McGivney v. Sobel, Ross, Fliegel & Suss, LLP

• Decision Date: 28 November 2011
• Docket Number: No. 109484/2010.,109484/2010.
• Citation: 2011 N.Y. Slip Op. 52528,36 Misc.3d 1230,959 N.Y.S.2d 90
• Court: New York Supreme Court
• Parties: William MCGIVNEY and JANICE McGIVNEY, Plaintiffs v. SOBEL, ROSS, FLIEGEL & SUSS, LLP, and Sherwin A. Suss, Defendants.

36 Misc.3d 1230
959 N.Y.S.2d 90
2011 N.Y. Slip Op. 52528

William MCGIVNEY and JANICE McGIVNEY, Plaintiffs
v.
SOBEL, ROSS, FLIEGEL & SUSS, LLP, and Sherwin A. Suss, Defendants.

No. 109484/2010.

Supreme Court, New York County, New York.

Nov. 28, 2011.

Bryan P. Kujawski Esq., Kujawski & Dellicarpini, for Plaintiffs.

Peter T. Shapiro Esq. Lewis Brisbois Bisgaard & Smith LLP for Defendants.

LUCY BILLINGS, J.
I. BACKGROUND

Plaintiffs sue to recover damages for defendants' legal malpractice while representing plaintiffs in an action for plaintiff William McGivney's injury July 1, 1997, and his wife's loss of his services. The injury occurred when a chair manufactured by Compex International Company Ltd. and installed in Kmart Corporation's retail premises by Huffy Service First, Inc., collapsed as he sat in it. Defendants move to dismiss the complaint on the grounds of documentary evidence and failure to state a claim, C.P.L.R. § 3211(a)(1) and (7), and for an award of costs. Plaintiffs cross-move for summary judgment on defendants' liability for the malpractice claim, C.P.L.R. § 3212(b) and (e), or for an immediate trial on that issue. C.P.L.R. § 3211(c). For the reasons explained below, the court grants defendants' motion in part, but otherwise denies their motion, and denies plaintiffs' cross-motion.

In sum, plaintiffs allege that defendants failed to sue the chair's manufacturer and assembler; allowed plaintiffs' action against the retailer to stagnate when it filed a bankruptcy petition triggering a stay of the action; and never sought to preserve plaintiffs' claim in the bankruptcy proceeding, lift the stay, or recover from responsible parties' insurers. Defendants' omissions deprived plaintiffs of any recovery from the manufacturer or assembler and from the retailer once its debts were discharged or, at minimum, an earlier recovery, from them or their insurers. These allegations of negligence, causation, and damages sustain plaintiffs' legal malpractice claim.

Defendants, in seeking dismissal, do not establish that plaintiffs still may recover from the retailer or from the manufacturer's insurer based simply on a letter from the retailer's former attorney regarding the insurer's indemnification of the retailer, which did not bind the manufacturer or its insurer. Nor do defendants explain why, upon receiving this letter in June 2001, they did not seek to recover then from the insurer, before the retailer's bankruptcy petition, and before the statute of limitations expired.

The absence of damages specifically from defendant's violation of New York Judiciary Law § 487, however, is fatal to this claim. Although plaintiffs establish the requisite pervasive delinquency and deceit by defendants to sustain this claim, plaintiffs fail to allege that defendants' deceit, distinct from their malpractice, caused an adverse result in their litigation.

II. APPLICABLE STANDARDS

The court may dismiss a complaint where admissible documentary evidence utterly refutes plaintiffs' allegations and conclusively establishes a defense as a matter of law. C.P.L.R. § 3211(a)(1); Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 571 (2005); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 (2002); 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002); McCully v. Jersey Partners, Inc., 60 AD3d 562 (1st Dep't 2009). Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1) or (7), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence is in admissible form, demonstrates the absence of any significant dispute regarding those facts, and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 NY3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326;Leon v. Martinez, 84 N.Y.2d 83, 87–88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 A.D.2d 128 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs' favor. Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326;Harris v.. IG Greenpoint Corp., 72 AD3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 144–45 (1st Dep't 2009). The court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88;Harris v. IG Greenpoint Corp., 72 AD3d at 609;Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep't 2001).

III. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' CLAIMS

In May 1998, defendants commenced a personal injury action on plaintiffs' behalf against only Kmart. Kmart filed a bankruptcy petition in January 2002, which automatically stayed that action. 11 U.S.C. § 362(a)(1). Defendants never moved to lift the stay or filed a claim on plaintiffs' behalf in the bankruptcy proceeding. In 2009, plaintiffs retained a new attorney to represent them in their action against Kmart. Kmart was discharged in bankruptcy and the proceeding terminated March 3, 2010. 11 U.S.C. § 524(a)(1).

A. Legal Malpractice Claim

To establish legal malpractice, plaintiffs must plead and ultimately prove that defendant attorneys' professional negligence proximately caused plaintiffs actual damages. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007); Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 A.D.2d 63, 67 (1st Dep't 2002); Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d 380 (1st Dep't 2002). Defendant attorneys must have failed to use reasonable skill and knowledge that members of the legal profession ordinarily possess. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442;McCoy v. Feinman, 99 N.Y.2d 295, 301 (2002); Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303–304 (2001). To establish causation, plaintiffs must show that they would have prevailed in their action but for defendants' negligence. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442;Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d 380;Dweck Law Firm v. Mann, 283 A.D.2d 292, 293 (1st Dep't 2001); Zarin v. Reid & Priest, 184 A.D.2d 385, 386 (1st Dep't 1992).

The complaint alleges that defendants were negligent in that they failed to commence a negligence and product liability action against the chair's manufacturer Compex and a negligence...