Shapiro v. Butler
| Decision Date | 22 June 2000 |
| Citation | 709 N.Y.S.2d 687,273 A.D.2d 657 |
| Parties | MARTIN SHAPIRO et al., Respondents,<BR>v.<BR>EARL D. BUTLER, Individually and as a Shareholder of EARL D. BUTLER, P. C., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Spain, J. P.
Plaintiffs commenced this action alleging, inter alia, defendants' legal malpractice in failing to timely interpose an answer on plaintiffs' behalf in a Federal civil action in which they and plaintiff Martin Shapiro's two sons were named as defendants. The Federal action was based on allegations of illegal interception and disclosure of telephone conversations in violation of 18 USC §§ 2511 and 2520. After a default judgment was entered in the Federal action and their motion to vacate the default was denied, plaintiffs retained new counsel and agreed to a settlement of the Federal action. Following joinder of issue and discovery in this action, the parties cross-moved for summary judgment. Supreme Court granted plaintiffs' motion for partial summary judgment on the issue of liability on their legal malpractice cause of action and denied defendants' motion for summary judgment seeking dismissal of the complaint. Defendants appeal.
Defendants contend that in the absence of expert evidence, Supreme Court erred in granting summary judgment to plaintiffs on the issue of defendants' failure to exercise the requisite care, skill and diligence commonly possessed by a member of the legal profession. Expert evidence is not required "where the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service" (S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850; accord, Deitz v Kelleher & Flink, 232 AD2d 943, 945). Inasmuch as an attorney's failure to timely interpose an answer in an action in which his or her client is a defendant constitutes prima facie evidence of legal malpractice (see, Ashley v Maney, McConville & Liccardi, 251 AD2d 862, 863), no expert evidence was required in this case.
Defendants also claim that plaintiffs' culpable conduct, including their failure to authorize service of answers until after the time to do so had expired, caused the default. Assuming that plaintiffs' culpable conduct could constitute a complete defense to defendants' failure to interpose a timely answer, rather than a matter in mitigation of damages (but see, Caiati v Kimel Funding Corp., 154 AD2d 639), defendants' failure to protect their clients—by seeking an extension of time to answer—is further evidence of malpractice (see, Deitz v Kelleher & Flink, supra, at 945). Although defendants assert in their brief that they were not authorized to appear at all in the Federal action, there is no evidence that they were precluded from seeking an extension while their clients decided what course of action to pursue. Defendant Earl D. Butler warned his clients of the need to timely answer, but there is no evidence that he suggested that they seek an extension or made any effort to seek one. In denying the motion to vacate the default in the Federal action, the Federal District Court noted that "a simple telephone call seeking additional time, or a request for a formal extension of time to answer, could have obviated this motion." Supreme Court correctly concluded that as a matter of law defendants' failure to timely interpose an answer or seek an extension of time to answer in the Federal action constituted a breach of the standard of professional care and skill.
However, among the elements necessary to establish a prima facie case of legal malpractice is proof that, absent the attorney's negligence, the client would have been successful in the underlying action (see, C & F Pollution Control v Fidelity & Cas. Co., 222 AD2d 828, 829; Thaler & Thaler v Gupta, 208 AD2d 1130, 1132).
Relying on evidence in defendants' motion papers that during the Federal litigation Butler advised plaintiffs that a jury was not likely to find them guilty of illegal wiretapping, Supreme Court concluded that defendants could not assert an inconsistent claim in this case. However, while Butler's advice was sufficient to demonstrate that plaintiffs have a cause of action for the purpose of denying defendants' request to dismiss the complaint for failure to state a cause of action (cf., Metz v Coopers & Lybrand, 210 AD2d 624, 626), there is no basis to preclude defendants from now arguing that plaintiffs would not have prevailed in the Federal action.
Plaintiffs' reliance on the doctrine of judicial estoppel is misplaced. "Under...
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