| Northrop v Thorsen |
| 2007 NY Slip Op 10124 [46 AD3d 780] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Frances Northrop, Respondent, v Eric Ole Thorsen,Appellant. |
—[*1] Peter A. Joseph, New York, N.Y., for respondent.
In an action to recover damages for legal malpractice, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Rockland County (Liebowitz, J.), datedJanuary 2, 2007, as denied that branch of his motion which was for summary judgmentdismissing the complaint.
Ordered that the order is modified, on the law, by adding a provision thereto searching therecord and awarding the plaintiff summary judgment on the issue of liability; as so modified, theorder is affirmed insofar as appealed from, with costs to the plaintiff.
The defendant represented the plaintiff in an action to recover damages for personal injuriesshe allegedly sustained in a work-related accident. As a result of her accident, the plaintiff wasentitled to workers' compensation benefits. The defendant, however, settled the personal injuryaction through binding arbitration without first obtaining the consent of the plaintiff's workers'compensation carrier, PRM Claim Services, Inc. (hereinafter PRM), or a court-issuedcompromise order, as required by Workers' Compensation Law § 29 (5).
Subsequently, a representative of PRM advised the defendant by letter that he had improperlyignored PRM's lien in settling the personal injury action without PRM's permission, even thoughPRM had sent the defendant several notices of the lien. After receiving a copy of PRM's letter tothe defendant, the plaintiff became concerned about losing her workers' compensation [*2]benefits and, after several unsuccessful attempts to contact thedefendant by telephone, the plaintiff sent a letter to the defendant, expressing confusion over theposition being taken by PRM, and seeking the defendant's guidance as to "how I stand in all ofthis." In a responsive letter, the defendant advised the plaintiff that "I do not represent you inconnection with the PRM claim; rather, that will be handled through your Worker's[sic]Compensation attorney."
Thereafter, an attorney representing the plaintiff before the Workers' Compensation Board(hereinafter the workers' compensation attorney) advised the defendant, by letter, that, becausethe defendant had agreed to binding arbitration in the tort litigation without first obtaining PRM'sconsent, the plaintiff would be "precluded from any future benefits." The letter further stated that"you can make an application under § 29 of the Workers' Compensation Law to the courtfor nunc pro tunc consent," and recommended that the defendant do so as soon as possible toavoid a potential claim of laches. In addition, the workers' compensation attorney offered to havehis own firm "act in an 'of counsel' capacity to [the defendant] in dealing with these issues." In aletter to the workers' compensation attorney dated 17 days later, the defendant stated, inter alia,that he was actively engaged in a trial and would remain so engaged until sometime the followingweek, and that "[i]n the interim, I would appreciate your doing whatever work is necessary tobegin the process of moving the Supreme Court for a nunc pro tunc order approving theagreement to arbitrate." No application for nunc pro tunc judicial approval of the settlement wasever made, and the plaintiff's workers' compensation benefits, which included weekly workers'compensation payments, as well as her medical coverage, were terminated.
The plaintiff subsequently commenced this action against the defendant to recover damagesfor legal malpractice, alleging that her workers' compensation benefits were terminated as a resultof his negligence. After the plaintiff failed to respond to his demand for expert witnessdisclosure, the defendant moved to preclude the plaintiff from offering expert testimony at trial,and for summary judgment dismissing the complaint. In the order appealed from, the SupremeCourt, while granting that branch of the defendant's motion which was to preclude the plaintifffrom offering expert testimony, denied that branch of the motion which was for summaryjudgment dismissing the complaint. The defendant appeals from so much of the order as deniedthat branch of his motion which was for summary judgment.
In an action to recover damages for legal malpractice, "a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession' and that the attorney's breach of this duty proximately causedplaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]). To establishcausation, "a plaintiff must show that he or she would have prevailed in the underlying action orwould not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne,Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Expert testimony is normally needed toestablish that the attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession, "unless the ordinary experience of thefact-finder provides sufficient basis for judging the adequacy of the professional service, orthe attorney's conduct falls below any standard of due care" (Greene v Payne, Wood &Littlejohn, 197 AD2d 664, 666 [1993] [emphasis added; citation omitted]).
