| Terio v Spodek |
| 2009 NY Slip Op 04412 [63 AD3d 719] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Denise Terio, Appellant, v Lance Roger Spodek,Appellant, and Reich Reich & Reich, P.C., Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (David L. Tillem ofcounsel), for defendant-appellant. Steinberg & Cavaliere, LLP, White Plains, N.Y. (James F. Creighton of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, (1) the plaintiff appealsfrom an order of the Supreme Court, Putnam County (O'Rourke, J.), entered March 17, 2008,which granted the motion of the defendant Reich, Reich & Reich, P.C., for leave to reargue thatbranch of its prior motion which was for summary judgment dismissing the complaint insofar asasserted against it, which had been determined in an order dated December 17, 2007, and, uponreargument, vacated its original determination in the order dated December 17, 2007, denyingthat branch of the motion of the defendant Reich, Reich & Reich, P.C., which for summaryjudgment dismissing the complaint insofar as asserted against it, and thereupon granted thatbranch of the motion; and (2) the defendant Lance Roger Spodek appeals from an order of thesame court dated March 24, 2008, which, sua sponte, in effect, directed the dismissal of his crossclaims for contribution and indemnification asserted against the defendant Reich, Reich & Reich,P.C.
Ordered that on the Court's own motion, the notice of appeal of the defendant Lance [*2]Roger Spodek is deemed to be an application for leave to appealfrom the order dated March 24, 2008, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order entered March 17, 2008 is modified, on the law, by deleting theprovisions thereof, upon reargument, vacating the determination in the order dated December 17,2007, denying that branch of the motion of the defendant Reich, Reich & Reich, P.C., which wasfor summary judgment dismissing the complaint insofar as asserted against it and thereupongranting that branch of the motion, and substituting therefor a provision, upon reargument,adhering to the original determination in the order dated December 17, 2007; and it is further,
Ordered that the order dated March 24, 2008 is reversed, on the law; and it is further,
Ordered that one bill of costs is awarded to the appellants.
Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretionin granting that branch of the motion of the defendant Reich Reich & Reich, P.C. (hereinafterReich), which was for leave to reargue. Reich's appeal from the Supreme Court's order datedDecember 17, 2007, was pending and unperfected as of the time that the motion for reargumentwas made. Under these circumstances, the Supreme Court providently entertained that branch ofReich's motion which was for leave to reargue notwithstanding that it was made beyond the30-day limit set forth in CPLR 2221 (d) (3) (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 638[2005]; Leist v Goldstein, 305 AD2d 468, 469 [2003]).
The court erred, however, upon reargument, in awarding summary judgment to Reich. Tomake a prima facie showing on a motion for summary judgment, the attorney in a legalmalpractice action must present admissible evidence that the plaintiff cannot prove at least oneof the essential elements of a legal malpractice claim (see e.g. Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2008];Shopsin v Siben & Siben, 268 AD2d 578 [2000]). To recover damages for legalmalpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship (see Velasquez v Katz, 42 AD3d566, 567 [2007]; Moran vHurst, 32 AD3d 909 [2006]; Wei Cheng Chang v Pi, 288 AD2d 378, 380[2001]; Volpe v Canfield, 237 AD2d 282, 283 [1997]). While a plaintiff's unilateralbelief does not confer upon him or her the status of client (see Volpe v Canfield, 237AD2d at 283), an attorney-client relationship may exist in the absence of a formal retaineragreement (see e.g. Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386 [2000]). Toestablish an attorney-client relationship there must be an explicit undertaking to perform aspecific task (see Wei Cheng Chang v Pi, 288 AD2d 378 [2001]; Volpe vCanfield, 237 AD2d at 283).
Here, Reich failed to establish, as a matter of law, that an attorney-client relationship was notformed and did not exist during the time that the alleged acts of negligence occurred. Reich'ssubmissions demonstrated that it consulted with the plaintiff, advised her of her chances ofsuccess, and negotiated a settlement with a bankruptcy trustee. Contrary to Reich's arguments,the fact that it was purportedly not the attorney of record at the time of a hearing before theUnited States Bankruptcy Court to determine whether the particular asset at issue qualified as anexemption, is not dispositive of the existence of an attorney-client relationship during the periodof the alleged negligence.
In light of our determination on the appeal from the order entered March 17, 2008, the [*3]order dated March 24, 2008, which, sua sponte, directed thedismissal of the cross claims of the defendant Lance Roger Spodek for contribution andindemnification against Reich must be reversed, and the cross claims must be reinstated. Rivera,J.P., Eng, Chambers and Hall, JJ., concur.