Hashmi v. Messiha

• Court: New York Supreme Court — Appellate Division
• Citation: Hashmi v. Messiha, 65 A.D.3d 1193, 886 N.Y.S.2d 712, 2009 NY Slip Op 6665, 2009 WL 3048417 (N.Y. App. Div. 2009)
• Decision Date: 22 September 2009
• Docket Number: 2008-04548.
• Parties: IMADUDDIN SYED HASHMI et al., Respondents, v. NABIL MESSIHA et al., Defendants, and MORRIS, DUFFY, ALONSO & FALEY, Appellant.

65 A.D.3d 1193

886 N.Y.S.2d 712

2009 NY Slip Op 06665

IMADUDDIN SYED HASHMI et al., Respondents, v. NABIL MESSIHA et al., Defendants, and MORRIS, DUFFY, ALONSO & FALEY, Appellant.

2008-04548.

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

September 22, 2009.

In an action, inter alia, to recover damages for legal malpractice, the defendant Morris, Duffy, Alonso & Faley appeals from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated April 7, 2008, as denied its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7). [See 2008 NY Slip Op 31013(U).]

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the appellant's motion to dismiss the complaint insofar as asserted against it is granted.

On October 5, 2005 the defendant Nabil Messiha, individually, as administrator of the estate of Sahar Messiha, and as father and natural guardian of Christine Messiha and Joseph Messiha (hereinafter Messiha), commenced a medical malpractice action (hereinafter the medical malpractice action) against the plaintiffs, among others, alleging that they were negligent in the treatment of the decedent Sahar Messiha (hereinafter Sahar), when she presented herself for treatment at the emergency room of the Staten Island University Hospital (hereinafter the Hospital) on March 7, 2004. The medical malpractice action is pending in the Supreme Court, Kings County.

On October 18, 2005 the defendant law firm Morris, Duffy, Alonso & Faley (hereinafter the appellant) was retained by the plaintiffs' medical malpractice insurance carrier to defend them in the medical malpractice action. According to the relevant allegations in the complaint in the instant action, almost immediately after the appellant was retained, but prior to November 7, 2005, the individual plaintiff Imaduddin Syed Hashmi (hereinafter Hashmi) requested that Patricia E. Permakoff, the attorney assigned by the appellant to defend him, make a motion to dismiss the complaint in the medical malpractice action insofar as asserted against him on the ground that he never physically worked at the Hospital, but she allegedly refused to do so. Significantly, Hashmi does not deny that he was aware, prior to consulting with Permakoff, that his brother, Kabeerudin Hashmi, was the physician who was actually present at the Hospital and treated Sahar, but that he did not inform her of that fact. On November 7, 2005, approximately three weeks after the appellant assumed Hashmi's defense in the medical malpractice action, the defendant New York Post published an article identifying Hashmi as the "Death Sentence Doc" in the underlying malpractice action.

Thereafter, the plaintiffs commenced this action against the appellant, as well as, among others, the New York Post and Messiha. Insofar as is relevant herein, the plaintiffs allege that had Permakoff made a motion to dismiss the complaint in the medical malpractice action as soon as had been requested, the article would never have been published and the plaintiffs would not have sustained any damages. In an order dated April 7, 2008, the Supreme Court, inter alia, denied the appellant's motion to dismiss the complaint insofar as asserted against it, which alleged that it committed legal malpractice in connection with its representation of the plaintiffs in the medical malpractice action. We reverse.

"[A] motion to dismiss made pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, when, as here, the moving party offers evidentiary material, "the court is required to determine whether the proponent of the pleading has a cause of...