Stein v. Chiera

• Decision Date: 22 July 2015
• Docket Number: 2013-11445, 2014-00880
• Citation: 14 N.Y.S.3d 133,130 A.D.3d 912,2015 N.Y. Slip Op. 06234
• Parties: Tracy STEIN, etc., plaintiff-respondent, v. Randall J. CHIERA, etc., et al., defendants third-party plaintiffs-appellants; Joseph M. Lichtenstein, etc., et al., third-party defendants-respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 912

14 N.Y.S.3d 133

2015 N.Y. Slip Op. 06234

Tracy STEIN, etc., plaintiff-respondent

v. Randall J. CHIERA, etc., et al., defendants third-party plaintiffs-appellants;Joseph M. Lichtenstein, etc., et al., third-party defendants-respondents.

2013-11445, 2014-00880

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

July 22, 2015.

Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Christopher Russo of counsel), for defendants third-party plaintiffs-appellants.

Mark R. Bower, New York, N.Y., for plaintiff-respondent.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y., for third-party defendants-respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS and ROBERT J. MILLER, JJ.

Opinion

In an action, inter alia, to recover damages for legal malpractice, the defendants third-party plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Walker, J.), dated October 8, 2013, which granted the third-party defendants' motion pursuant to CPLR 3211(a) to dismiss the third-party complaint, and denied their motion pursuant to CPLR 3211(a) to dismiss the complaint, and (2) a judgment of the same court entered December 3, 2013, which, upon the order, is in favor of the third-party defendants and against them dismissing the third-party complaint.

ORDERED that the appeal from so much of the order as granted the motion of the third-party defendants pursuant to CPLR 3211(a) to dismiss the third-party complaint is dismissed; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, the motion of the defendants third-party plaintiffs pursuant to CPLR 3211(a) to dismiss the complaint is granted, and the matter is remitted to the Supreme Court, Westchester County, for the severance of the main action and the entry of an appropriate judgment in favor of the defendants third-party plaintiffs and against the plaintiff dismissing the complaint; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs and the third-party defendants, payable by the plaintiff.

The appeal from so much of the order as granted the motion of the third-party defendants pursuant to CPLR 3211(a) to dismiss the third-party complaint must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the third-party action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

In November 2005, the plaintiff, Tracy Stein, and her now-deceased husband, Allan Stein (hereinafter the decedent), retained the defendants, Randall J. Chiera and Chiera & Associates (hereinafter together Chiera), to commence an action on their behalf to recover damages for medical malpractice based on the failure of various medical professionals to timely diagnose the decedent's lung cancer. On November 7, 2005, the decedent died, and on the same day, Chiera commenced an action, inter alia, seeking damages for medical malpractice (hereinafter the 2005 action). Chiera failed to serve the defendants in the 2005 action and, eventually, that action was dismissed. In October 2006, the plaintiff retained the third-party defendants, Joseph M. Lichtenstein and the Law Offices of Joseph M. Lichtenstein, P.C. (hereinafter together Lichtenstein), to commence a new action to recover damages for medical malpractice and wrongful death, on behalf of the plaintiff individually and as executor of the decedent's estate. On October 16, 2006, less than a year after the decedent's death, Lichtenstein commenced an action on the plaintiff's behalf (hereinafter the 2006 action). Ultimately, the 2006 action was settled.

Before the 2006 action settled, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice against Chiera. In an amended complaint, she alleged that, as a result of Chiera's failure to properly serve the defendants in the 2005 action and the consequent dismissal of that action, some of her claims were untimely when she commenced the 2006 action. Specifically, the plaintiff alleged that some of the acts of medical malpractice underlying her wrongful death cause of action had taken place more than 2 ½ years before she commenced the 2006 action. As a result of Chiera's alleged legal malpractice in failing to timely serve the defendants in the 2005 action, the plaintiff was forced to accept a settlement in the 2006 action for “a far lower amount” than “the full value of [the] medical malpractice claims.”

After being served with the plaintiff's complaint, Chiera commenced a third-party action against Lichtenstein for contribution and common-law indemnification. Chiera alleged that Lichtenstein's deficient representation, not Chiera's, was the proximate cause of the plaintiff's acceptance of a settlement for less than the full value of her claims. Lichtenstein moved pursuant to CPLR 3211(a) to dismiss the third-party complaint. Chiera, in turn, moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted Lichtenstein's motion to dismiss Chiera's third-party complaint, and a judgment was entered dismissing that third-party complaint. The Supreme Court denied Chiera's motion to dismiss the complaint. Chiera appeals.

On a motion to dismiss a complaint for failure to state a cause of action, the complaint is to be afforded a liberal construction. The facts alleged in it are presumed to be true and are to be accorded every favorable inference. If they fit within any cognizable legal theory, the motion to dismiss should be denied (see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94, affd. 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135 ). If, however, the allegations do not fit within any cognizable legal theory even after they are accorded every favorable inference, the motion to dismiss should be granted (see Fisher v. DiPietro, 54 A.D.3d 892, 894–895, 864 N.Y.S.2d 532 ).

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege 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 failure was a proximate cause of actual and ascertainable damages (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434–435, 834 N.Y.S.2d 705, 866 N.E.2d 1033 ; Randazzo v. Nelson, 128 A.D.3d 935, 9 N.Y.S.3d 394 ; Held v. Seidenberg, 87 A.D.3d 616, 617, 928 N.Y.S.2d 477 ). To establish causation, it is sufficient that the plaintiff allege that, but for the defendant attorney's failure to exercise ordinary reasonable skill and knowledge, there would have been a more favorable outcome in the underlying proceeding (see Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 A.D.3d 822, 823, 6 N.Y.S.3d 65 ). Even when the underlying proceeding has settled, a plaintiff may state a cause of action alleging legal malpractice, upon sufficiently alleging that the settlement was “ ‘effectively compelled by the mistakes of counsel’ ” (Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571, quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 ; see Schiff v. Sallah Law Firm, P.C., 128 A.D.3d 668, 7 N.Y.S.3d 587 ).

Here, the plaintiff's factual allegations fail to state a cause of action to recover damages for legal malpractice against Chiera. First, any medical malpractice cause of action to...