 To commence commence the the statutory statutory time time period period for appeals appeals of right (CPLR (CPLR 5513[a]), 5513[a]), you are advised copy advised to ..serve serve a copy as of of this order, order, with notice notice of of entry, upon all parties. parties. of entry, upon SUPREME YORK SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ______________________________________________________ ---------------x ------------------------------------- ---------------------------x REALTY INC., EDJ REAL TY INC., Plaintiff, Plaintiff, -against-against- DECISION & ORDER DECISION ORDER Index No. 67058/2016 67058/2016 Index Sequence Nos. Nos. 2&3 Sequence 2&3 MARK A. SIEGEL, SIEGEL, ESQ. MARK Defendant. Defendant. -------------------------------------------------------------------x -------------------------------------------------------------------x • WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers New Numbers 37 through 74 were were read read in connection connection with with defendant defendant Mark Mark A. Siegel, Siegel, Esq. ("Siegel") motion for through ("Siegel") motion summary judgment, plaintiff EDJ Realty Realty Inc. ("EDJ") ("EDJ") motion motion for partial partial summary summary judgment, and plaintiff summary judgment. judgment. brought this action action to recover recover damages damages for alleged alleged legal legal malpractice malpractice by Siegel. Siegel. In EDJ brought the prior prior motion motion to dismiss dismiss brought brought by Siegel, Siegel, the court court found found (among things) that that as it (among other other things) prediscovery motion motion to dismiss, dismiss, not a summary summary judgment motion, the the complaint complaint stated was a prediscovery judgment motion, stated a action to recover recover damages damages for legal malpractice malpractice insofar insofar as asserted asserted against Siegel. of action against Siegel. cause of instant motion, motion, Siegel Siegel moves moves pursuant pursuant to CPLR CPLR 3212 that the By the instant 3212 on the grounds grounds that underlying Article Article 78 proceeding proceeding is void, and EDJ's EDJ's time time to serve serve a Notice never Notice of of Appeal Appeal has never underlying alternative, Siegel Siegel is entitled summary judgment because EDJ EDJ would would entitled to summary judgment because started to run; or in the alternative, 1 [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 prevailed on an appeal appeal from the Order Order dismissing dismissing the Article Article 78 proceeding, proceeding, as EDJ EDJ not have prevailed obligated to immediately immediately retain retain another another attorney attorney to file a notice notice of of appeal. appeal. EDJ EDJ brings brings its was obligated motion for partial summary judgment grounds that that the Order Order with with notice notice of of entry entry is motion partial summary judgment on the grounds valid, and EDJ would would have have prevailed prevailed in connection connection with with the Appeal. Appeal. valid, Upon the foregoing foregoing papers, motions are decided decided as follows: follows: Upon papers, the motions settled that that "a "a proponent proponent of of a summary summary judgment motion must must make make a prima prima judgment motion It is well settled facie showing showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to judgment as a matter demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp Hosp.,.. 68 NY2d demonstrate NY2d 320,324 [1986]; [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 320,324 686-687 [2d Dept Dept 2007]; 2007]; see also Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Once Once the 686-687 movant has met this threshold threshold burden, opposing party must present present the existence existence of of triable triable movant burden, the opposing party must of fact (see Zuckerman Zuckerman v New 557, 562 [1980]; [1980]; Khan Khan v Nelson, Nelson, 68 issues of New York, 49 NY2d NY2d 557, AD3d 1062 [2d Dept Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will suffice to defeat defeat a AD3d will not suffice motion for summary summary judgment (Barclays Bank Bank of of New Sokol, 128 AD2d AD2d 492 [2d motion judgment (Barclays New York, N.A. N.A. v Sokol, Dept 1987]). A party opposing a motion motion for summary summary judgment of Dept party opposing judgment may do so on the basis basis of deposition testimony testimony as well as other other admissible admissible forms of of evidence, evidence, including including an expert's expert's deposition affidavit, and eyewitness eyewitness testimony testimony (Marconi (Marconi v Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). In affidavit, deciding a motion motion for summary summary judgment, court is required required to view view the evidence evidence presented presented deciding judgment, the court "in the light most most favorable favorable to the party opposing opposing the motion motion and to draw draw every every reasonable reasonable inference from the pleadings pleadings and the proof submitted by the parties parties in favor favor of of the opponent opponent to inference proof submitted motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009]; 2009]; see Nicklas Tedlen Realty Realty the motion" Nicklas v Tedlen AD2d 385, 385,386 Dept 2003]). 