Colucci v. Rzepka
| Decision Date | 22 March 2021 |
| Docket Number | Index No. 903586-20 |
| Citation | 2021 NY Slip Op 33699 (U) |
| Court | New York Supreme Court |
| Parties | LORA COLUCCI and YAR-LO, INC., d/b/a MERLE NORMAN COSMETICS, Plaintiffs, v. THOMAS J. RZEPKA, ESQ.; OSBORN REED & BURKE, LLP; BRESSLER & KUNZE; BURKE ALBRIGHT HARTER & REDDY, LLP; MOYER RUSSI & RANDALL, PC; AND LEOPOLD & ASSOCIATES, PLLC, Defendants. |
2021 NY Slip Op 33699(U)
LORA COLUCCI and YAR-LO, INC., d/b/a MERLE NORMAN COSMETICS, Plaintiffs,
v.
THOMAS J. RZEPKA, ESQ.; OSBORN REED & BURKE, LLP; BRESSLER & KUNZE; BURKE ALBRIGHT HARTER & REDDY, LLP; MOYER RUSSI & RANDALL, PC; AND LEOPOLD & ASSOCIATES, PLLC, Defendants.
Index No. 903586-20
Supreme Court, Albany County
March 22, 2021
Unpublished Opinion
LEWIS B, OLIVER, JR., ESQ. Attorney for Plaintiffs
COSTELLO COONEY FEARON PLLC Attorneys for Defendant Thomas J. Rzepka Paul Ferrara, Esq., Of Counsel
CABANISS CASEY LLP Attorneys for Defendant Osborn Reed & Burke, LLP David Cabaniss, Esq., Of Counsel
BRESSLER & KUNZE Self-represented Defendant Karl W. Kunze, Esq., Of Counsel
GOLDBERG SEGALLA, LLP Attorneys for Defendant Burke Albright Harter & Reddy Michael D. Shalhoub, Esq., Of Counsel
TRAUB LIEBERMAN STRAUS &SHREWSBERRY LLP Attorneys for Defendant Moyer Russi & Randall Lisa Shrewsberry, Esq., Of Counsel
DECISION AND ORDER
JUSTIN CORCORAN, SUPREME COURT JUSTICE
Introduction
Plaintiffs Lora Colucci ("Colucci") and Yar-Lo, Inc., d/b/a Merle Norman Cosmetics (collectively "plaintiffs") bring this legal malpractice suit against defendant Thomas J. Rzepka ("Rzepka") and several law firms that allegedly employed him, claiming that his negligent representation in a litigation matter against plaintiffs' former commercial landlord resulted in significant financial harm. Rzepka's former law firms move before answering pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss on grounds including that the claims are time-barred by the three-year statute of limitations under CPLR 214 (6), that the complaint fails to state a cause of action, and that the claims are barred by documentary evidence.
Plaintiffs oppose on several grounds, primarily that the suit is timely under Grace v Law. 24 N.Y.3d 203 (2014). Specifically, plaintiffs argue that Grace v Law held that before an injured client may sue her lawyer for malpractice, she must first exhaust any appeal that is "likely to succeed." For reasons described below, the Court concludes plaintiffs' reliance on Grace v Law as a basis to defer suit is misplaced and that the claims against movants must be dismissed as time-barred, Procedural background
Colucci owned and operated Yar-Lo, Inc, doing business as Merle Norman Cosmetics, a retail store located in Stuyvesant Plaza. As relevant here, the lease between the parties required Yar-Lo, the tenant, to maintain "plumbing fixtures." In 2004, the cosmetics store experienced problems with its sewage system resulting in floods and back-ups, exposing Colucci and the premises to mold, sewage, and toxins. Stuyvesant Plaza refused to fix the problems, which purportedly resulted from a faulty ejector pump, Colucci argued it was not a "plumbing fixture" and thus not an item she was required to maintain or repair. Colucci was diagnosed with medical problems after her exposure. Due to her health problems, she ceased retail operations and vacated the store in April 2005 after receiving a lease "buyout" of $10,000 Colucci filed a claim with Travelers, her commercial insurer, for "business interruption" but her claim was denied.
Colucci met defendant Rzepka in June 2006. She retained him on a contingency fee basis to file (1) an action against Travelers seeking business interruption coverage/benefits and (2) an action against Stuyvesant Plaza for breaching the lease and exposing her to toxins. Rzepka allegedly drafted a complaint in the Travelers action for Colucci to sign in December 2006; that case (which plaintiffs now allege was meritless and even frivolous) was dismissed in May 2014.[1]
On August 20,2007, Rzepka filed an action in Schenectady County Supreme Court on behalf of plaintiffs against Stuyvesant Plaza seeking damages for Colucci's personal injuries and for the cosmetics store's business losses. The landlord answered and discovery apparently proceeded intermittently from 2007-2015. In March 2015, the trial court (Kramer, J.) set deadlines for plaintiffs to file a note of issue and for the parties to file dispositive motions. Discovery, including expert witness disclosure, was ordered to be completed by May 1, 2015 and summary judgment motions were ordered to be filed by August 1,2015 in anticipation of trial in November 2015.
