Sang Seok Na v. Schietroma

• Decision Date: 22 May 2019
• Docket Number: 2016–11656,Index No. 704486/14
• Citation: 101 N.Y.S.3d 368,172 A.D.3d 1263
• Parties: SANG SEOK NA, Appellant, v. Paul H. SCHIETROMA, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1263

101 N.Y.S.3d 368

SANG SEOK NA, Appellant,

v.Paul H. SCHIETROMA, etc., et al., Respondents.

2016–11656

Index No. 704486/14

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

Argued—November 16, 2018

May 22, 2019

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In May 2003, the plaintiff commenced a personal injury action against Greyhound Lines, Inc. (hereinafter the Greyhound action). In December 2005, the law firm of Sivin & Miller, LLP (hereinafter S & M), was substituted as counsel for the plaintiff. The Greyhound action was deemed abandoned on May 10, 2007. In January 2008, the law firm of Sapone & Schietroma, P.C., was substituted as counsel for the plaintiff. In December 2008, the defendant Paul H. Schietroma and his law firm, the defendant Paul H. Schietroma, P.C. (hereinafter together the Schietroma defendants), were substituted as counsel for the plaintiff.

In March 2010, the Schietroma defendants filed a motion on the plaintiff's behalf to restore the Greyhound action to the trial calendar, which was denied. The plaintiff appealed, and this Court affirmed (see Sang Seok Na v. Greyhound Lines, Inc., 88 A.D.3d 980, 931 N.Y.S.2d 398 ). In June 2012, the plaintiff commenced an action (hereinafter the first legal malpractice action) against S & M, the Schietroma defendants, and Sapone & Schietroma, P.C., alleging, inter alia, that the defendants in that action committed legal malpractice by failing to timely move to restore the Greyhound action to the trial calendar. In an order dated June 30, 2014, the Supreme Court granted that branch of S & M's motion which was for summary judgment dismissing the complaint insofar as asserted against it as time-barred. In an order dated September 17, 2015, the court granted the motion of the Schietroma defendants and Sapone & Schietroma, P.C., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to raise a triable issue of fact in opposition to their prima facie showing of entitlement to judgment as a matter of law by demonstrating that their alleged negligence did not proximately cause the plaintiff's damages. The plaintiff appealed, and this Court affirmed, concluding that the Schietroma defendants and Sapone & Schietroma, P.C., "met their burden by establishing, prima facie, that their alleged negligence did not proximately cause the plaintiff's damages by showing that the plaintiff would not have succeeded on the merits of the underlying [Greyhound] action," and, in opposition, the plaintiff failed to raise a triable issue of fact ( Sang Seok NA v. Schietroma , 163 A.D.3d 597, 599, 79 N.Y.S.3d 636 ).

In June 2014, the plaintiff commenced this action alleging, inter alia, that the Schietroma defendants were negligent in failing to advise him of a potential legal malpractice claim against S & M arising out of S & M's representation of the plaintiff in the Greyhound action. The Schietroma defendants subsequently moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer 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 ; Sang Seok NA v. Schietroma , 163 A.D.3d at 598, 79 N.Y.S.3d 636 ). To establish proximate causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney's negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer , 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; Kluczka v. Lecci , 63 A.D.3d 796, 797, 880 N.Y.S.2d 698 ).

Here, the Schietroma defendants established their entitlement to summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of collateral estoppel (see Karimian v. Time Equities, Inc. , 164 A.D.3d 486, 489, 83 N.Y.S.3d 227 ). "The doctrine of collateral estoppel, a narrower species of res judicata , precludes a party from relitigating in a subsequent action or proceeding an issue...