2003]). The court court must must accept accept as true the evidence evidence Corp., 305 AD2d 386 [2d Dept presented by the nonmoving nonmoving party party and must must deny the motion motion if if there there is "even "even (arguably (arguably any presented 2 [* 2] 2 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 doubt as to the existence existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); 2005]); doubt Baker v Briarcliff Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661 652,661-662 Dept 1994]). 1994]). Summary Summary judgment -662 [2d Dept judgment is Baker drastic remedy remedy and should should not be granted granted where where there is any doubt doubt as to existence existence of of a triable triable a drastic NY2d 320,324). 320,324). issue (68 NY2d To state a cause cause of of action action to recover recover damages damages for legal malpractice, malpractice, a plaintiff must plaintiff must that the attorney attorney failed to exercise exercise the ordinary ordinary reasonable reasonable skill skill and knowledge knowledge allege: (1) that commonly possessed possessed by a member of the legal profession; that the attorney's attorney's breach of profession; and (2) that breach of commonly member of proximately caused caused the plaintiff plaintiff actual actual and ascertainable ascertainable damages' damages' (Siwiec (Siwiec v Rawlins, Rawlins, the duty proximately 103 AD3d AD3d 703, 704 [2d Dept Dept 2013]). 2013]). "To "To survive dismissal, the complaint complaint must must show show that, that, but but survive dismissal, counsel's alleged alleged malpractice, malpractice, the plaintiff plaintiff would would not have have sustained actual for counsel's sustained some some actual ascertainable damages" damages" (Simmons (Simmons v Edelstein, Edelstein, 32 AD3d AD3d 464,466 464, 466 [2d Dept Dept 2006]). 2006]). Mere Mere ascertainable speculation about about a loss resulting resulting from an attorney's attorney's alleged alleged omission omission is insufficient insufficient to sustain sustain a speculation prima facie case case of oflegal malpractice (Giambrone (Giambrone v Bank Bank of of NY, A.D.2d 786, 787 [2d prima legal malpractice NY, 253 A.D.2d Dept 1998) 1998]).). Rather, Rather, plaintiff plaintiff must must prove prove that it was the attorney's attorney's negligence negligence which which Dept proximately caused the actual actual and ascertainable ascertainable damages that resulted resulted (Simmons (Simmons v Edelstein, Edelstein, proximately caused damages that AD3d 464 [2d Dept Dept 2006]). 2006]). In other other words, words, "to establish establish causation, causation, a plaintiff plaintiff must must show show 32 AD3d would have have prevailed prevailed in the underlying underlying action action or would would not have have incurred incurred any that he or she would damages, but for the lawyer's lawyer's negligence" negligence" (Bells (Bells v Foster, Foster, 83 AD3d AD3d 876, 877 [2d Dept Dept 2011]). 2011]). damages, Here, the underlying underlying action action arose arose from a New York State House and Community New York State House and Community Here, Renewal ("DHCR") ("DHCR") complaint complaint by a tenant tenant Ben Alfano, Alfano, at a New York City City apartment apartment building building New York Renewal owned by EDJ, accusing accusing EDJ EDJ of of wrongfully wrongfully denying denying Alfano Alfano the use use of ofaa rooftop rooftop patio patio adjacent adjacent owned apartment. On May 3, 2012, DHCR's Rent Rent Administrator Administrator found found that that the removal removal of of to his apartment. 2012, DHCR's tenant's private located on the roof roof of of the garage garage constituted constituted a decrease decrease in tenant's private fenced fenced in yard yard located 3 [* 3] 3 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 service, service, and EDJ was directed directed to restore restore the service service of of the fenced fenced in private private patio patio ("DHCR ("DHCR Order"). Order"). Attorney Attorney Zadrima Zadrima then then filed (on EDJ's EDJ's behalf), behalf), a petition petition for administrative administrative review review of of the DHCR's DHCR's Order, Order, which which was denied. denied. After After the DHCR DHCR Order Order denying denying Review Review was issued issued and bring an Article the DHCR DHCR administrative administrative proceedings proceedings were were concluded, concluded, EDJ EDJ retained retained Siegel Siegel to bring Article Proceeding against against the DHCR DHCR to annul and reverse reverse the DHCR DHCR Determination Determination reducing reducing rent 78 Proceeding and directing November 12, 2013 , the Bronx directing EDJ EDJ to restore restore a