| Scarborough v Napoli, Kaiser & Bern, LLP |
| 2009 NY Slip Op 04475 [63 AD3d 1531] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Michael J. Scarborough, Jr., as Administrator of the Estate ofMichael J. Scarborough, Sr., Deceased, Respondent-Appellant, v Napoli, Kaiser & Bern, LLP, etal., Appellant-Respondents, and Randolph D. Janis et al.,Respondents. |
—[*1] Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Oswego County (Norman W.Seiter, Jr., J.), entered February 15, 2008 in a legal malpractice action. The order, among otherthings, granted in part plaintiff's cross motion for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in its entirety and reinstating the amended complaint against defendantsRandolph D. Janis, Melinda Ruth Alexis and Wilson, Elser, Moskowitz, Edelman & Dicker LLP,as temporary administrator of the estate of Bradley C. Abbott, deceased, and by denying thecross motion in its entirety and as modified the order is affirmed without costs.
Memorandum: Following the death of his father, plaintiff retained defendants, a law firm,two partners and three associates, to prosecute a medical malpractice action against variousdoctors, hospitals and clinics (collectively, underlying medical defendants). It is undisputed thatthere is only one medical defendant whose negligence potentially could support the underlyingmedical malpractice action (underlying medical defendant). The medical malpractice action wasdismissed against the underlying medical defendants after defendants failed to file a timely noteof issue. Following the dismissal of that action, defendants asked plaintiff to sign a stipulation ofdiscontinuance with respect to the underlying action, which in fact had already been dismissed.According to plaintiff, he was informed that he could not prevail in his underlying action but wasnever informed that the action already had been dismissed as a result of defendants' failure to file[*2]a timely note of issue. Subsequently, a member of defendants'firm telephoned plaintiff and told him the actual basis for the dismissal of the underlying action.
Plaintiff thereafter commenced this action asserting causes of action for legal malpracticeand for treble damages pursuant to Judiciary Law § 487. Defendants moved for summaryjudgment dismissing the amended complaint in its entirety on the ground that no acts oromissions by the underlying medical defendants were the proximate cause of the death ofplaintiff's father, an essential element of a cause of action for legal malpractice. Alternatively,defendants sought summary judgment dismissing the amended complaint against Randolph D.Janis, Melinda Ruth Alexis and Bradley C. Abbott (collectively, associate defendants) on theground that they were associates rather than partners of defendant law firm and thus were notlegally responsible for any legal malpractice. Plaintiff cross-moved for partial summaryjudgment on liability on the legal malpractice cause of action. We note that one of the associatedefendants died after the action was commenced, and a temporary administrator was substitutedas a defendant to represent his estate. Supreme Court granted the alternative relief sought bydefendants by granting that part of the motion for summary judgment dismissing the amendedcomplaint against the two remaining associate defendants and the temporary administrator of theestate of the deceased associate defendant. The court granted plaintiff's cross motion for partialsummary judgment on liability on the legal malpractice cause of action against the remainingdefendants. We conclude that the court erred in granting the alternative relief sought bydefendants and in granting plaintiff's cross motion with respect to defendant law firm and thetwo partners, and we therefore modify the order accordingly.
Contrary to the contention of defendants, the court erred in granting the alternative reliefsought in their motion. Partnership Law § 26 (c) (i) provides that "each partner, employeeor agent of . . . a registered limited liability partnership" may be individually liablefor, inter alia, his or her negligent or wrongful act. Defendants failed to meet their initial burdenof establishing as a matter of law that the associate defendants committed no negligent orwrongful act for which they could be individually liable. We thus reinstate the amendedcomplaint against the two remaining associate defendants and the temporary administrator of theestate of the deceased associate.
Contrary to the further contention of defendants, the court properly determined that none ofthe defendants is entitled to summary judgment dismissing the Judiciary Law § 487 causeof action. That statute provides in relevant part that an attorney who is "guilty of any deceit orcollusion, or consents to any deceit or collusion, with intent to deceive the court or any party. . . [i]s guilty of a misdemeanor, and . . . he [or she] forfeits to theparty injured treble damages, to be recovered in a civil action." (Judiciary Law § 487.) "Aviolation of Judiciary Law § 487 may be established 'either by the defendant's allegeddeceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant' "(Izko Sportswear Co., Inc. v Flaum,25 AD3d 534, 537 [2006]; seeAmalfitano v Rosenberg, 12 NY3d 8 [2009]; Schindler v Issler & Schrage, 262AD2d 226 [1999], lv dismissed 94 NY2d 791 [1999], rearg denied 94 NY2d 859[1999]). Here, the documents submitted by defendants in support of their motion establish thatsome of the attorneys at defendant law firm engaged in intentional deceit, and thus by their ownsubmissions defendants defeated their entitlement to summary judgment dismissing that cause ofaction.
Finally, we conclude that neither plaintiff nor any defendant is entitled to summary judgmentwith respect to the merits of the legal malpractice cause of action. Inasmuch as there arecompeting expert affidavits "raising an issue of fact . . . whether plaintiff wouldhave been successful in the underlying medical malpractice action," neither plaintiff nordefendants are entitled to summary judgment (Gotay v Breitbart, 58 AD3d 25, 30 [2008]; see Leadbeater v Peters, Berger, Koshel &Goldberg, P.C., 40 AD3d 713, 713-714 [2007]). Contrary to the contention of [*3]plaintiff, he did not establish his entitlement to judgment as amatter of law on the theory that defendants' negligence caused him to lose a viable settlementopportunity. Although plaintiff submitted evidence that the attorney for the underlying medicaldefendant was considering a settlement with plaintiff, there is no evidence in the record of anoffer of settlement by the underlying medical defendant, and thus plaintiff's contention is basedon mere speculation (see e.g. Bauza vLivington, 40 AD3d 791, 793 [2007]; Masterson v Clark, 243 AD2d 411, 412[1997]; cf. Silva v Worby, Groner,Edelman, LLP, 54 AD3d 634 [2008]). Present—Martoche, J.P., Smith, Centra,Fahey and Pine, JJ.