| Sutch v Sutch-Lenz |
| 2015 NY Slip Op 04693 [129 AD3d 1141] |
| June 4, 2015 |
| Appellate Division, Third Department |
[*1]
| Jessica M. Sutch, Appellant, v Debera C. Sutch-Lenz,Also Known as Debera C. Sutch, et al., Defendants, and Dean M. Coon, as Guardian adLitem of Jessica M. Sutch, an Infant, Respondent. |
Towne Ryan & Partners, PC, Albany (Elena DeFio Kean of counsel), forappellant.
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J. O'Malley of counsel),for Dean M. Coon, respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Nolan Jr., J.), enteredJanuary 22, 2014 in Saratoga County, which granted defendant Dean M. Coon's motionfor summary judgment dismissing the complaint against him.
In 1996, plaintiff's mother, defendant Debera C. Sutch-Lenz, and father, AlfredSutch (hereinafter decedent), commenced a medical malpractice action based uponinjuries allegedly sustained by Sutch-Lenz while undergoing breast reduction surgery.Four years later, decedent died in a light plane crash in Saratoga County. In April 2000,Sutch-Lenz petitioned for and was granted limited letters of administration for purposesof pursuing (1) decedent's derivative claim in the context of the medical malpracticeaction and (2) a wrongful death action against the aircraft's manufacturer and the flightschool where decedent had been taking lessons.
Thereafter, in October 2000, Sutch-Lenz again petitioned Surrogate's Court (SeibertJr., [*2]S.), this time seeking permission to sell certainreal property owned by Sutch-Lenz and decedent as tenants in common and located inFulton County. In the context of that proceeding, Surrogate's Court appointed defendantDean M. Coon (hereinafter defendant) to act as guardian ad litem for plaintiff (born in1989) and her brother, Benjamin Sutch (born in 1993). After reviewing the terms of theproposed sale, defendant filed a report with Surrogate's Court recommending thatSutch-Lenz be allowed to sell the property. Surrogate's Court thereafter grantedSutch-Lenz permission to sell the Fulton County property and directed that "any and allnet proceeds of the sale attributable to the one-half . . . interest of thedecedent shall be held by [Sutch-Lenz] as [a]dministrator for the benefit of the estate andshall not be distributed without further [o]rder of this [c]ourt."[FN1] In November 2000, Surrogate's Courtissued an order fixing defendant's fee at $300.
In the interim, a jury returned a verdict in the medical malpractice action and, byjudgment entered in August 2001, decedent's estate was awarded $100,000 on decedent'sderivative claim (Sutch v Yarinsky, 292 AD2d 715 [2002]). Thereafter, inNovember 2003, a tentative settlement was reached in the wrongful death action and, inconjunction therewith, Supreme Court appointed defendant James G. Snyder to act asguardian ad litem for plaintiff and her brother. Snyder then reviewed the proposeddistribution and issued a report to Supreme Court recommending that the settlement beapproved. Supreme Court thereafter authorized Sutch-Lenz to settle the wrongful deathaction, and plaintiff's share of the proceeds was used to purchase annuities in hername.[FN2]
Plaintiff thereafter commenced this action against, among others, defendant,contending—in her 12th and 13th causes of action—that defendantcommitted legal malpractice and breached his fiduciary duty to her by failing to, amongother things, ensure that she received her share of the proceeds from both the sale of theFulton County property and the recovery obtained in the medical malpractice action andby failing to protect her interests in the context of the settlement reached in the wrongfuldeath action.[FN3]Following joinder of issue, defendant moved for summary judgment dismissing thecomplaint against him. Supreme Court granted defendant's motion, and this appeal byplaintiff ensued.
We affirm. As a threshold matter, "[a] legal malpractice claim requires the existenceof an attorney-client relationship" (Arnold v Devane, 123 AD3d 1202, 1203 [2014]).Assuming such a relationship is established, the plaintiff then "must demonstrate that theattorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession and that the attorney's breach of this dutyproximately caused [the] plaintiff to [*3]sustain actualand ascertainable damages" (Hinsdale v Weiermiller, 126 AD3d 1103, 1104 [2015][internal quotation marks and citations omitted]).
