Ackerman v Nathan L. Dembin & Assoc., PC
Annotate this CaseDecided on July 22, 2020
Supreme Court, New York County
Paul Ackerman, Plaintiff,
against
Nathan L. Dembin & Associates, PC, and NATHAN DEMBIN, Defendants.
156231/2017
Andrew Lavoott Bluestone, Esq., New York, NY, for plaintiff.
O'Toole Scrivo, LLC, Cedar Grove, NJ (Young Yu of counsel), for defendants.
Gerald Lebovits, J.
In this legal-malpractice action, defendants, Nathan L. Dembin & Associates, P.C., and Nathan L. Dembin, represented plaintiff, Paul Ackerman, M.D., in a professional-misconduct investigation by the New York State Department of Health, Office of Professional Medical Conduct (OPMC). Plaintiff, unhappy with the representation, now asserts three professional-negligence claims and one breach-of-contract claim against defendants. Defendants move for summary judgment. Defendants' motion is granted.
BACKGROUND
Plaintiff is an orthopedist. He was charged with professional misconduct by OPMC for allegedly inappropriately performing arthroscopic surgery on a patient, failing to maintain adequate medical records for patients, and failing to respond to written requests by the Department of Health for records (OPMC statement of charges, NYSCEF No. 40). After a disciplinary interview, defendants negotiated a settlement, called a consent order, with OPMC. Defendants attempted to negotiate a censure and reprimand with course work in ethics, risk management and documentation, and a year of probation (April 17, 2015 Dembin letter to OPMC, NYSCEF Doc No. 66). Plaintiff eventually agreed to three years' probation and a censure and reprimand, and conceded that he could not "successfully defend against at least one of the acts of misconduct alleged" (consent order, NYSCEF Doc No. 42).
Plaintiff later commenced this legal malpractice action against defendants, claiming that defendants failed to investigate properly and submit mitigating documents, to advise plaintiff about the ramifications of entering into the consent order, and to respond to requests for records in the underlying OPMC action (complaint, NYSCEF Doc No. 26). Plaintiff alleges that as a result of the consent order, the Worker's Compensation Board and BlueCross Insurance Company intended to suspend him from their programs and that he was on the verge of losing his privileges at North Shore University Hospital (id.).
Defendants now move under CPLR 3212 for summary judgment dismissing the complaint.
DISCUSSION
Legal malpractice is an attorney's failure to exercise "reasonable skill and knowledge commonly possessed by a member of the legal profession" (Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000] [internal quotation marks and citation omitted]). A plaintiff asserting a malpractice claim must establish (1) the negligence of the attorney; (2) that the attorney's negligence was a proximate cause of the loss sustained; and (3) that the plaintiff was damaged as a result of the attorney's actions (Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008]). A malpractice defendant moving for summary judgment must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the three elements of a cause of action (Crawford v McBride, 303 AD2d 442, 442 [2d Dept 2003]).
Defendants argue that plaintiff cannot satisfy any elements of a legal malpractice claim. They contend that they were not negligent in their representation of plaintiff. Defendant Dembin testified that he advised plaintiff repeatedly about the consequences of signing the consent order and argues that any allegation that pertinent records were not provided to OPMC are baseless (aff in support of motion, NYSCEF Doc No. 22 ¶¶ 17, 30). Defendants point to plaintiff's deposition transcript, in which Ackerman admits that by the time of the OPMC interview, OPMC was in possession of all necessary records and that he read the consent order before signing it, with the knowledge that the order would be published publicly and available online (id. ¶¶ 17, 33-34). Defendants also argue that plaintiff cannot show ascertainable damages, since he never lost his rights to participate in Empire, Medicaid, Medicare, or Workers' Compensation insurance networks following the consent order (id. ¶ 94).
Plaintiff contends that defendants were negligent in their failure to investigate the charge that Ackerman performed inappropriate surgery on a patient. The surgery at issue was denied by [*2]the no-fault insurer as being medically unnecessary based upon a peer review report (master arbitration award, NYSCEF Doc No. 54). Arbitration ensued, and the arbitrator ruled for the insurer (id.). Upon appeal, the master arbitrator reversed on collateral-estoppel grounds because the surgical center's fees had been paid by the insurer (id.). Plaintiff argues that had this arbitration decision been presented before OPMC, the most serious allegation, of inappropriate surgery, would have been mitigated or not charged at all. Plaintiff points to his subsequent attorney's success in modifying the consent order to get the charge of inappropriate surgery removed, after submission of no-fault appeal documents (Ackerman aff, NYSCEF Doc No. 75 ¶ 65). Plaintiff further alleges that defendants failed to respond on his behalf to correspondence from OPMC dated December 8, 2014, March 3, 2015, and June 16, 2015 (memorandum of law in opposition, NYSCEF Doc No. 78 at 13).