Stuyvesant Plaza complied with the court deadlines by serving expert disclosure related to plumbing and medical experts and by timely filing a motion for summary judgment. The landlord's experts opined inter alia that the components that caused the foul discharges in the store were "fixtures" that the tenant was responsible to maintain/repair and that Colucci's injuries were not caused by any toxins at the store. On the day before the August 14, 2015 return date of the landlord's dispositive motion, Rzepka obtained an adjournment of the return date to October 2, 2015, allowing extra time to submit opposition papers. Crucially, the extension was conditioned upon his apparent consent that the deadline for expert disclosure was not extended similarly, such that plaintiffs would not be permitted to disclose (or rely upon) expert opinions to oppose the motion or present opinions at trial. Plaintiffs claim Rzepka's consent, i.e. waiving the right to disclose any experts, without Colucci's knowledge or approval constituted professional, malpractice and rendered plaintiffs powerless to rebut the landlord's prima facie showing. Colucci contends that she was not timely advised by Rzepka that the motion was pending or that the expert disclosure deadline expired.
Rzepka obtained yet another adjournment of the landlord's dispositive motion, this time until December 4,2015. He wrote to Colucci on November 3, 2015 stating that he wanted to withdraw from representing her and her business in all matters then pending. He sought $12,000 for disbursements and stated he would move for an order allowing him to withdraw if required. Rzepka filed an order to show cause, returnable December 4, 2015, for permission to withdraw. Colucci signed a substitution form on December 7,2015 which relieved Rzepka of further representation and terminated the attorney-client relationship. Rzepka's letter to Colucci and the substitution form suggest that he was practicing as a sole practitioner at the time. Before he withdrew, Rzepka filed a cross-motion for summary judgment and incomplete papers (including
an unexecuted "affidavit" from a county health department engineer) opposing Stuyvesant Plaza's motion.
New counsel appeared for plaintiffs and filed papers in May 2016 opposing Stuyvesant Plaza's motion. Notwithstanding that the expert disclosure deadline had expired, the opposition included expert affidavits on issues including (1) the nexus between Colucci's injuries and exposure to toxins at the store and (2) the landlord's duty to maintain and repair the components that caused the sewage discharge.
On May 27, 2016, Judge Kramer conducted oral argument and read a decision from the bench granting Stuyvesant Plaza's motion for summary judgment dismissing the complaint. An order dismissing the complaint was entered on July 14,2016. The trial court did not consider the affidavits of plaintiffs' experts, who were not timely disclosed pursuant to the scheduling order to which Rzepka had agreed. Plaintiffs, represented by present counsel, appealed.
In a decision issued January 11,2018, the Appellate Division, Third Department affirmed the trial court (Kramer, J.). Colucci v. Stuyvesant Plaza, Inc., 157 A.D.3d 1095, 1095-1097 (2018). The Appellate Division held that the trial court did not abuse its discretion in precluding plaintiffs from submitting expert affidavits and opinions in opposition to the dispositive motion and that Stuyvesant Plaza established prima facie that (1) it did not breach any duty to plaintiffs and (2) there was no causal relationship between Colucci's exposure to mold and sewage on the store premises and her personal injuries or economic loss.
Though the Appellate Division found that the trial court did not inappropriately decline to consider the expert affidavits submitted by plaintiffs, it nonetheless analyzed the content of two of the expert affidavits submitted by plaintiffs in opposition: (1) the affidavit of Colucci (on the issue of her economic loss) and (2) the affidavit of her treating physician (on the issue of a causal nexus between her exposure to toxins and her personal injuries). The court found that Colucci's opinions about her calculation of economic loss were properly disregarded due to tardy disclosure, but that her business degree and experience qualified her to render the opinions. The medical opinions of her doctor were precluded by late disclosure; his affidavit was also found to be too conclusory and vague to establish a causal relationship between Colucci's alleged exposure and specific illness. Ultimately, plaintiffs' inability to offer expert opinions to rebut the landlord's summary judgment motion was fatal to her claims. Plaintiffs allege that Rzepka's failure to timely retain and disclose proper experts thwarted adequate opposition to the motion.[2]
The legal malpractice complaint
In a complaint filed May 27, 2020, plaintiffs assert two causes of action seeking money damages from Rzepka arising from his alleged legal malpractice in plaintiffs' lawsuit against former landlord Stuyvesant Plaza. Plaintiffs also assert a cause of action seeking unspecified treble damages for Rzepka's allegedly fraudulent, deceptive conduct in violation of Judiciary Law §487, claiming Rzepka engaged in fraud and deceit in the Stuyvesant Plaza litigation, as well as the related action seeking compensation under a business interruption insurance policy issued by Travelers and the unrelated personal injury premises liability suit[3]
The gravamen of plaintiffs' legal malpractice action is that Rzepka negligently failed to...
To continue reading
Request your trial