Baker v. Dorfman
| Citation | 239 F.3d 415 |
| Decision Date | 01 August 1999 |
| Docket Number | No. 1351,Docket No. 99-7528,1351 |
| Parties | (2nd Cir. 2000) RICKY BAKER, Plaintiff-Appellee, v. DAVID ALAN DORFMAN, Defendant-Appellant. -- |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.) granting and then amending a judgment in favor of plaintiff-appellee in his legal malpractice and fraud actions against his former attorney.
Affirmed.
[Copyrighted Material Omitted] GREGORY ANTOLLINO, New York, NY, for Plaintiff-Appellee.
STANLEY N. FUTTERMAN, New York, NY, for Defendant-Appellant.
Before: FEINBERG, JACOBS and STRAUB, Circuit Judges.
Nine months after Ricky Baker was told by an agency of New York City (the "City") that he had tested positive for the human immunodeficiency virus ("HIV"), the City asked him to submit to another test, which revealed that the first result was a false positive. Baker retained David Dorfman, Esq., to sue the City for negligent infliction of emotional distress. The claim was dismissed when Dorfman missed a deadline. Baker unsuccessfully appealed by new counsel.
In this diversity action against Dorfman, Baker pleaded (A) legal malpractice, on the ground that Dorfman's negligence resulted in the loss of Baker's claim against the City, and (B) fraud, on the ground that Dorfman's resume contained intentional and material misrepresentations that induced the retention. The district court entered partial summary judgment in favor of Baker on the issue of malpractice liability. After a trial on damages and the fraud claim, a jury awarded Baker compensatory damages for Dorfman's malpractice, consisting of $285,000 for pain and suffering, $75,000 in lost wages, and $5,000 in out-of-pocket expenses. The jury found that Dorfman also had committed fraud and awarded $25,000 in punitive damages. Dorfman's motion for a new trial was denied.
The court granted Baker's motion to amend the judgment to include (i) prejudgment interest on the value of the dismissed claim against the City, running from the date of dismissal, and (ii) attorney's fees incurred in the unsuccessful appeal of that dismissal.
On appeal, Dorfman argues that (1) HIV-misdiagnosis is not cognizable under New York law, so that his negligence caused Baker no loss, and that Baker's malpractice claim therefore fails as a matter of law; (2) most of Baker's damages occurred after he discovered that he was HIV-negative, and that the malpractice award was therefore against the weight of the evidence; (3) Baker's fraud claim was not viable because it failed to allege damages that are separate and distinct from the malpractice claim, as New York law requires; (4) prejudgment interest is unavailable or, in the alternative, was miscalculated; and (5) the attorney's fees award was improper because, inter alia, Baker's attorney pursued the unsuccessful appeal on a contingency basis.
We affirm.
After learning that a person with whom he had been intimate tested HIV-positive, Baker visited Dr. Michael Mullen at Cabrini Hospital in New York City to take an HIV test. Dr. Mullen sent Baker's blood sample to a testing laboratory operated by the Department of Health of the City of New York ("DOH"). On April 20, 1993, Baker was told that the test result was positive.
As a result, Baker suffered deepening depression, withdrew from his friends and former life, and lost self-confidence. The diagnosis "shot [him] . . . to the bottom." He lost weight, had trouble sleeping, and spent weekends abed. He continued to work as an interior designer, but lost ambition and energy, stopped working overtime, lost his freelance design clients, and shelved plans to start his own design firm.
In January 1994, DOH advised Dr. Mullen that Baker should be retested because his blood sample was tested by DOH on a bad day. On January 17, 1994--nine months after he received his original test result--Baker learned that the retest result was negative. Skeptical about the reliability of the retest, and fearful that in reliance on the earlier test he may have placed himself at risk, Baker took several more HIV tests. Each confirmed that he was HIV-negative.1
Even after Baker got the good news, his depression continued to deepen, he became angry and listless, and though he sought psychiatric counseling, he was unable to resume his prior life. In mid-1994, Baker quit his job; by year end, he moved home to Iowa and eventually took a job.
A legal referral service recommended two lawyers, one of them Dorfman. Baker was impressed by Dorfman's resume, and paid him a $1000 retainer on February 3, 1994.
