Alva v. Hurley, Fox, Selig, Caprari & Kelleher

• Decision Date: 06 January 1993
• Citation: 156 Misc.2d 550,593 N.Y.S.2d 728
• Parties: John ALVA, Plaintiff, v. HURLEY, FOX, SELIG, CAPRARI & KELLEHER, a law partnership, and Barry A. Fox, Defendants.
• Court: New York Supreme Court

Page 728

593 N.Y.S.2d 728

156 Misc.2d 550

John ALVA, Plaintiff, v. HURLEY, FOX, SELIG, CAPRARI & KELLEHER, a law partnership and Barry A. Fox, Defendants.

Supreme Court, Rockland County.

Jan. 6, 1993.

Dinkes & Morelli, New York City, for plaintiff.

Drake, Sommers, Loeb, Tarschis, & Catania, P.C., Newburgh, for defendants.

JOAN B. LEFKOWITZ, Justice.

In this action for alleged legal malpractice defendants have moved for an order compelling the plaintiff to submit to a further medical examination and plaintiff cross-moves for an order precluding the physician from testifying at trial.

Background

On August 25, 1982 plaintiff was a passenger in a van operated by co-employee William Brady and owned by his employer American Gas and Heat Company. The van was proceeding on Route 9W near the intersection of Old Route 304 in the Village of Haverstraw when it was involved in a head on collision with a motor vehicle owned by Raylon Textiles and operated by a Mr. Torres. Plaintiff claimed serious injuries as a result of the accident. He retained the defendant law firm to prosecute his claim.

Defendants commenced two actions: (1) against New York State in the Court of Claims alleging, inter alia, poor design, maintenance and repairs of the road surface, particularly as it collected water that caused hydroplaning and (2) in the Supreme Court, Rockland County against the driver and owner of the other vehicle and Briar Contracting Corporation, who performed repaving work on the road surface prior to the accident.

In neither case did the defendants conduct a physical examination of the plaintiff. The Court of Claims action was tried first. During the liability phase of the bifurcated trial plaintiff's attorney attempted to read in the other driver's examination before trial, which examination had been taken in the Supreme Court action on notice to counsel there but not on notice to counsel for the State in the Court of Claims action. No prior attempt was made in the Court of Claims to conduct an examination before trial of Mr. Torres, the driver, as a nonparty. Court of Claims Act § 17(2). The trial judge refused to permit the deposition taken in the Supreme Court action to be read. At the conclusion of the liability phase of the trial, plaintiff's attorney convinced plaintiff that it would be in his best interests to discontinue the action and proceed with the Supreme Court case, apparently thinking that an adverse determination in the Court of Claims might affect the cause of action (on its merits or settlement value) against the contracting company. Presumably added to this equation, though not set forth in the papers before the Court, was a policy of liability insurance applicable to the offending vehicle that was insufficient to meet the monetary demands of the plaintiff. Thus, the Court of Claims action was discontinued with prejudice.

Thereafter the Supreme Court action came on for trial before Justice Bergerman. The prior trial attorney for plaintiff had unfortunately suffered a heart attack and was hospitalized. Consequently, with plaintiff's consent, another partner in defendant's law firm took over the case which was tried in May 1987.

During that trial the defendants offered $375,000 to $400,000 to settle the case and plaintiff's trial attorney obtained a very significant reduction of the worker's compensation lien. Plaintiff, however, decided not to accept the settlement. Indeed, it appears that unbeknownst to trial counsel, plaintiff visited the hospital where his prior trial attorney was convalescing and without revealing the amount of the settlement offer, obtained the sick bed attorney's opinion of settlement value being two to three hundred thousand dollars more.

The case went to the jury on liability and a verdict was rendered in favor of the plaintiff against the offending vehicle only, and the contracting company was exonerated. Thereafter, the action was settled for the sum of $200,000.

In May 1990 plaintiff commenced the instant action for $5,000,000. The amended answer contains certain affirmative defenses including culpable conduct of the plaintiff, failure to mitigate damages and statute of limitations as to the claims against the first trial attorney.

During pretrial activity herein defendants "requested" a physical examination of plaintiff. Plaintiff's counsel objected but "to avoid unnecessary motion practice we agreed that Mr. Alva would appear for a physical examination, but that the issue of whether defendants could use the results of the physical examination would be held in abeyance until the time of trial" (Ratner Affirmation of October 28, 1992, para. 11).

However, plaintiff failed to attend the first medical examination scheduled at Dr. Joel Mandel's office, though the appointment was confirmed with plaintiff's counsel the day before the scheduled examination. Dr. Mandel has billed defendants $350 for his time on that occasion. A second medical examination was arranged by counsel. Plaintiff was requested to produce all prior x-rays. However, while plaintiff did attend the doctor's office, he did not bring the x-rays, refused to be x-rayed and refused to undergo testing by means of pin pricking.

