Nelson v. Roth

• Decision Date: 04 December 2009
• Docket Number: No. 13435/08.,13435/08.
• Citation: 37 Misc.3d 1225,961 N.Y.S.2d 359,2009 N.Y. Slip Op. 52849
• Parties: Quadasia NELSON, an infant by her mother and natural guardian, Crystal Nelson, and Crystal Nelson, individually, Plaintiffs, v. Pamela S. ROTH, Defendant.
• Court: New York Supreme Court

37 Misc.3d 1225

961 N.Y.S.2d 359

2009 N.Y. Slip Op. 52849

Quadasia NELSON, an infant by her mother and natural guardian, Crystal Nelson, and Crystal Nelson, individually, Plaintiffs,

v.Pamela S. ROTH, Defendant.

No. 13435/08.

Supreme Court, Kings County, New York.

Dec. 4, 2009.

OPINION TEXT STARTS HERESYLVIA O. HINDS–RADIX, J.

Upon the foregoing papers, the motion by defendant/third-party plaintiff Pamela S. Roth (Roth) for an order “reinstating” her cause of action for legal malpractice against third-party defendant Maurice Sieradzki, compelling him to serve an answer and disqualifying him as counsel for plaintiffs Quadasia Nelson, an infant by her mother and natural guardian, Crystal Nelson, and Crystal Nelson, individually, is, in all respects, denied and the cross motion by third-party defendant Maurice Sieradzki (Sieradzki) for leave to renew his prior motion for an order dismissing the third-party complaint pursuant to CPLR 3211(a)(7) is granted and, upon renewal, the second cause of action therein for “contribution/indemnification” is dismissed, except to the extent that it sets forth a claim for contribution predicated upon the liability of Roth to the infant-plaintiff.

On January 24, 2002, Quadasia Nelson and her alleged guardian, Bonnie White, retained Roth, an attorney, to represent them regarding a claim based upon an injury suffered by the infant on January 15, 2002 in front of premises owned by the New York City Housing Authority (N.Y.CHA). On November 18, 2005, Roth purportedly served a notice of claim upon the City of New York and NYCHA. On September 14, 2006, Roth allegedly commenced a negligence action against the City of New York and NYCHA in which Bonnie White was designated as the “natural guardian and godmother” of the infant plaintiff.

In this action, plaintiffs allege that Roth committed legal malpractice in that, among other things, the notice of claim was untimely served and Bonnie White was not the “natural guardian” of Quadasia Nelson as indicated in the notice of claim. Following service of the complaint herein, Roth commenced a third-party action against Sieradzki, an attorney retained by Crystal Nelson after Roth was discharged as counsel. In the third-party complaint, Roth asserted causes of action for legal malpractice and for “contribution/indemnification.” Roth alleged that, at the time he was retained by plaintiffs, Sieradzki knew that a notice of claim had not been properly served upon NYCHA, but that he failed to seek leave to file a late notice of claim.

In his prior motion, Sieradzki asserted that there was never an attorney-client relationship between him and Roth and, therefore, the third-party claim for malpractice was without merit. Insofar as the claim for “contribution/indemnification” was concerned, Sieradzki maintained that, by the time plaintiff retained him, the claim against NYCHA was time-barred and, consequently, he could not have committed acts of malpractice that harmed plaintiffs any further.

In her prior cross motion, Roth contended that the complaint against her should be dismissed because there was never an attorney-client relationship between plaintiffs and defendants. With respect to Sieradzki's motion, Roth argued that a motion for leave to serve a late notice of claim could still be made by plaintiffs and, therefore, her third-party complaint had merit. Roth added that, inasmuch as Sieradzki is guilty of the same malpractice for which he sought to hold defendant liable, he should be disqualified as counsel herein.

