Katsaris v. Scelsi

• Decision Date: 09 August 1982
• Citation: 115 Misc.2d 115,453 N.Y.S.2d 994
• Parties: Sammy KATSARIS and Grace A. Katsaris, Plaintiffs, v. Joel A. SCELSI, Defendant.
• Court: New York Supreme Court

Page 994

453 N.Y.S.2d 994

115 Misc.2d 115

Sammy KATSARIS and Grace A. Katsaris, Plaintiffs, v. Joel A. SCELSI, Defendant.

Supreme Court, Broome County.

Aug. 9, 1982.

Chernin & Gold, Binghamton, Sanford P. Tanenhaus, Binghamton, of counsel, for plaintiffs.

Thaler & Thaler, Ithaca, Peter J. Walsh, Ithaca, of counsel, for defendant.

DECISION

HOWARD A. ZELLER, Justice Presiding.

This is an action to recover damages for legal malpractice. Plaintiffs Sammy and Grace A. Katsaris move for an order granting them summary judgment on the issue of liability; defendant Joel A. Scelsi cross-moves for summary judgment dismissing the complaint.

On December 29, 1972 in Binghamton the auto Mr. Katsaris was operating was struck by a motor vehicle owned by a corporation, leased to another corporation and driven by Klaus O. Toepelt, an employee of the lessee corporation. Mr. Katsaris was injured.

Mr. Katsaris and his wife retained Mr. Scelsi, an attorney at law, who instituted a lawsuit against Mr. Toepelt and the two corporations. Issue was joined and in April, 1976 the action was tried before this court (Kuhnen, J.) and a jury. Liability was conceded; damages were contested. The jury returned a verdict in favor of Mr. Katsaris for $10,000.00 and nothing for Mrs. Katsaris in her derivative cause of action. Upon motion of Mr. Scelsi, the trial judge set aside the verdict as inadequate and ordered a new trial unless defendants consented to increase the verdict in favor of Mr. Katsaris to $20,000.00 and to permit an award in favor of Mrs. Katsaris of $500.00. A written stipulation was executed and filed by defendants. Judgment was entered accordingly on January 17, 1977 in favor of Mr. Katsaris for $20,000.00 and for his wife for $500.00.

On January 25, 1977 Mr. Scelsi filed and served a Notice of Appeal on behalf of his clients who believed the awards to be "grossly inadequate." No further activity occurred until May, 1979 when Mr. Scelsi moved the Appellate Division, Third Judicial Department, for leave to file the record on appeal and a brief after the prescribed time to do so had expired. ¹ Mr. Scelsi averred the reasons for the delay in perfecting the appeal were difficulties in obtaining the transcript of the trial testimony, his own extended illness and his attention to other pending lawsuits. Defendant Toepelt and the two defendant corporations opposed the motion and cross-moved for a dismissal of the appeal for lack of prosecution.

On July 3, 1979, in a memorandum decision, the Appellate Division denied the relief requested on behalf of Mr. and Mrs. Katsaris and dismissed the appeal stating: "The judgment sought to be appealed was entered January 17, 1977. The moving papers fail to set forth a reasonable excuse for the substantial delay." An order of dismissal was entered.

On July 1, 1980 Mr. and Mrs. Katsaris commenced this action against Mr. Scelsi to recover damages for malpractice. An answer has been interposed.

A legal malpractice action may be described as a "lawsuit within a lawsuit." A plaintiff must prove the attorney failed to exercise reasonable care, and also that the plaintiff would have been successful in the underlying action if the attorney had performed properly (Parksville Mobile Modular, Inc. v. Fabricant, 73 A.D.2d 595, 599, 422 N.Y.S.2d 710, app. dismd. 49 N.Y.2d 800, 801). It is only when a default is granted that a plaintiff need not establish the validity of the underlying action (Mendoza v. Schlossman, 87 A.D.2d 606, 448 N.Y.S.2d 45). Here Mr. and Mrs. Katsaris must show that Mr. Scelsi was negligent, and that if the appeal had been perfected, the Appellate Division would have found the award of $20,000.00 to Mr. Katsaris or the award of $500.00 to his wife inadequate, or both awards inadequate, and would have reversed the judgment. Also, they must show that ultimately one of them or both of them would have been awarded larger amounts.

Was Mr. Scelsi negligent? Ordinarily the issue of negligence is a question of fact for the jury. However, if the facts are so compelling that no conflicting inferences can be drawn and rational men cannot differ, then the question of negligence may be decided as a matter of law by the court (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 517, 429 N.Y.S.2d 606, 407 N.E.2d 451).

The facts in the case at bar support a finding of negligence as a matter of law. Mr. Scelsi filed the notice of appeal and did not file the record and appellants' brief within the time allotted. Two years later he sought leave to file after the prescribed time to do so had expired. The Appellate Division found no valid excuse for the delay in prosecuting the appeal. Mr. Scelsi now does not dispute his responsibility for the appeal or claim the delay was excusable. There is no question of fact as to what happened and reasonable minds could not differ in describing Mr. Scelsi's conduct as negligent (cf. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853; Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184, app. dismd. 11 A.D.2d 660, 205 N.Y.S.2d 831).

The second issue is how the Appellate Division would have ruled had the appeal been heard.

In 1961 a U.S. District Court Judge sitting in West Virginia noted his surprise at the paucity of authoritative cases in which a losing party charges negligence against his lawyer for failure to prosecute an appeal. (Better Homes, Inc. v. Rodgers, 195 F.Supp. 93, 96, D.C.W.V.). In that case a judgment was entered against a defendant in a negligence action; the defendant's lawyers agreed to appeal the verdict but failed to file all papers necessary for an appeal; a malpractice action followed. The judge deferred ruling on a summary judgment motion until the case had been submitted by stipulation as upon trial, and the original record and transcript had been filed. The court then reviewed the record and concluded that judgment non obstante veredicto was not required, and found in favor of the former attorneys.

The judge ruling on such a case must determine what the appellate court would have done "as an issue of law, based upon review of the transcript and record of the underlying action, the argument of counsel and subject to the same rules of review as should have been applied by the appellate courts" (Mallen and Levit, Legal Malpractice (2d ed.) § 583, p 738). Some judges have made reviews after a full trial (see e.g. Pete v. Henderson, 124 Cal.App.2d 487, 269 P.2d 78; Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448, cert. den. 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666; Cornelissen v. Ort, 132 Mich. 294, 93 N.W. 617) but as in Better Homes the review also may be made on the transcript of the trial.

Two courts have expressed concern over the idea of a judge attempting to predict the outcome of an appellate case and of reviewing the decision of a judge of coordinate jurisdiction (Better Homes, Inc. v. Rodgers, supra, 195 F.Supp. at p. 95; Pete v. Henderson, su...