Hatfield v. Herz

• Decision Date: 14 August 2000
• Docket Number: No. 96CIV.5530(PKL).,96CIV.5530(PKL).
• Citation: 109 F.Supp.2d 174
• Parties: John B. HATFIELD, Jr., Plaintiff, v. Stuart M. HERZ, Defendant. Stuart M. Herz, Third-Party Plaintiff, v. Haas, Greenstein, Cohen, Gerstein & Starr, P.C., Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

109 F.Supp.2d 174

John B. HATFIELD, Jr., Plaintiff, v. Stuart M. HERZ, Defendant.

Stuart M. Herz, Third-Party Plaintiff, v. Haas, Greenstein, Cohen, Gerstein & Starr, P.C., Third-Party Defendant.

No. 96CIV.5530(PKL).

United States District Court, S.D. New York.

August 14, 2000.

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Deforest & Duer, New York City, Jeffrey E. Glen, of counsel, for Plaintiff.

Siller Wilk LLP, New York City, Mark E. Housman, Matthew F. Schwartz, of counsel, for Defendant/Third-Party Plaintiff.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY, Peter L. Contini, of counsel, for Third-Party Defendant.

OPINION AND ORDER

LEISURE, District Judge.

Pursuant to Fed.R.Civ.P. 56, defendant Stuart M. Herz moves for summary judgment dismissing this legal malpractice action brought by plaintiff John B. Hatfield, Jr. In the alternative, Herz moves for summary judgment on his cross-claim against third-party defendant Haas, Greenstein, Cohen, Gerstein & Starr, P.C. ("Haas, Greenstein") for indemnification or contribution. Haas, Greenstein moves for summary judgment dismissing this cross-claim. For the reasons stated herein, Herz's motion for summary judgment dismissing Hatfield's complaint is granted, and the cross-motions on the claim for indemnification or contribution are denied as moot.

BACKGROUND

The procedural history and factual background of this case are discussed in additional detail in the Court's June 18, 1998, Opinion and Order denying Haas, Greenstein's motion to sever the third-party action from the principal suit. See Hatfield v. Herz, 9 F.Supp.2d 368 (S.D.N.Y.1998). Accordingly, the Court recounts only those facts relevant to the disposition of the instant motion.

In May 1992, Hatfield was sued by Alexander "Sandy" Milliken, in a state court action alleging that Hatfield, in his capacity as a board member and shareholder of a cooperative apartment corporation ("co-op"), unlawfully sought to prevent Milliken from subleasing his unit in the co-op. Public Service Mutual, the co-op's insurer, retained Herz to defend these claims. After a bench trial in May 1993, the Honorable Walter B. Tolub, Justice of the New York Supreme Court, New York County, awarded Milliken a permanent injunction and $8,500 in compensatory damages. In addition, Justice Tolub assessed $50,000 in punitive damages against each Hatfield and his co-defendant, Edward Marschner.

After Justice Tolub issued his findings of fact and conclusions of law in the Milliken case, Public Service Mutual retained Haas, Greenstein to handle Marschner and Hatfield's appeal. It is undisputed that Haas, Greenstein negligently failed to perfect its clients' appeal, and that, after referral to a special master, the Appellate Division, First Department, declined to accept the late filing. Hatfield and Marschner sued Haas, Greenstein in state court for legal malpractice,¹ and later commenced this action against Herz, alleging the same. Herz, in turn, impleaded Haas, Greenstein as a third-party defendant for indemnification or contribution.

In its June 25, 1998, Opinion and Order, this Court denied third-party defendant Haas, Greenstein's motion to stay this proceeding pending resolution of the state court action against it, and also denied its motion to sever the third-party action. See Hatfield, 9 F.Supp.2d at 374.

DISCUSSION

"In order to prevail on a claim of legal malpractice under New York law, a plaintiff must demonstrate `(1) a duty, (2) a breach of the duty, and (3) proof that actual damages were proximately caused by the breach of the duty.'" Tinelli v. Redl, 199 F.3d 603, 606 (2d Cir.1999) (per curiam) (quoting Marshall v. Nacht, 172 A.D.2d 727, 569 N.Y.S.2d 113, 114 (2d Dep't 1991)). It is not disputed by the parties that Herz, as Hatfield's counsel, owed him a duty of care. To succeed on his claim of legal malpractice, therefore, plaintiff must establish that defendant breached this duty, and that said breach was the proximate cause of some injury to him.