In its decision and order dated March 10, 2009, this court found that an attorney-client relationship existed between Roth and the infant plaintiff and, therefore, Roth's cross motion was denied. Because the court also found that the infant's ability to pursue her claim was not foreclosed by the actions of Bonnie White or Roth, it concluded that an application for leave to file a late notice of claim on behalf of the infant would still be timely and, consequently, that it could not find, as a matter of law, that Roth's omissions, if any, ultimately harmed plaintiffs or that Sieradzki did not exacerbate that harm. Therefore, the branch of the cross motion which sought dismissal of Roth's third-party claim for “contribution/indemnification” was denied. However, Roth's third-party claim sounding in legal malpractice was dismissed in the absence of evidence that there was ever an attorney-client relationship between Roth and Sieradzki.

In the instant motion, Roth explains that Sieradzki “is still in this case for indemnification and contribution,” that he has not interposed an answer to the third-party complaint and that he should be compelled to do so. Roth further notes that, following this court's order of March 10, 2009, Sieradzki moved for leave to file a late notice of claim on behalf of plaintiffs in the Supreme Court, New York County, but the application was denied by a judge who “went out of his way to excoriate the application.” Given the alleged additional malpractice committed by Sieradzki in seeking leave to file a late notice of claim, Roth argues that her third-party claim for legal malpractice, which had been dismissed pursuant to this court's order of March 10, 2009, should be “reinstated.” Roth additionally asserts, albeit briefly and without explanation, that Sieradzki (who represents plaintiffs herein) should be disqualified as their counsel.

In his cross motion and in opposition to the instant motion, Sieradzki relates that he was retained by plaintiffs in February 2008 and that the underlying negligence action was “dead on arrival” because of Roth's malpractice. In seeking leave to renew his prior dismissal motion, Sieradzki relies on “material facts that were not known at the time of [the] original motion to dismiss”; namely, that, subsequently, an application for leave to file a late notice of claim was made and was denied on the basis that the application was untimely.¹ In view of the denial of the application despite his “best efforts,” Sieradzki argues that plaintiffs suffered actual harm as a result of Roth's malpractice and, consequently, Roth was not free from fault and may not assert a claim for indemnification against him. Therefore, he seeks leave to renew his prior motion and dismissal of Roth's third-party claim for indemnification. With respect to her claim for contribution, Sieradzki contends that he did not breach any duty to the infant since the underlying action was “dead on arrival” when he was first retained. Insofar as Roth's motion is concerned, he faults Roth for failing to explain what matters of fact or law were overlooked or misapprehended by this court in dismissing her third-party cause of action for legal malpractice. He also points out that he has served an answer to the third-party complaint (annexed as Exhibit “C” to the cross motion) and that Roth “has asserted nothing more than the one conclusory and unsupported statement in support of her request for relief to disqualify [him].” He further notes that Roth sought the same relief in her prior cross motion, “which was denied in its entirety ... in the order dated March 10, 2009.”

In opposition to the cross motion, Roth suggests that Sieradzki has erred in seeking leave to renew by way of motion, rather than by Order to Show Cause. Assuming the cross motion had been properly made, Roth argues that Sieradzki has not set forth “new facts” that would change the prior determination or a justification for his failure to present such facts on the prior motion. She continues to insist that his half-hearted application for leave to file a late notice of claim demonstrates Sieradzki's continuing malpractice. Roth adds that Sieradzki “cannot be a party and counsel for a party in this action,” although she does not further explain how the alleged conflict of interest warrants disqualification.

In reply, Sieradzki cites CPLR 2221(a) to support his contention that his cross motion is “procedurally sound.” With respect to the application for leave to file a late notice of claim–––the “new fact” referred to in seeking leave to renew–––Sieradzki argues that the denial of such relief was supported by legal reasoning, not a critique of his writing style. Sieradzki also suggests that he did not initially seek leave to file a late notice of claim because the time within which to do so had expired, but he ultimately sought such relief, however “futile” the request, because it was referred to in this court's order of March 10, 2009.

In seeking to “reinstate” her third-party cause of action for legal malpractice, Roth suggests that Sieradzki's poor handling of the application for leave to serve a late notice of claim “contains even more malpractice then [sic] when he had failed to make the application at all.” If Roth's request is...