In reply, defendants state that although the charge of inappropriate arthroscopic surgery was stricken from the record, OPMC continually refused to redact the charge, because plaintiff had not presented to OPMC "either new and material evidence that was not previously available which, had it been available, would likely have led to a different result or circumstances that have occurred subsequent to the original determination that warrant a reconsideration of the measure of discipline" (June 1, 2018 letter from OPMC, NYSCEF Doc No. 47 at 4). Thus, they argue, the master arbitrator's decision "did not constitute evidence which, had it been available, would have altered the determination of OPMC with respect to any of the Statement of Charges" (memorandum of law in reply, NYSCEF Doc No. 79 at 14). As to the correspondence from OPMC that plaintiff alleges defendants never responded to, defendants explain that they were retained only for the 2012 OPMC investigation, and the correspondence dated December 8, 2014, March 3, 2015, and June 16, 2015 were all part of a separate inquiry (id. at 11-12).
This court concludes that defendants have demonstrated that they used reasonable skill commonly possessed by a member of the legal profession and that any alleged breach was not the proximate cause of plaintiff's damages (see Soliman v O'Connor, McGuinness, Conte, Doyle & Oleson (118 AD3d 866, 867 [2d Dept 2014]). The physician plaintiff in Soliman was also investigated by OPMC. The defendants, attorneys hired to represent Soliman before OPMC negotiated a settlement similar to the one at issue here. Thereafter, Soliman retained new counsel and successfully obtained removal of certain restrictions in the consent agreement and later commenced a legal-malpractice suit. The Court in Soliman held that the motion court should have granted summary judgment to defendants since defendants "exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in their representation of the plaintiff, and, in any event, that any alleged breach was not the proximate cause of the plaintiff's damages" (id. at 867—868).
Here, as in Soliman, plaintiff cannot demonstrate proximate cause. "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" (id., quoting Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d 901, 902 [2d Dept 2013]). With respect to the no-fault arbitration, OPMC stated that it would not redact the portion of the charges relating to inappropriate surgery because the master arbitrator's decision did not constitute "either new and material evidence that was not previously available which, had it been available, would likely have led to a different result or circumstances that have occurred subsequent to the original determination that warrant a reconsideration of the measure of discipline" (NYSCEF Doc No. 47 at 4).
Additionally, defendants have established, and plaintiff's affidavit confirms, that plaintiff's alleged damages never came to fruition (NYSCEF Doc No. 75 ¶¶ 94-97). In opposition, plaintiff's papers and expert affidavit fails to raise a triable issue of fact. Plaintiff does not raise a fact question about whether the inappropriate surgery charge that caused the Worker's Compensation Board or BlueCross Insurance to threaten removal of plaintiff from their program (collateral damage documents, NYSCEF Doc No. 73). Although plaintiff alleges that as a result of defendants' legal malpractice he almost suffered the loss of privileges at North Shore University Hospital (NYSCEF Doc No. 75 ¶ 96), documents subpoenaed from the hospital reveal that plaintiff was terminated prior to the consent order or the OPMC investigation at issue in 2012 (subpoena response from North Shore Long Island Jewish Forest Hills Hospital, NYSCEF Doc No. 49). "Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action" (Holschauer, 5 AD3d at 554).
As for plaintiff's expert affidavit, "expert witnesses should not be called to offer opinion as to the legal obligations of parties under a contract; that is an issue to be determined by the trial court. Expert opinion as to a legal conclusion is impermissible" (Colon v Rent-A-Center, 276 AD2d 58, 61 [1st Dept 2000]). "An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party's conduct" (Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 69 [1st Dept 2002]).
Turning to the cause of action sounding in breach of contract, "where a cause of action alleging breach of contract or fraud arises from the same facts as a legal malpractice cause of action and does not allege distinct damages, the breach of contract or fraud cause of action must be dismissed as duplicative of the legal malpractice cause of action" (Postiglione v Castro, 119 AD3d 920, 922 [2d Dept 2014]). Here, the breach-of-contract claim is duplicative of the legal malpractice causes of action, since they arise from the same facts as those underlying the legal malpractice claims, and do not allege distinct damages (see e.g. Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 600-601 [1st Dept 2014]; Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669, 669 [1st Dept 2012] ["The causes of action for breach of contract, breach of fiduciary duty, and negligent misrepresentation are redundant of the legal malpractice claim, since they arise from the same allegations and seek identical relief"]).
Accordingly, for the foregoing reasons, it is
ORDERED that defendants' motion under CPLR 3212 for summary judgment dismissing the complaint is granted and the complaint is dismissed, with costs and disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs, and the Clerk is directed to enter judgment accordingly.
DATE 7/22/2020
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