On April 12, 1994, Dorfman filed notice of Baker's claim against the City in the New York State Supreme Court. Almost one year later, on March 31, 1995, Dorfman filed the complaint. After two years and substantial discovery, Baker fired Dorfman, and retained Gregory Antollino, Esq., who filed a motion for summary judgment. The City cross-moved for summary judgment, arguing that Baker's notice of claim and his complaint were untimely, on the following theory: notice of claim against a public corporation in New York must be served within "ninety days after the claim arises," N.Y. Gen. Mun. Law §50-e(1)(a) (McKinney 1999); a negligence cause of action accrues on the date of injury (i.e., the false positive test on April 20, 1993) rather than the date of discovery (i.e., the negative retest on January 17, 1994), see Rizk v. Cohen, 538 N.Y.S.2d 229, 232 n.3 (1989); Dorfman's claim against the City therefore accrued when he was misdiagnosed on April 20, 1993, and his notice of claim was untimely after July 19, 1993.
Dorfman was first retained in February 1994, after the time for filing a notice of claim had passed. But New York law allows for a motion for leave to file a late notice of claim within the period of the statute of limitations. See N.Y. Gen. Mun. Law § 50-e(5). The New York statute of limitations on negligence actions against municipalities is one year and 90 days from the date of injury. See id. § 50-i(1)(c). Thus, five months remained to seek leave to file a late notice of claim after Dorfman's retention. Dorfman instead filed the late notice of claim without the motion to excuse lateness.
Dorfman's second default involved the statute of limitations for filing the complaint. Dorfman had until July 19, 1994, five months after his February 1994 retention to file the complaint. Dorfman allowed Baker's claim to expire by waiting to file the complaint until March 31, 1995--almost two years after the misdiagnosis and long after the statute had run.2
The state trial court granted the City's motion for summary judgment. Baker appealed by new counsel, and the Appellate Division affirmed. See Baker v. City of New York, 671 N.Y.S.2d 663, 663 (1st Dep't 1998).
On October 9, 1997, Baker commenced this action against Dorfman, who appeared pro se. Baker sought a declaration that the state court would have granted leave to file a late notice of claim if Dorfman had filed one, and damages for legal malpractice and resume fraud.
The district court granted partial summary judgment in Baker's favor, issuing the requested declaration and concluding that Dorfman had committed legal malpractice. The remaining issues, as follows, were presented to the jury: (i) the amount of malpractice damages, (ii) whether Dorfman had committed fraud, (iii) if so, whether punitive damages were warranted, and (iv) the amount of any punitive damages.
The jury awarded $360,000 in compensatory damages, found that Dorfman had committed fraud, and awarded $25,000 in punitive damages on account of the fraud. The compensatory damages consisted of $285,000 for emotional distress, $70,000 for lost wages, and $5,000 for out-of-pocket expenses. The court entered judgment in the total amount of $385,000 on December 2, 1998.
Post-trial, Dorfman appeared by counsel, and moved for a new trial, which the district court denied. See Baker v. Dorfman, No. 97 CIV 7512 (DLC), 1999 WL 191531, at *2-*10 (S.D.N.Y. Apr. 6, 1999). As to the malpractice claim, the court concluded, inter alia, that although Baker suffered a portion of his damages after learning he was HIV-negative, the judgment was not against the weight of the evidence and the damage award was reasonable. See id. at *3-*6. As to the fraud claim, the court concluded that Dorfman had defrauded Baker into retaining him through the use of "patent falsehoods and misrepresentations designed to portray himself as an experienced litigator." Id. at *7.
For his part, Baker moved post-trial to amend the judgment to add pre-judgment interest and attorney's fees on the state-court appeal. The court amended the judgment by adding $7,312.50 for prejudgment interest on the value of Baker's lost claim, and $11,178.05 for attorney's fees incurred when Baker unsuccessfully appealed the dismissal of his claim against the City. See id. at *10-*12.
Final judgment was entered on April 9, 1999, and this appeal by Dorfman followed.
Dorfman challenges the malpractice judgment on the grounds that (1) the malpractice caused no loss because Baker's claim against the City was meritless under New York law, and (2) the judgment was against the weight of the evidence because most of Baker's damages occurred after he learned he was in fact HIV-negative.
Under New York law, a claim for legal malpractice has three elements: "(1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages." Davis v. Klein, 637 N.Y.S.2d 137, 139 (1st Dep't 1996) (citation and internal quotation marks omitted); see also Hanlin v....
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