C & F Pollution Control Inc. v. Fidelity and Cas. Co. of New York

• Decision Date: 07 December 1995
• Citation: 222 A.D.2d 828,653 N.Y.S.2d 704
• Parties: C & F POLLUTION CONTROL INC., Respondent, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant, and Ronald H. Sinzheimer, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 704

653 N.Y.S.2d 704

222 A.D.2d 828

C & F POLLUTION CONTROL INC., Respondent, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant and Ronald H. Sinzheimer, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 7, 1995.

Roche, Corrigan, McCoy & Bush (Scott W. Bush, of counsel), Albany, for appellant.

Grasso, Rodriguez, Putorti, Grasso & Zyra (Lawrence J. Zyra, of counsel), Schenectady, for respondent.

Before CARDONA, P.J., and MIKOLL, CASEY, YESAWICH and PETERS, JJ.

MIKOLL, Justice.

Appeals (1) from an order of the Supreme Court (Lynch, J.), entered July 22, 1994 in Schenectady County, which denied defendant Ronald H. Sinzheimer's motion for summary judgment dismissing the complaint against him, and (2) from an order of said court, entered October 21, 1994 in Schenectady County, which partially granted plaintiff's motion for partial summary judgment on the issue of liability.

A motor vehicle owned by plaintiff was damaged when it was involved in an accident occurring on October 23, 1982. Defendant Fidelity and Casualty Company of New York, plaintiff's insurer, made certain payments pursuant to plaintiff's proof of loss. Plaintiff was dissatisfied with this payment and hired defendant Ronald H. Sinzheimer (hereinafter defendant), an attorney, to represent it in this matter. In a letter dated November 1, 1983, defendant informed Fidelity on plaintiff's behalf that the matter was in dispute and that plaintiff wished to invoke a clause in the insurance agreement calling for an "appraisal process" to be undertaken in the event of a dispute over a payment amount. Apparently Fidelity did not respond to this request and, thereafter, an action by plaintiff against Fidelity was commenced in April 1984 which was discontinued without prejudice by stipulation in November 1984. The parties to the lawsuit agreed that the matter was to be determined under the contract's appraisal process. However, the appraisal process was never completed and, for reasons disputed by the parties, the matter remained dormant until defendant was notified in a letter dated March 22, 1989 that plaintiff had changed attorneys. Defendant forwarded the file to plaintiff's new attorney in May 1989.

Plaintiff apparently thereafter changed attorneys again and, after Fidelity refused a February 1993 request to reopen plaintiff's file, plaintiff again sued Fidelity, joining defendant as well, alleging, respectively, breach of contract and legal malpractice. Fidelity's motion for summary judgment dismissing the complaint against it on the ground of the Statute of Limitations was subsequently granted. Thereafter, Supreme Court denied a motion by defendant seeking summary judgment in his favor and granted a motion by plaintiff for partial summary judgment against defendant on the issue of defendant's negligence in allowing the Statute of Limitations to run. These appeals by defendant followed.

It is well settled that "[a] prima facie case of legal malpractice requires proof of the attorney's negligence, that such negligence was the proximate cause of injury to the client, and that absent such negligence, the client would have been successful in the underlying action" (Thaler & Thaler v. Gupta, 208 A.D.2d 1130, 1132, 617 N.Y.S.2d 605; see, Parmisani v. Grasso, 218 A.D.2d 870, 871, 629 N.Y.S.2d 865, 866). Plaintiff's claim against defendant...