Carpenter v. Weichert

• Decision Date: 05 February 1976
• Citation: 51 A.D.2d 817,379 N.Y.S.2d 191
• Parties: Earley S. CARPENTER, Respondent, v. Robert M. WEICHERT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 191

379 N.Y.S.2d 191

51 A.D.2d 817

Earley S. CARPENTER, Respondent, v. Robert M. WEICHERT, Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 5, 1976.

Bucci & Lockwood, Baldwinsville (Linda M. Cook, Baldwinsville, of counsel), for respondent.

MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse (Gay M. Pomeroy, Syracuse, of counsel), for appellant.

Before SWEENEY, J.P., and KANE, KOREMAN, MAIN and LARKIN, JJ.

MEMORANDUM DECISION.

Cross appeals from a judgment of the Supreme Court, entered December 2, 1974 in Onondaga County, upon a verdict rendered at a Trial Term in favor of plaintiff.

The judgment is one for money damages against defendant, an attorney, for his malpractice in negligently failing to prosecute an action brought by plaintiff against one Sliva.

On or about January 15, 1959, plaintiff and Sliva entered into a partnership to conduct a coin-operated machine business. Plaintiff was to provide labor, Sliva capital, and the profits were to be equally divided. On March 29, 1959 they formed the Hi-Fi Amusement Corp. along with one Raponi as the third incorporator. Plaintiff contends that all parties agreed that the business would continue as before with each party owning an equal share and that it would, in effect, remain a partnership. This arrangement was corroborated by Raponi who testified that, during the period he was with the firm, each principal regarded and treated one another as partners. Plaintiff further contends that some three or four months later, after stock had been issued, he discovered that Sliva had issued 98 shares to himself, while only 4 shares were issued to plaintiff and 1 to Raponi. Following a meeting where the unequal distribution of stock was discussed, an agreement was reached whereby, among other things, Sliva would return 94 shares to the corporation, Raponi would receive an additional 3, and they would continue on an equal basis. The agreement was never implemented. Early in 1960 Raponi left the business, at which time plaintiff maintains Sliva assured him they would return to the previous 50-50 basis and that he would receive an equal share in the event of any sale of the business.

In August of 1965 plaintiff was advised that Sliva had sold a substantial portion of the assets of the business. When he demanded an equal share of the amount realized, however, Sliva refused any payment. Thereafter, on November 3, 1966, an action was commenced against Sliva for an accounting in which plaintiff was represented by defendant herein as his attorney. An answer was interposed; an examination before trial of Sliva was conducted on behalf of plaintiff; and a note of issue was duly filed on November 25, 1967. The matter was then adjourned from time to time until April of 1968 when it was placed on the general docket where it remained without restoration for trial within the time provided by the appropriate court rules. A motion for an order directing restoration of the action for trial was denied in May of 1970 and the resulting order of dismissal was affirmed upon appeal. Plaintiff then commenc the instant action against his former attorney on December 3, 1971.

In order for plaintiff to recover in this malpractice action, he must prove facts which would enable the jury to find that he would have recovered against Sliva but for his attorney's negligence (Gladden v. Logan, 28 A.D.2d 1116, 284 N.Y.S.2d 920). In other words, he must establish the prior existence of some partnership, joint venture or fiduciary relationship between himself and Sliva as a predicate upon which he would have succeeded in the prior accounting action (Moscatelli v. Nordstrom, 40 A.D.2d 903, 337...