Rudolf v. Shayne, Dachs, Stanisci, Corker

• Decision Date: 26 April 2007
• Docket Number: No. 52.,52.
• Citation: 867 N.E.2d 385,8 N.Y.3d 438
• Parties: Bernard RUDOLF et al., Appellants, v. SHAYNE, DACHS, STANISCI, CORKER & SAUER et al., Respondents. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

867 N.E.2d 385

8 N.Y.3d 438

Bernard RUDOLF et al., Appellants, v. SHAYNE, DACHS, STANISCI, CORKER & SAUER et al., Respondents. (And a Third-Party Action.)

No. 52.

Court of Appeals of New York.

April 26, 2007.

Howard R. Birnbach, Great Neck, for appellants.

L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Matthew K. Flanagan of counsel), for respondents.

OPINION OF THE COURT

GRAFFEO, J.

In this legal malpractice action, we conclude that plaintiff is entitled to recover from defendant law firm consequential damages consisting of legal and expert witness fees and related expenses. Under the circumstances of this case, however, we agree with the courts below that plaintiff should not receive an interest award.

In September 1999, plaintiff Bernard Rudolf sustained personal injuries when he was struck by an automobile while walking across the westbound lanes of Sunrise Highway in Merrick, Long Island. The intersection where the accident occurred was controlled by a traffic signal and the car that hit plaintiff was making a left turn from Hewlett Avenue onto Sunrise Highway. Defendant law firm, Shayne, Dachs, Stanisci, Corker & Sauer, was retained to represent plaintiff, and his wife derivatively, in a personal injury action against the driver and owner of the vehicle. A firm member served as plaintiff's trial counsel.

The trial was bifurcated and during the liability stage there was conflicting testimony as to whether plaintiff was in the crosswalk at the time of the accident. After completion of the testimony, at the request of plaintiff's counsel, the trial court instructed the jury on the statutory requirements of Vehicle and Traffic Law § 1151. Section 1151 addresses intersections without operational traffic signals and generally provides that pedestrians have the right of way in crosswalks. But that provision also imposes a duty on pedestrians not to "suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield" (Vehicle and Traffic Law § 1151[b]). The jury returned a verdict finding both plaintiff and the driver negligent and apportioned 50% of the fault to each party. Following the damages phase of the trial, the jury calculated damages at $255,000, to be reduced by half to reflect plaintiff's comparative negligence.¹

Plaintiff then retained new counsel and moved to set aside the verdict, asserting that the court gave an erroneous charge and should have instructed the jury on section 1111 of the Vehicle and Traffic Law rather than section 1151. Section 1111 applies to intersections regulated by traffic signals and grants pedestrians "facing any steady green signal" the right of way within a crosswalk (Vehicle and Traffic Law § 1111[a][3]). The statute further provides that vehicular traffic facing a green arrow signal may enter the intersection cautiously, but must "yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk" (Vehicle and Traffic Law § 1111[a][2]). Supreme Court denied the motion, noting that plaintiff's attorney had requested an instruction based on section 1151. Plaintiff appealed and the Appellate Division reversed, holding that "[t]he erroneous charge was a fundamental error requiring a new trial because it affected the jury's consideration of the plaintiff's liability if the jury determined that the plaintiff was in the crosswalk when he was hit" (4 A.D.3d 408, 409-410, 771 N.Y.S.2d 370 [2004]). The Court granted plaintiff a new trial.

A second trial ensued in November 2004. This time, the court properly charged Vehicle and Traffic Law § 1111 and the jury determined that the driver was solely responsible for the accident.² At the damages phase, five expert witnesses testified on plaintiff's behalf. Before the jury returned a verdict on damages, the parties settled the case for $750,000.

Plaintiff initiated this legal malpractice action against defendants relating to their representation during the first trial, alleging that they were negligent in not requesting that Vehicle and Traffic Law § 1111 be charged to the jury and in failing to object to the charge given. In his damages claim, plaintiff sought payment of the legal fees associated with the motion to set aside the verdict and the appeal, as well as the expert witness fees and expenses incurred for the second trial. Plaintiff also requested approximately $190,000 in interest that would have accrued at nine percent per annum on the $750,000 had that sum been awarded at the conclusion of the first trial in January 2002. Defendants interposed a counterclaim for unpaid legal fees as trial counsel in the first litigation. Plaintiff then moved for summary judgment, seeking the total sum of $225,175.

Supreme Court granted plaintiff summary judgment to the extent of awarding $28,703.27 (plus interest thereon) to reimburse plaintiff for legal and expert fees and expenses, but denied the motion insofar as it sought predecision interest on the $750,000 settlement. The court also dismissed defendants' counterclaim. The Appellate Division reversed plaintiff's award of $28,703.27 and dismissed the complaint in its entirety, reasoning that plaintiff did not sustain any actual damages as a result of defendants' malpractice in light of the substantial settlement obtained during the course of the second trial. We granted plaintiff leave to appeal.

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (McCoy v. Feinman, 99 N.Y.2d 295, 301-302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] [internal quotation marks and citation omitted]). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence (see Davis v. Klein, 88 N.Y.2d 1008, 1009-1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268 [1996]; Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 [1987]).

Here, defendants do not dispute that they were negligent in requesting that section 1151 of the Vehicle and Traffic Law be charged in light of the...