Atiencia v. Pinczewski
| Decision Date | 22 January 2015 |
| Docket Number | No. 15528/05.,15528/05. |
| Parties | Catalina ATIENCIA, Plaintiff, v. Benjamin M. PINCZEWSKI, Esq., and Law Offices of Benjamin Pinczewski, P.C., Defendants. |
| Court | New York Supreme Court |
William Pager, for Plaintiff Attorney.
Kaufman, Borgeest & Ryan, for Defense Attorney.
The defendants Benjamin M. Pinczewski, Esq. and Law Offices of Benjamin M. Pinczewski, P.C. move for an order, pursuant to CPLR § 3212, granting the defendants summary judgment and dismissing the Complaint in its entirety, with prejudice.
This malpractice claim arises out of the defendants' legal representation of the plaintiff during an underlying personal injury lawsuit. The plaintiff hired the defendants to represent her after she was involved in a two-car accident on April 4, 2001. The plaintiff was a passenger in a vehicle owned and operated by Fabian Cando (“Cando”) that collided with a vehicle owned by Julio Morales (“Morales”) and operated by Edgar Palaquibay (“Palaquibay”). The defendants were retained in 2001, commenced a personal injury lawsuit on the plaintiff's behalf on March 31, 2004, and continued to represent her until April of 2005 when the plaintiff discharged the defendants and requested that her file be transferred to her new attorneys. On May 5, 2005 the plaintiff commenced this legal malpractice action against the defendants. The alleged malpractice arises out of the defendants' decision to file the underlying action in the Civil Court instead of the Supreme Court, and the defendants' decision to sue only Cando but not Palaquibay. The plaintiff avers that the defendants' decisions made the case untriable and handcuffed her into settling the case for an amount less than she should have. On March 21, 2006 the defendants moved to dismiss the Complaint for failure to state a cause of action, or alternatively, because the action was filed prematurely. On June 5, 2006 the motion to dismiss was denied but the court agreed that the action was filed prematurely because the underlying matter was still ongoing. The action was disposed and the plaintiff moved to restore it on October 1, 2009 after the underlying action settled for $10,000.00. The defendants cross-moved for dismissal and were denied, and the motion to restore was granted on January 29, 2010. On September 24, 2013 the plaintiff filed a Note of Issue and Certificate of Readiness, the defendants then filed the instant motion for summary judgment dismissing the Complaint.
The defendants argue that there are no issues of fact and that the court should decide the case as a matter of law. To support their position the defendants note that the plaintiff settled the underlying case for $10,000.00 in Civil Court, which is $15,000.00 less than the $25,000.00 cap on Civil Court judgments. The defendants argue that this is significant because the plaintiff cannot prove one of the requirements for proving legal malpractice she suffered an ascertainable damage as a result of the case being filed in Civil instead of Supreme Court, as is one of her contentions. The defendants aver that because the plaintiff was unable to attain the maximum judgment of $25,000.00 in Civil Court, she cannot demonstrate that she suffered ascertainable damages by having the underlying case tried in a court with a $25,000.00 cap. The defendants also claim that she would not have been rewarded any more than the $10,000.00 settlement had the case been tried in Supreme Court. The defendants argue that the plaintiff's new counsel could have removed her case to Supreme Court but instead chose to continue litigating in Civil Court for approximately four years after the plaintiff discharged the defendants as counsel. Therefore, the defendants argue, the plaintiff's new counsel had the “last clear chance” to remedy any alleged malpractice by the defendants, and broke the link of proximate causation between the defendants representation of the plaintiff and the outcome of the case.
The plaintiff presents three arguments in opposition to the motion for summary judgment. First, she argues that res judicata bars the issuing of a summary judgment because the defendant made similar arguments in their prior motions to dismiss, which were denied, and because in a previous decision the court stated that there were issues of fact to resolve. Second, the plaintiff avers that the defendants obliterated her chance at recovering from the driver of the other car that was involved in the accident. The plaintiff believes that because Palaquibay wasn't named as a defendant, Cando had an “empty chair defense” allowing him to shift blame to Palaquibay, and that because Cando's insurance policy was capped at $25,000.00, the plaintiff was forced to settle for a $10,000.00 recovery since Palaquibay was not included in the lawsuit. Finally, the plaintiff argues that the defendants fumbled the underlying case so badly that it was impracticable for the case to be removed to the Supreme Court. The plaintiff argues that the cost of the application for removal to Supreme Court being denied outweighed the benefit of it being granted because the the second driver was not named as a defendant, because even if the removal was granted, the plaintiff would still be stuck with one defendant whose insurance policy was capped at $25,000.00.
A party can be granted summary judgment if it can “on paper proof alone without the aid of oral testimony, convince the court that there is no material issue of fact outstanding and that the facts mandate judgment in its favor” (see CPLR § 3212, Commentary C3212:1). “We repeat today a precept frequently stated-where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement” (see Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] ).
To recover damages for legal malpractice a plaintiff must prove that the defendant attorney (1) failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; (2) that the attorney's breach of this duty proximately caused plaintiff to sustain (3) actual ascertainable damages, and (4) that the plaintiff would have been successful in the underlying action if the defendant had exercised due care (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ). “A prima facie case requires proof of the defendant's negligence, that such negligence was the proximate cause of the plaintiff's loss, and actual damages” (see Shopsin v. Siben & Siben, 268 A.D.2d 578, 702 N.Y.S.2d 610 [2nd Dept 2000] ). A defendant attorney will succeed on a motion for summary judgment to dismiss a legal malpractice claim if she submits evidence in admissible form establishing that the plaintiff cannot prove at least one of the aforementioned essential elements (id. ). A plaintiff's cause of action for legal malpractice must stand on its own merits, and there is no automatic waiver, as a matter of law, of a plaintiff's right to sue for legal malpractice even if they voluntarily agreed to enter into a stipulation of settlement (see N.A. Kerson Co. Inc. v. Shayne Dachs Weiss Kolbrenner Levy and Moe Levine, 59 A.D.2d 551, 552–553, 397 N.Y.S.2d 142 [2nd Dept 1977], affd 45 N.Y.2d 730 [1978] ). However, in malpractice actions a client cannot recover against an errant attorney without demonstrating that she would otherwise have succeeded on the merits (see Servidone Const. Corp. v. Security Ins. Co. of Hartford, 64 N.Y.2d 419, 425 [1985] ; see also e.g. Kerson, 59 A.D.2d 551, 397 N.Y.S.2d 142 [2nd Dept 1977], affd 45 N.Y.2d 730 [1978] ).
The First Department has held that for the plaintiff to succeed in an action for legal malpractice where there was a settlement in the underlying case, she must “demonstrate that if not for the alleged acts of malpractice, [s]he would have been able to recover or proceed in a manner other than that which actually eventuated” (see Becker v. Julien, Blitz & Schlesinger, P.C., 95 Misc.2d 64, 68 [1977] ). “Where the termination [of a case] is by settlement rather than by dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because a prior misfeasance or nonfeasance by the attorneys left no other recourse (id. At 66). ...
To continue reading
Request your trial