Miazga v. Assaf

• Decision Date: 11 February 2016
• Parties: Robert A. MIAZGA, Appellant–Respondent, v. Michael D. ASSAF et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1131
25 N.Y.S.3d 408

Robert A. MIAZGA, Appellant–Respondent,
v.
Michael D. ASSAF et al., Respondents–Appellants.

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

Feb. 11, 2016.

25 N.Y.S.3d 409

Robert A. Miazga, Troy, appellant-respondent pro se.

Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G. Varley of counsel), for respondents-appellants.

Before: GARRY, J.P., ROSE, LYNCH, DEVINE and CLARK, JJ.

CLARK, J.

136 A.D.3d 1131

(1) Cross appeal from an order of the Supreme Court (Walsh J.), entered September 19, 2014 in Albany County, which, among other things, partially granted defendants' motion for summary judgment, and (2) appeal from an order of said court, entered March 20, 2015 in Albany County, which denied plaintiff's motion for, among other things, reconsideration.

Plaintiff retained defendants in January 2011 to represent him in a custody proceeding and, thereafter, in a divorce action. In April 2012, after a breakdown in the parties' relationship, defendant Michael D.

25 N.Y.S.3d 410

Assaf requested that defendants be relieved as plaintiff's counsel and, after a hearing, the application to withdraw was granted. Plaintiff proceeded pro se in his divorce action and custody proceeding and, thereafter, commenced this action against defendants. In his complaint, plaintiff alleges, among other things, nine causes of action with respect to defendants' representation, including, among other things, breach of a fiduciary duty, legal malpractice, defamation

136 A.D.3d 1132

and breach of contract. Defendants asserted a counterclaim for, among other things, unpaid legal fees. Defendants moved for summary judgment dismissing the complaint, which plaintiff opposed. Plaintiff also cross-moved seeking partial judgment on the issue of liability for the disclosure of an allegedly privileged/confidential email, among other things. Supreme Court granted defendants' motion for summary judgment with respect to plaintiff's claims of legal malpractice and breach of a fiduciary duty, fraud, defamation and failure to communicate, but denied the motion regarding plaintiff's breach of contract claim with respect to defendants' billing rates. Supreme Court also denied plaintiff's cross motion. Plaintiff then moved to reargue and/or renew, in addition to moving for Supreme Court's recusal. Supreme Court denied plaintiff's motion, adhering to its original order. Plaintiff now appeals from both orders,¹ and defendants cross-appeal from that part of Supreme Court's order as denied their motion for summary judgment dismissing the complaint.² We affirm both orders.

We initially reject plaintiff's claim that summary judgment was premature inasmuch as depositions had not yet been completed at the time of the motion practice (see Hobler v. Hussain, 111 A.D.3d 1006, 1009, 975 N.Y.S.2d 212 [2013] ; Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 A.D.3d 1219, 1222, 910 N.Y.S.2d 571 [2010] ) and, turning to defendants' motion for summary judgment itself, agree with Supreme Court that defendants were entitled to the dismissal of certain causes of action.

Addressing plaintiff's defamation claim first, it is well settled that "statements made by counsel and parties in the course of judicial proceedings are privileged as long as such statements are material and pertinent to the questions involved," and, as such, they cannot be the basis of a defamation cause of action (Wiener v. Weintraub, 22 N.Y.2d 330, 331, 292 N.Y.S.2d 667, 239 N.E.2d 540 [1968] [internal quotation marks and citation omitted]; see

136 A.D.3d 1133

Capoccia v. Couch, 134 A.D.2d 806, 807, 522 N.Y.S.2d 261 [1987], appeal dismissed 71 N.Y.2d 1022, 530 N.Y.S.2d 557, 526 N.E.2d 48 [1988] ). "No action for defamation exists unless the statement is ... so needlessly defamatory as to warrant the inference of express malice and a motivation solely to defame" (Grasso v. Mathew, 164 A.D.2d 476, 479, 564 N.Y.S.2d 576 [1991], lv. dismissed

25 N.Y.S.3d 411

77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54 [1991], lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 [1991] ; see Dworkin v. State of New York, 34 A.D.3d 1014, 1014–1015, 825 N.Y.S.2d 2965 [2006] ).³

Here, on April 25, 2012, plaintiff sent Assaf an email indicating that their relationship was at an impasse and aired various grievances with Assaf's representation. On May 11, 2012, May 15, 2012 and May 17, 2012, the parties separately sent letters to Supreme Court regarding Assaf's continued representation of plaintiff. In his letters, Assaf discussed his belief that plaintiff's claims against him were false and, by way of order to show cause, moved Supreme Court to relieve him of further obligations to plaintiff. In support of his request, Assaf submitted plaintiff's email for consideration by Supreme Court.⁴ Given that the correspondence was relevant and pertinent to the then-pending litigation, we agree that it is shielded by the judicial proceedings privilege and cannot serve as the basis of plaintiff's defamation cause of action. Accordingly, Supreme Court correctly dismissed plaintiff's defamation claim.

Turning our attention to plaintiff's claims of legal malpractice, in order to succeed on such a cause of action, the plaintiff must demonstrate that an attorney failed to exercise the ordinary and reasonable skill and knowledge that a member of the legal profession possesses (see Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 313 716 N.Y.S.2d 378, 739 N.E.2d 744 [2000] ; Levine v. Horton, 127 A.D.3d 1395, 1397, 7 N.Y.S.3d 631 [2015] ; Geraci v. Munnelly, 85 A.D.3d 1361, 1362, 924 N.Y.S.2d 693 [2011] ). The plaintiff must also establish that the attorney's breach of this duty proximately caused actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] ; Schrowang v. Biscone, 128 A.D.3d 1162, 1162–1163, 9 N.Y.S.3d 420 [2015] ), and show that he...