| Huffner v Ziff, Weiermiller, Hayden & Mustico, LLP |
| 2008 NY Slip Op 07831 [55 AD3d 1009] |
| October 16, 2008 |
| Appellate Division, Third Department |
| William E. Huffner, Appellant, v Ziff, Weiermiller, Hayden &Mustico, LLP, Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (David M. Gouldin of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered October 4, 2007 inChemung County, which, among other things, granted defendant's motion for summary judgmentdismissing the complaint.
In 1990, plaintiff began suffering from a debilitating spinal condition. In 1992, plaintiff, whilepracticing medicine as chair of the emergency department at Arnot Ogden Medical Center (hereinafterthe hospital), and his fellow emergency department physicians negotiated with the hospital over theirnew employment contract. Plaintiff contacted and met with an attorney at defendant's law firm regardingthe new contract. The prior employment contract provided for long-term disability insurance that wouldpay up to 60% of a physician's income in the event of a disability, with a $10,000 per month cap. Thenew contract permitted the physicians to purchase, through the hospital, long-term disability insuranceproviding for 60% of the physician's income. An attachment to the contract provided that for allsituations regarding coverage, the terms and conditions of the insurance policy will prevail. The hospitaladopted a new long-term disability policy with its insurance carrier in April 1993, retroactive to January1, 1993. The new policy increased the monthly benefits cap to $13,600, but included an exclusion forpreexisting conditions.[*2]
Plaintiff purchased the long-term disability policy in November1992 and became totally disabled in January 1993. The insurance company, consistent with the newpolicy, denied plaintiff the increased benefits cap and limited his benefits to $10,000 per month basedupon the preexisting nature of his condition. Plaintiff commenced this action alleging legal malpracticerelated to defendant's review of the contract. Defendant moved for summary judgment dismissing thecomplaint and plaintiff cross-moved for summary judgment in his favor. Supreme Court granteddefendant's motion and denied the cross motion, prompting plaintiff's appeal.
The proponent of a motion for summary judgment must establish a prima facie case by submittingproof in admissible form which eliminates any material issue of fact; only then does the burden shift tothe opponent to rebut that proof (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Candelario v Watervliet Hous.Auth., 46 AD3d 1073, 1074 [2007]). To succeed on their respective motions in this legalmalpractice claim, plaintiff was required to prove each of the elements of his cause of action anddefendant was required to establish that plaintiff could not prove at least one of the elements (cf. Guiles v Simser, 35 AD3d 1054,1055 [2006]; Tabner v Drake, 9 AD3d606, 609 [2004]). Those elements are an attorney-client relationship between the parties,negligence by defendant in its legal representation, proximate cause between defendant's negligence andplaintiff's loss, and actual and ascertainable damages suffered by plaintiff (see Guiles v Simser,35 AD3d at 1055; Tabner v Drake, 9 AD3d at 609). Here, neither party was entitled tosummary judgment.
Defendant argues that no attorney-client relationship existed because it represented the group ofphysicians, not plaintiff individually. As no written retainer agreement exists, we must "look to the wordsand actions of the parties to ascertain if an attorney-client relationship was formed" (C.K. Indus.Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [1995]). Plaintiff asserts that defendant wasrepresenting each of the physicians individually. The record does not reveal whether the physicians areorganized as any type of official entity. No one signed the contract as a representative of the physiciangroup; each physician signed on his own behalf. The bill for defendant's services was sent to and paidby the physician's group, apparently out of an organizational bank account. Plaintiff was a prior client ofdefendant and was the physician who met with defendant. He remembers mentioning to defendantdetails specific to his own medical situation concerning the disability insurance issue. The main attorneyfrom defendant's firm could not specifically recall any such discussion. Under the circumstances, theexistence of an attorney-client relationship remains an unresolved question of fact. Therefore, as plaintifffailed to prove an element of his claim, his cross motion for summary judgment was properly denied.
Defendant could still prevail on its motion by establishing that plaintiff cannot prove another elementof his claim. Defendant contends that plaintiff cannot prove proximate cause, as he cannot prove thatbetter review of the contract by defendant would have ultimately led to the hospital's adoption of along-term disability policy without exclusions. The attorney from defendant's firm avers that he wasinformed and believed that a waiver of the preexisting condition exclusion was not negotiable and couldnot have been obtained, but he fails to state the source of this information and belief. Defendant alsocontends that it is unlikely that the hospital or insurance carrier would have eliminated this exclusionfrom the policy, citing prior litigation brought by plaintiff against those entities over the contract (see e.g. Huffner v Arnot Ogden Med. Ctr.,9 AD3d 667 [2004]). Yet that litigation dealt with different issues, and there is no proof submittedfrom any representative of the hospital or insurance carrier that such a provision was nonnegotiable (compare Antokol & Coffin v Myers, 30AD3d 843, 845-846 [2006]). For example, the carrier may have been willing to issue a policywithout that exclusion for a higher [*3]premium and the hospital mayhave been willing to offer such a policy if the participating physicians were willing to pay the higherpremium. Because defendant failed to establish that plaintiff could not prove the proximate causeelement or any other element of his claim, defendant's motion for summary judgment should have beendenied.
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendant's motion for summary judgment;motion denied; and, as so modified, affirmed.