Defendants move for an order compelling an additional physical examination, requiring plaintiff to submit to x-rays and sensory testing and for the $350 cost of the cancelled examination. Plaintiff opposes the application and cross-moves for an order precluding Dr. Mandel from testifying at trial.

Issue

The motions raise an interesting question of first impression, to wit, in a legal malpractice case may the defendants-attorneys offer proof in reduction of damages that may not have been available to the original tortfeasors by reason of their failure to conduct necessary pretrial discovery?

Discussion

"An action for legal malpractice requires proof of three essential 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". Mendoza v. Schlossman, 87 A.D.2d 606-07, 448 N.Y.S.2d 45 (2d Dep't 1982). New York generally subscribes to the view that the value of the underlying (usually lost) claim is the measure of damage in a legal malpractice action. Campagnola v. Mulholland, 76 N.Y.2d 38, 556 N.Y.S.2d 239, 555 N.E.2d 611 (1990); Vooth v. McEachen, 181 N.Y. 28, 73 N.E. 488 (1905); 76 N.Y.Jur.2d, Malpractice, § 67; Ann. 90 ALR 4th 1033, 1045 (1992), Attorney Malpractice--Damages; 1 Carmody-Wait 2d, Officers of the Court, § 3:74; 2A Warren's Negligence, Attorney Malpractice, § 8.02; 7A CJS, Attorney & Client, §§ 255, 267, 273; 7 Am.Jur.2d, Attorneys at Law, § 226; 16 POF 2d 549 (1978), Legal Malpractice--Inadequate Case Investigation, § 8; 1 Mallen & Smith, Legal Malpractice (3rd ed. 1989), ch. 16; Meiselman, Attorney Malpractice: Law & Procedure (1980 with 1992 Supp.), §§ 4.1, 4.2. Recovery against the malpractice attorney is only allowed to the extent the underlying judgment would have been collectible. Chiaffi v. Wexler, Bergerman & Crucet, 116 A.D.2d 614, 497 N.Y.S.2d 703 (2d Dep't 1986); cf. Pavia v. State Farm Ins. Co., 186 A.D.2d 792, 589 N.Y.S.2d 807 (2d Dep't 1992).

At bar, plaintiff claims he was fraudulently induced to discontinue the Court of Claims action and that defendants were negligent in not securing the driver's deposition for use in the action against the State. Assuming plaintiff prevails in establishing defendants' negligence and causation, he must still prove the amount of his actual damages resulting therefrom. Chiaffi v. Wexler, Bergerman & Crucet, supra, 116 A.D.2d 614, 497 N.Y.S.2d 703; see Pacesetter Comm. Corp. v. Solin & Breindel, P.C., 150 A.D.2d 232, 541 N.Y.S.2d 404 (1st Dep't 1989), app. dism. 74 N.Y.2d 892, 547 N.Y.S.2d 849, 547 N.E.2d 104 (1989).

Where a plaintiff's claim is time barred and he later retains counsel who is negligent in pursuing the claim, the negligent attorney may obtain dismissal of a malpractice action on the ground that the original defendant asserted the time bar as a defense, which precludes any recovery against the attorney because he was not the cause of plaintiff's damage. Nitis v. Goldenthal, 128 A.D.2d 687, 513 N.Y.S.2d 186 (2d Dep't 1987). In Nitis the Record on Appeal (Second Department No. 3867E as maintained on micofiche by the Supreme Court Library in White Plains) reveals that the underlying claim involved a claim against an insurer under an insurance policy. The insurer contended that the plaintiff-insured had failed to timely file proofs of loss and the claim was dismissed on that ground. However, in the malpractice action plaintiff claimed that the insurer had not presented a time-bar as an affirmative defense and it was therefore waived, which prevented the malpractice attorneys from asserting that defense (Appellant's Brief, pp. 11-12). The attorneys contended that while the time-bar was not specifically raised as a defense in the underlying action the insurer did plead plaintiff's contributory negligence as a defense and that was sufficient to inject the time-bar issue into the case properly (Respondent's Brief, Point II). The Appellate Division, Second Department agreed that the malpractice attorneys had established a valid affirmative defense in the underlying action and that plaintiff failed to prove that the insurer had "waived its defense" (128 A.D.2d at 688, 513 N.Y.S.2d 186). Nitis, therefore, implicitly holds the converse that if a waiver occurred in the prior action such would be binding in the malpractice action.

Of course a client may still recover for damages caused by inept counsel even though the underlying claim is successfully resolved in his favor, i.e., for additional expenses incurred. VDR Realty Corp. v. Mintz, 167 A.D.2d 986, 562 N.Y.S.2d 7 (4th Dep't 1990); Skinner v. Stone, Raskin & Israel, 724 F.2d 264 (2d Cir.1983); 76 N.Y.Jur.2d, Malpractice, § 39. Here plaintiff sues essentially for...