Coccia v. Liotti

• Decision Date: 09 February 2010
• Citation: 70 A.D.3d 747,896 N.Y.S.2d 90,2010 N.Y. Slip Op. 00917
• Parties: Joan COCCIA, appellant-respondent,v.Thomas F. LIOTTI, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 747
896 N.Y.S.2d 90
2010 N.Y. Slip Op. 00917

Joan COCCIA, appellant-respondent,
v.
Thomas F. LIOTTI, respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 9, 2010.

[896 N.Y.S.2d 93]

Jeffrey Levitt, Amityville, N.Y., for appellant-respondent.Thomas F. Liotti, Garden City, N.Y. (Michael P. Hilferty of counsel), respondent-appellant pro se.REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[70 A.D.3d 748] In an action, inter alia, to recover damages for legal malpractice, (1) the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered May 5, 2008, as granted the defendant's motion, denominated as one, inter alia, for summary judgment dismissing the complaint, but which was, in actuality, for leave to renew those branches of the defendant's prior cross motion which were for summary judgment dismissing the complaint, which had been determined in an order entered September 13, 2007, and, in effect, upon renewal, vacated the determination in the order entered September 13, 2007, denying those branches of the defendant's prior cross motion which were for summary judgment dismissing the second, fifth, and sixth causes of action, so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligent advice to settle an underlying matrimonial action without taking into consideration information contained in a forensic accounting report and without applying for an award of counsel fees, and so much of the fourth cause of action as sought a reimbursement of counsel fees she already paid based upon the defendant's failure to render itemized bills, and thereupon granted those branches of the defendant's prior cross motion, and denied those branches of the plaintiff's cross motion which were for summary judgment dismissing the first, second, and third counterclaims, and the defendant cross-appeals, as limited by his brief, from so much of the same order entered May 5, 2008, as, in effect, upon renewal, adhered to the determination in the order entered September 13, 2007, denying that branch of his prior cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon his alleged negligence

[896 N.Y.S.2d 94]

in failing to perfect and prosecute an appeal from an order in the underlying matrimonial action, (2) the plaintiff appeals from so much of an order of the same court entered July 9, 2008, as denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue those branches of her cross motion which were for summary judgment dismissing the first, second, and third counterclaims, which had been determined in the order entered May 5, 2008, and her opposition to those branches of the defendant's motion which were, in effect, for leave to renew and the defendant cross-appeals, as limited by his brief, from so much of the [70 A.D.3d 749] same order as, upon renewal, adhered to its determination in the order entered September 13, 2007, denying that branch of his prior cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon his alleged negligence in failing to perfect and prosecute an appeal from the order in the underlying matrimonial action, (3) the defendant separately appeals from an order of the same court entered September 22, 2008, which denied his motion for leave to renew and reargue, and (4) the defendant separately appeals from an order of the same court entered April 8, 2009, which denied his motion for leave to renew and reargue.

ORDERED that the plaintiff's appeal from so much of the order entered July 9, 2008, as denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue, is dismissed; and it is further,

ORDERED that the defendant's separate appeal from so much of the order entered September 22, 2008, as denied that branch of his motion which was for leave to reargue is dismissed; and it is further,

ORDERED that the defendant's separate appeal from so much of the order entered April 8, 2009, as denied that branch of his motion which was for leave to reargue is dismissed; and it is further,

ORDERED that the order entered May 5, 2008, is modified, on the law, (1) by deleting the provisions thereof, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying those branches of the defendant's prior cross motion which were for summary judgment dismissing the second and sixth causes of action, so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligent advice to settle an underlying matrimonial action without taking into consideration information contained in a forensic accounting report and without applying for legal fees, and so much of the fourth cause of action as sought a reimbursement of counsel fees already paid by the plaintiff to the defendant based upon the defendant's failure, inter alia, to render itemized bills, and granting those branches of the defendant's prior cross motion, and substituting therefor a provision, in effect, upon renewal, adhering to the original determination in the order entered September 13, 2007, denying those branches of the defendant's prior cross motion, and (2) by deleting the provision thereof denying those branches of the plaintiff's cross motion which were for summary judgment dismissing the first, second, and third counterclaims,[70 A.D.3d 750] and substituting therefor a provision granting those branches of the plaintiff's cross motion; as so modified, the order entered May 5, 2008, is affirmed insofar as appealed and cross-appealed from, and the order entered September 13, 2007, is modified accordingly; and it is further,

ORDERED that the order entered July 9, 2008, is reversed insofar as reviewed, on

[896 N.Y.S.2d 95]

the law, and the defendant's motion, in effect, for leave to renew that branch of his prior cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon his alleged negligence in failing to prosecute an appeal from an order in the underlying matrimonial action is denied; and it is further,

ORDERED that the orders entered September 22, 2008 and April 8, 2009, respectively, are affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff retained the defendant to represent her in a matrimonial action. The plaintiff eventually settled the underlying action with her former husband (hereinafter the husband) and received the sums of $100,000 in equitable distribution and $1.5 million, representing her interest in the martial residence.

The plaintiff commenced this action against the defendant seeking, inter alia, to recover damages for legal malpractice. In the first cause of action, the plaintiff alleged that the defendant negligently: (1) advised her to settle the matrimonial action and to ignore evidence adduced by a forensic accountant that the husband earned, or had the ability to earn, annually, several hundred thousand dollars more than he claimed; (2) advised her to settle the matrimonial action without making an application to the court for the payment of his counsel fees by the husband, or obtaining an award of counsel fees as part of the settlement; (3) advised her to settle the matrimonial action without seeking recovery, in equitable distribution, for the appreciation of the allegedly separate property of the husband; and (4) failed to pursue and perfect an appeal from an order in the underlying matrimonial action regarding the validity of a postnuptial agreement.

In the second cause of action, the plaintiff sought treble damages, based upon a purported violation of Judiciary Law § 487(2). In the third cause of action, the plaintiff sought to recover counsel fees she had already paid to the defendant on the ground that the fees were excessive. In the fourth cause of action, the plaintiff sought to recover counsel fees she had already paid to the defendant on the ground that the manner, form, substance, [70 A.D.3d 751] and timeliness of the billing rendered by the defendant were not in conformity with the retainer agreement executed by the parties, the court rules referable to matrimonial actions, or the Code of Professional Responsibility. In the fifth cause of action, the plaintiff alleged that the defendant fraudulently induced her to sign the retainer agreement by misrepresenting that he would pursue an appeal from the order in the underlying matrimonial action, and continued to misrepresent to her that an appeal was being pursued. Finally, in the sixth cause of action, the plaintiff alleged that the defendant fraudulently induced her to sign the retainer agreement by misrepresenting that the person substantially responsible for her case was an attorney, whereas such person was, in fact, a disbarred attorney. The defendant interposed counterclaims against the plaintiff. The first three counterclaims sought to recover outstanding counsel fees, and the fourth counterclaim alleged defamation and violation of Judiciary Law § 90.

In an order entered September 13, 2007, the Supreme Court denied the defendant's cross motion (hereinafter the initial cross motion) for summary judgment dismissing the complaint on the ground that the initial cross motion was supported by the defendant's unsworn, self-entitled “affidavit,” which was, in effect, an affirmation. The

[896 N.Y.S.2d 96]

court concluded that, since the defendant was a party to the action, and was not merely affirming...