David v. Hack

• Decision Date: 10 July 2012
• Citation: 948 N.Y.S.2d 583,97 A.D.3d 437,2012 N.Y. Slip Op. 05479
• Parties: Dany DAVID, Plaintiff–Respondent, v. Michail Z. HACK, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 437
948 N.Y.S.2d 583
2012 N.Y. Slip Op. 05479

Dany DAVID, Plaintiff–Respondent,
v.
Michail Z. HACK, et al., Defendants–Appellants.

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

July 10, 2012.

[948 N.Y.S.2d 584]

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Lisa L. Shrewsberry of counsel), for appellants.

Savitt Law Firm PLLC, New York (Richard P. Savitt of counsel), for respondent.

TOM, J.P., ANDRIAS, CATTERSON, RICHTER, ABDUS–SALAAM, JJ.

[97 A.D.3d 437]Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 19, 2011, which, insofar as appealed from as limited by the briefs, denied defendants' pre-answer motion to dismiss, pursuant to CPLR 3211(a)(1), (5) and (7), the cause of action for legal malpractice, unanimously reversed, and the motion granted, without costs.

By written agreement dated April 28, 2009, plaintiff, a commodities trader with MBF Clearing Corporation, retained defendant Quadrino & Schwartz, P.C., on an hourly fee basis, “to represent him in connection with the filing of long term disability claims under two Guardian group policies.” At that time, [97 A.D.3d 438]the “look back period” for determining an employee's “Insured Earnings,” used to calculate the amount of benefits to which the employee was entitled, was one year from the date of disability. As of May 1, 2009, the look back period was increased to three years.

In support of his malpractice claim, plaintiff alleges that defendants, without his knowledge, submitted a claim form that incorrectly stated that the date of his disability was “4/9/09,” which was the day he stopped trading, not the day he was determined to be disabled; the latter he alleges was May 13, 2009. Plaintiff contends that as a result of this error, Guardian applied the one-year look back period, which led to the denial of his claim on April 14, 2010, because his 2008 income tax return showed a loss. Although plaintiff, on a contingency fee basis, retained new counsel who successfully appealed the denial, he seeks to recover from defendants the additional costs, expenses and attorneys' fees he incurred in prosecuting that appeal.

Supreme Court correctly determined that issues of fact exist as to whether the release signed by plaintiff on March 31, 2010, in connection with the settlement of his fee dispute with defendants, was

[948 N.Y.S.2d 585]

obtained in violation of the Rules of Professional Conduct (22 NYCRR § 1200.0), rule 1.8(h)(2)( see Swift v. Ki Young Choe, 242 A.D.2d 188, 192, 674 N.Y.S.2d 17 [1998];see also Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 217, 371 N.Y.S.2d 884, 333 N.E.2d 163 [1975] ). However, the malpractice claim must nevertheless be dismissed because the evidentiary materials submitted by the parties conclusively establish that defendants breached no duty to plaintiff, and that no alleged damages were caused by any act of defendants ( see O'Callaghan v. Brunelle, 84 A.D.3d 581, 923 N.Y.S.2d 89 [2011],lv. denied18 N.Y.3d 804, 2012 WL 117988 [2012];Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d 380, 381, 736 N.Y.S.2d 666 [2002],lv. denied98 N.Y.2d 603, 745 N.Y.S.2d...