Mid City Electrical Corporation v. Peckar & Abramson

• Docket Number: 2021–03294,Index No. 505935/20
• Decision Date: 01 March 2023
• Citation: Mid City Electrical Corporation v. Peckar & Abramson, 184 N.Y.S.3d 160 (N.Y. App. Div. 2023)
• Parties: MID CITY ELECTRICAL CORPORATION, et al., respondents-appellants, v. PECKAR & ABRAMSON, etc., et al., appellants-respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

184 N.Y.S.3d 160

MID CITY ELECTRICAL CORPORATION, et al., respondents-appellants,

v.PECKAR & ABRAMSON, etc., et al., appellants-respondents, et al., defendant.

2021–03294

Index No. 505935/20

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

Submitted—December 8, 2022

March 1, 2023

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Lisa L. Shrewsberry of counsel), for appellants-respondents.

Pacheco Group, PLLC, Brooklyn, NY (Carmen A. Pacheco and Ruben Huertero of counsel), for respondents-appellants.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch appeal, and the plaintiffs cross-appeal, from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated April 12, 2021. The order, insofar as appealed from, denied that branch of those defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted by the plaintiff Mid City Electrical Corporation against them. The order, insofar as cross-appealed from, granted that branch of those defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted by the plaintiffs Terric McFarlin and John J. Holzer against them.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted by the plaintiff Mid City Electrical Corporation against them is granted; and it is further,

ORDERED that the cross-appeal by the plaintiff Mid City Electrical Corporation is dismissed, as that plaintiff is not aggrieved by the portion of the order cross-appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from by the plaintiffs Terric McFarlin and John J. Holzer; and it is further,

ORDERED that one bill of costs is awarded to the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch.

The plaintiffs, Mid City Electrical Corporation (hereinafter Mid City) and its owners, Terric McFarlin and John J. Holzer, commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch (hereinafter collectively the defendants). The plaintiffs alleged that by letter dated September 18, 2015, the New York State Department of Transportation proposed to terminate the status of Mid City as a disadvantaged business enterprise (hereinafter DBE). Thereafter, Mid City retained the services of the defendants to litigate a challenge to that proposal. After unsuccessfully appealing to the New York State Department of Transportation directly, the defendants commenced a proceeding pursuant to CPLR article 78 on behalf of Mid City to stay the termination of its status as a DBE. That proceeding was dismissed on the ground that Mid City failed to file an appeal with the United States Department of Transportation. The order and judgment dismissing that proceeding was affirmed by the Appellate Division, First Department (see Matter of Mid City Elec. Corp. v. Metropolitan Transp. Auth., 148 A.D.3d 497, 498, 48 N.Y.S.3d 580 ).

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. In an order dated April 12, 2021, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted by McFarlin and Holzer against them, and denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted by Mid City against them. The defendants appeal and the plaintiffs cross-appeal.

"In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Rudovic v. Law Off. of Timothy A. Green, 200 A.D.3d 814, 815, 155 N.Y.S.3d 128 [internal quotation marks omitted]).

To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship (see Siemsen v. Mevorach, 160 A.D.3d 1004, 1005, 72 N.Y.S.3d 478 ; Volpe v. Canfield, 237 A.D.2d 282, 283, 654 N.Y.S.2d 160 ). "It is well established that, with respect to attorney malpractice, absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence" ( Rovello v. Klein, 304 A.D.2d 638, 638, 757 N.Y.S.2d 496 ). "The unilateral belief of a plaintiff alone does not confer upon him or her the status of a client" ( Lombardi v. Lombardi, 127 A.D.3d 1038, 1042, 7 N.Y.S.3d 447 [internal quotation marks omitted]).

Here, the retainer agreement established that the contractual attorney-client relationship existed between only Mid City and the defendants. Moreover, there are no allegations to suggest that McFarlin or Holzer believed that the defendants were representing them, or that McFarlin or Holzer were "foreseeable third-party beneficiar[ies]" of the retainer agreement ( Good Old Days Tavern, Inc. v. Zwirn, 259 A.D.2d 300, 300, 686 N.Y.S.2d 414 ; see Moran v. Hurst, 32 A.D.3d 909, 911, 822 N.Y.S.2d 564 ). Since McFarlin and Holzer were not in privity with the defendants, the Supreme Court correctly directed dismissal of the legal...