Here, in support of his motion for summary judgment, defendant averred that he wasappointed to serve as guardian ad litem for plaintiff (and her brother) solely inconnection with the sale of the Fulton County property, that his services in this capacityceased in November 2000, that he neither provided nor billed for services in connectionwith the medical malpractice and/or wrongful death actions and that he "had no rolewhatsoever" in the distribution of the proceeds derived from those actions to decedent'sestate. To that end, defendant submitted the order appointing him as guardian ad litem(issued by Surrogate's Court in response to Sutch-Lenz's request to sell the FultonCounty property), his report recommending the approval of the sale and thedocumentation associated with the corresponding payment of his fee. Such proof, in ourview, was more than sufficient to discharge defendant's initial burden in thisregard—namely, to establish that his appointment as guardian ad litem was limitedto the sale of the subject property and ceased in November 2000, i.e., prior to both theentry of the judgment in the medical malpractice action in August 2001 and thesettlement of the wrongful death action in late 2003.
In an effort to raise a question of fact as to the scope of defendant's representation,plaintiff submitted defendant's itemized statement of services, which reflects that, prior tohis appointment, defendant reviewed "many documents" received from Sutch-Lenz'sattorney and lists—as one of the estate's assets—decedent's derivative claimin the medical malpractice action. Such proof falls far short of demonstrating thatdefendant was appointed to serve as guardian ad litem for plaintiff in all mattersinvolving decedent's estate—including the underlying medical malpractice andwrongful death actions. Indeed, plaintiff's argument as to the asserted scope ofdefendant's appointment and corresponding representation of her interests is belied bythe record as a whole, which reflects—as noted previously—that Snyderwas appointed to serve as guardian ad litem in the context of the wrongful death actionand was specifically charged by Supreme Court with the task of reviewing the proposedsettlement relative thereto.
In light of the foregoing, plaintiff's legal malpractice claim is limited solely todefendant's representation of her interests in connection with the sale of the FultonCounty property, as the record makes clear that defendant did not serve as guardian adlitem—and, hence, owed no duty to plaintiff—beyond the confines of thattransaction. Upon reviewing defendant's submissions in support of his motion forsummary judgment, we are satisfied that defendant demonstrated that—inconnection with recommending the approval of the sale of the Fulton Countyproperty—he exercised the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession and that plaintiff, in turn, failed to tendersufficient proof to raise a question of fact in this regard. To the extent that plaintiffcontends that defendant was negligent in failing to ensure that she received her share ofthe net proceeds from the sale of such property, we need note only that it was theresponsibility of Sutch-Lenz, in her capacity as decedent's administrator, to collect estateassets and distribute them accordingly (see generally Matter of Manning, 244App Div 9, 12-13 [1935], affd sub nom. Matter of Dunbar & Sullivan DredgingCo. v Fidelity & Deposit Co., 268 NY 690 [1935]; Matter of Scheuer,94 Misc 2d 538, 543 [Sur Ct, NY County 1978]; Matter of Blaszkiewicz, 33Misc 2d 884, 885 [Sur Ct, Richmond County 1962]). Hence, plaintiff's quarrel in thisregard lies with Sutch-Lenz, not defendant. Finally, inasmuch as plaintiff's cause ofaction for breach of fiduciary duty is premised upon the same facts and circumstances asthose underlying her legal malpractice claim, the two causes of action are duplicative ofone another (see Cosmetics PlusGroup, Ltd. v Traub, 105 AD3d 134, 143 [2013], lv denied 22 NY3d855 [2013]). Accordingly, Supreme Court properly granted defendant's motion forsummary judgment dismissing plaintiff's complaint [*4]against him. Plaintiff's remaining arguments, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
Lahtinen, J.P., Lynch and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1:The net proceeds fromthe sale amounted to $18,428.96.
Footnote 2:According to SupremeCourt, plaintiff and her brother subsequently became dissatisfied with the terms of theannuity payments and successfully negotiated a restructuring of the payout schedule.
Footnote 3:Benjamin Sutchcommenced a similar action against, among others, the law firm that representedSutch-Lenz and decedent in the medical malpractice action and, thereafter,Sutch-Lenz—in her capacity as decedent's administrator—in the context ofboth the medical malpractice and wrongful death actions (Sutch v Sutch-Lenz,129 AD3d 1137 [2015] [decided herewith]).