patio. patio. On November 12,2013, Bronx Supreme Supreme Court Court dismissed dismissed EDJ's EDJ's declaratory declaratory action action (the one that that Siegel Siegel drafted), drafted), substantially substantially on the grounds grounds that "it cannot cannot be said said that that DHCR's DHCR's determination determination that tenant's tenant's [Alfano's) [Alfano's) long-standing long-standing patio patio space was a required required service service was irrational. irrational. Nor established that that the determination determination space Nor has EDJ established arbitrary or capricious" capricious" (see, Siegel's Siegel's Ex HJ. H). was arbitrary Siegel email on Siegel provided provided EDJ with with a copy copy of of the November November 2013 Decision Decision by email December 12, 12,2013. However, Siegel Siegel moved moved his business office, and never never received received a true December 2013. However, business office, of that that decision decision with with notice notice of of entry that DHCR' DHCR'ss General General Counsel Counsel served served on November November copy of 21,2013. 21 , 2013. Almost two years years later later in August August 2015 2015,, EDJ's EDJ's attorney attorney in this this action, action, Richard Richard Monaco Monaco Almost filed a Notice of Appeal Appeal from the November November 2013 Decision Decision and Order. Order. Notice of DHCR thereafter thereafter moved moved to dismiss dismiss the appeal appeal on the ground ground that that the August August 2015 DHCR Notice of Appeal Appeal was untimely, untimely, and EDJ cross-moved cross-moved for an Order Order determining determining the November November Notice of Decision and Order Order to be a decision decision and not an order. order. The First First Department Department ruled ruled in 2013 Decision DHCR'ss favor, favor, and granted granted DHCR's DHCR's motion motion ,dismissed ,dismissed the appeal, appeal, and denied denied EDJ's EDJ's crosscrossDHCR' motion. motion. 4 [* 4] 4 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 Siegel argues argues that there there is no factual factual or legal basis basis to find that that an appeal appeal from the Siegel November 2013 Decision Decision and Order would have been been successful. Moreover, Siegel Siegel contends contends November Order would successful. Moreover, breach any duties duties owed owed to EDJ under under the terms terms of of his retainer retainer agreement agreement with with that he did not breach Through his affidavit, affidavit, Siegel Siegel affirms affirms that he did not represent represent EDJ EDJ in the DHCR DHCR EDJ. Through administrative proceedings proceedings prior prior to the Article Article 78 proceeding, proceeding, and and had had no role role in determining determining administrative strategic decisions decisions made made by EDJ, EDJ, in those those proceedings. the proof proof submitted, submitted, or the strategic proceedings. support of of its motion motion for partial partial summary EDJ offers offers an affidavit affidavit from In support summary judgment, judgment, EDJ Douglas A. Emanuel, Emanuel, Esq. Esq.,, who affirms affirms that he is aware aware of of good good and and accepted accepted practice practice for Douglas attorneys in the Supreme Supreme Courts Courts of of the State ofNew of New York, York, and opines that that Siegel Siegel was under under a and opines attorneys notify his opposing opposing counsel counsel that that he had changed changed his office address. Siegel Siegel relocated relocated his duty to notify office address. office at a time time when when there there was an outstanding outstanding decision decision he was awaiting awaiting in connection connection with with the office underlying Article Article 78 case, case, and that that it is his understanding understanding that that Siegel Siegel did not notify notify his underlying ~dversary of of his change change of of address, address, which which is not proper proper or accepted accepted practice Supreme ~dversary practice in the Supreme points out out that that Siegel Siegel actually actually did obtain obtain a copy copy of of the Decision Decision and and Order Order Court. He also points dated November November 12, 12,2013, about December December 12, 12,2013, which should should have have put put Siegel Siegel on an dated 2013, on or about 2013, which even more more heightened heightened alert alert that a Notice Notice of of Entry Entry would would soon served upon upon him him (if (ifitit had not soon be served even already been been served) served) because because his adversary adversary was the prevailing prevailing party. already party. Emmanuel concludes concludes that, as a result result of of Siegel not notifying notifying his adversary adversary (DHCR) of Emmanuel (DHCR) of change of of address, address, he did not receive receive the Notice of Entry Entry of of the Decision Decision and Order, Order, and he his change Notice of provide the Notice of Entry Entry to EDJ, EDJ, giving