I. STANDARD FOR SUMMARY JUDGMENT

A moving party is entitled to summary judgment if the Court determines that there exists no genuine issue of material fact to be tried and the party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56; see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995) (citation omitted); see also Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1231 (2d Cir.1996).

The Court's function in adjudicating a summary judgment motion is not to try issues of fact, but instead to determine whether there is such an issue. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir.1995). In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129.

"For a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the three essential elements of a malpractice cause of action." Ostriker v. Taylor, Atkins & Ostrow, 258 A.D.2d 572, 685 N.Y.S.2d 470, 471 (2d Dep't 1999); see also Shopsin v. Siben & Siben, 268 A.D.2d 578, 702 N.Y.S.2d 610, 611 (2d Dep't 2000). Although Herz does not contest that he owed a duty of care to Hatfield, he shall be entitled to summary judgment if he can establish that Hatfield is unable to prove either a breach of that duty, or an injury proximately caused by said breach.

To survive summary judgment, the plaintiff in a malpractice case cannot rest on his "allegations of what [he] views as deficiencies in defendant's conduct as his attorney," but must offer "evidence to establish the standard of professional care and skill that [defendant] allegedly failed to meet." Thaler & Thaler v. Gupta, 208 A.D.2d 1130, 617 N.Y.S.2d 605, 606 (3d Dep't 1994); see also Estate of Ginor v. Landsberg, 960 F.Supp. 661, 672 (S.D.N.Y. 1996) (Sand, J.), aff'd, 159 F.3d 1346 (2d Cir.1998). The courts generally require malpractice plaintiffs to "proffer expert opinion evidence on the duty of care to meet their burden of proof in opposition to a properly supported summary judgment motion." Estate of Nevelson v. Carro, Spanbock, Kaster & Cuiffo, 259 A.D.2d 282, 686 N.Y.S.2d 404, 405-06 (1st Dep't 1999) (citing S & D Petroleum Co. v. Tamsett, 144 A.D.2d 849, 534 N.Y.S.2d 800 (3d Dep't 1988)). "However, the requirement that plaintiff come forward with expert evidence on the professional's duty of care may be dispensed with where `ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service.'" Id.; see also Sallam v. Nolan, 116 F.3d 466 (Table), 1997 WL 311607, at *2 (2d Cir.1997) ("Unless a juror's ordinary experience provides sufficient basis to assess the adequacy of the professional service, or the attorney's conduct falls below any standard of due care, expert testimony is necessary to establish that the attorney acted negligently.") (citing Greene v. Payne, Wood & Littlejohn, 197 A.D.2d 664, 602 N.Y.S.2d 883, 885 (2d Dep't 1993)) (emphasis added); Clanton v. Vagianellis, 192 A.D.2d 943, 596 N.Y.S.2d 593, 595 (3d Dep't 1993) ("[I]t is not without significance that no expert affidavit was submitted on the motion by plaintiff attesting to the standard of professional care and skill that defendant allegedly failed to meet, a showing which is necessary to the demonstration of merit in a legal malpractice case") (affirming award of summary judgment to defendant).

Because Hatfield offers nothing more than his own conclusory allegations regarding the applicable standard of care, his malpractice claim can survive summary judgment only if a jury could reasonably conclude, on the basis of their own ordinary experience, that defendant's conduct was so negligent as to fall below any standard of care. See, e.g., Estate of Ginor, 960 F.Supp. at 672. Thus, even where an attorney's performance "may not have been optimal," he shall be entitled to summary judgment for a plaintiff's failure to proffer "any evidence from which a trier of fact could conclude that defendant['s] choice was malpractice." Estate of Re v. Kornstein Veisz & Wexler, 958 F.Supp. 907, 922 (S.D.N.Y.1997) (Sotomayor, J.)

II. BREACH OF DUTY

"`In order to recover damages for malpractice, it must be established that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community.'" 675 Chelsea Corp. v. Lebensfeld, 1997 WL 576089, at *2 (S.D.N.Y. Sept.17, 1997) (Sotomayor, J.) (quoting Hwang v. Bierman, 206 A.D.2d 360, 614 N.Y.S.2d 51, 52 (2d Dep't 1994)). Nonetheless, "[a]ttorneys are entitled to significant discretion in determining which positions to advance on the behalf of their clients, and in determining how best to advance those positions." 675 Chelsea, 1997 WL 576089, at *2 (citing Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 (1985)). "`An attorney ... is not held to a rule of infallibility, and is not liable for an honest mistake of judgment where the proper course of action is open to reasonable doubt.'" Estate of Re, 958...