The defendant contends that he is entitled to summary judgment dismissing the complaint,since the plaintiff, having been precluded from offering expert testimony, will be unable [*3]to establish that he failed to exercise the ordinary reasonable skilland knowledge commonly possessed by an attorney. Under the circumstances of this case,however, the plaintiff need not produce expert testimony to establish that the defendant failed toexercise the requisite level of skill and knowledge. The defendant's liability is premised upon hisfailure to comply with the rule, set forth in Workers' Compensation Law § 29 (5), thatrequires either the carrier's consent or judicial approval to settle a third-party action and continuereceiving compensation benefits (see Matter of Shutter v Philips Display ComponentsCo., 90 NY2d 703, 707 [1997]; Matter of Johnson v Buffalo & Erie County PrivateIndus. Council, 84 NY2d 13, 19 [1994]; Matter of Snyder v CNA Ins. Cos., 306AD2d 677, 678 [2003]; Hargrove v Becom Real, 287 AD2d 598 [2001]; Matter ofConsolazio [Merchants Mut. Ins. Co.], 272 AD2d 614 [2000]). As a matter of law, thedefendant's disregard or ignorance of such a clearly defined and firmly established rule, includinghis failure to take appropriate action when the rule was called to his attention, fell below anypermissible standard of due care (see Deitz v Kelleher & Flink, 232 AD2d 943, 945[1996]; Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511 [1990]; cf. Greene vPayne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]).
Furthermore, the record demonstrates that, but for the defendant's failure to obtain PRM'sconsent to the settlement or a court-issued compromise order, the plaintiff's workers'compensation benefits would not have been terminated. Thus, the defendant's negligence was aproximate cause of the plaintiff's damages (see Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d at 442; Barnett v Schwartz, 47 AD3d 197 [2007]; Deitz v Kelleher & Flink, 232 AD2d at 945).
In support of his affirmative defense that the plaintiff failed to mitigate her damages, thedefendant contends that the plaintiff herself could have avoided termination of her workers'compensation benefits by making an application for nunc pro tunc judicial approval of thesettlement. The defendant, however, "may not shift to the client the legal responsibility [he] wasspecifically hired to undertake because of [his] superior knowledge" (Hart v Carro, Spanbock,Kaster & Cuiffo, 211 AD2d 617, 619 [1995]; see Cicorelli v Capobianco, 90 AD2d524 [1982], affd 59 NY2d 626 [1983]). To the extent that the defendant argues that suchan application should have been made through the workers' compensation attorney or through theplaintiff's present counsel, his argument is unavailing. This case is distinguishable from cases inwhich successor counsel continues the representation of the plaintiff in the same proceeding(see Schauer v Joyce, 54 NY2d 1 [1981]; Hoyte v Epstein, 12 AD3d 487 [2004]). Here, the plaintiff retainedthe workers' compensation attorney, not to continue the prosecution of the personal injury action,but rather to represent her in a separate matter, before a separate tribunal, and for a differentpurpose (see Sucese v Kirsch, 177 AD2d 890, 892 [1991]), and she retained her presentcounsel for the limited purpose of representing her in this legal malpractice action (seeJohnson v Berger, 193 AD2d 784, 786 [1993]). An application for nunc pro tunc approval ofa settlement is directed to the court in which the tort action was settled (see Workers'Compensation Law § 29 [5]; Matter of Johnson v Buffalo & Erie County Private Indus.Council, 84 NY2d at 19; Matter of Consolazio [Merchants Mut. Ins. Co.], 272 AD2dat 614-615), and it was in that action, and before that court, that the defendant represented theplaintiff. Thus, any duty to the plaintiff to apply for nunc pro tunc approval of the settlement wasowed by the defendant, not by the workers' compensation attorney or the plaintiff's presentcounsel (see Sucese v Kirsch, 177 AD2d at 892).
Accordingly, the attempt to persuade the defendant to correct his own error constituted areasonable effort on the plaintiff's part to mitigate her damages. Despite being made aware of hisfailure to comply with Workers' Compensation Law § 29 (5) and the consequences thereof,and receiving guidance regarding possible corrective action, the defendant declined the [*4]opportunity to attempt to rectify his error. This inaction cannot beattributed to any culpable conduct on the plaintiff's part. Rather, it was part of the defendant'smalpractice (cf. Shapiro v Butler, 273 AD2d 657, 658 [2000]).
Thus, the Supreme Court properly denied that branch of the defendant's motion which wasfor summary judgment dismissing the complaint. Furthermore, for the foregoing reasons, we findthat there are no triable issues of fact with respect to the defendant's liability for legalmalpractice. Accordingly, upon searching the record (see CPLR 3212 [b]; Merritt HillVineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]), we award summaryjudgment to the plaintiff on the issue of liability.
The parties' remaining contentions are without merit or need not be reached in light of ourdetermination. Prudenti, P.J., Fisher, Dillon and Carni, JJ., concur.