giving EDJ insufficient insufficient time time to serve serve and file a did not provide Notice of Notice of Appeal. Appeal. But But for the negligence negligence of of Siegel, Siegel, EDJ would would have have been been able able to pursue pursue an Notice of Appeal from the order. order. It is his professional professional opinion opinion to a reasonable reasonable degree of certainty certainty in the Appeal degree of 5 [* 5] 5 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 of civil litigation litigation and appellate appellate practice practice that defendant defendant committed committed legal legal malpractice malpractice as set fields of above and that that said malpractice malpractice proximately proximately caused caused plaintiff plaintiff to sustain monetary loss. loss. forth above sustain monetary Generally, "if "if the alleged alleged malpractice malpractice is based attorney's failure failure to perfect perfect an based on the attorney's Generally, appeal from an order order dismissing dismissing a cause cause of of action action in an underlying action, the the plaintiff plaintiff must must underlying action, appeal show that, had the attorney attorney perfected perfected that appeal, appeal, the appeal appeal would would have have been been successful, successful, the show cause of of action action would would have been reinstated, and the plaintiff plaintiff would would have have prevailed prevailed on that that been reinstated, cause cause of of action action in the underlying underlying action" action" (McCluskey (McCluskey v Gabor Gabor & Gabor, Gabor, 61 AD3d AD3d 646, 646, 648, 648, cause 2009]). [2d Dept 2009]). reviewing an administrative administrative agency agency determination, determination, a court court must must ascertain ascertain whether whether In reviewing rational basis basis for the action action in question question or whether arbitrary and and capricious capricious there is a rational whether it is arbitrary (Gilman vNew v New York York State State Div. Div. ofHous. ofHous. & Cmty. Cmty. Renewal, Renewal, 99 NY2d [2002]). EDJ NY2d 144, 149 [2002]). (Gilman argues that that it would would have have prevailed prevailed on an appeal appeal of of the November November 2013 2013 Decision Decision and order order argues under Rent Stabilization Stabilization Code Code because because tenant tenant Alfano Alfano's' s recreational recreational use of of the patio patio was not under the Rent specifically set forth in the lease submitted submitted in the DHCR DHCR administrative administrative proceedings. proceedings. From From this specifically record, plaintiffEDJ failed to demonstrate demonstrate that that it would would have have prevailed prevailed on an appeal appeal from record, plaintiffEDJ has failed Decision and Order. Notably, Notably, DHCR DHCR has broad broad discretion discretion in ascertaining ascertaining the November November 2013 Decision whether a required required service service is not being properly provided, customarily given given deference deference whether being properly provided, and customarily (Roberts v Tishrnan Tishman Speyer Speyer Properties, Properties, L.P., L.P., 13 13 NY3d NY3d 270, 270, 283 [2009] [2009];; Croes Croes Nest Realty, LP Nest Realty, (Roberts York State Div. of of Hous. Hous. & Cmty. Renewal, Renewal, 92 AD3d AD3d 402, 402, 403 [1 [151st Dept Dept 2012]). 2012]). v New New York Accordingly, Siegel Siegel demonstrated demonstrated his entitlement entitlement to judgment matter oflaw of law by Accordingly, judgment as a matter establishing, prima facie, that that his conduct conduct was not a proximate proximate cause cause of of EDJ's EDJ's alleged alleged establishing, prima facie, damages, and EDJ failed failed to raise raise a triable triable issue of of fact. Similarly, Similarly, EDJ EDJ failed failed to demonstrate demonstrate a damages, prima facie case, case, and its motion motion is denied denied as academic. academic. prima 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 01/17/2019 09:04 AM NYSCEF DOC. NO. 75 INDEX NO. 67058/2016 RECEIVED NYSCEF: 01/16/2019 All matters matters not herein herein decided decided are denied. denied. This This constitutes constitutes the Decision Decision and and Order Order of of the court. NOW THEREFORE, NOW THEREFORE, it is hereby hereby ORDERED, judgment (Seq ORDERED, that that defendant defendant Siegel Siegel's' s motion motion for summary summary judgment (Seq 2) is granted, granted, plaintiff EDJ's ED]' s complaint complaint is dismissed; dismissed; and it is further further and plaintiff ORDERED, that that plaintiffEDJ's motion for partial partial summary summary judgment (Seq 3) is ORDERED, plaintiff EDJ's motion judgment (Seq denied. denied. Clerk shall shall enter enter judgment accordance herewith. herewith. The Clerk judgment in accordance January 16, 2018 2018 Dated: January White Plains, Plains, New New York York White To: All Parties Parties by NYSCEF NYSCEF 7 [* 7] 7 of 7

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.