| Moormann v Perini & Hoerger |
| 2009 NY Slip Op 06518 [65 AD3d 1106] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Walter Moormann, Appellant, v Perini & Hoerger,Respondent. |
—[*1] McManus, Collura & Richter, P.C., New York, N.Y. (Scott C. Tuttle of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice and violation of JudiciaryLaw § 487, the plaintiff appeals from an order of the Supreme Court, Queens County(Grays, J.), entered June 11, 2008, which granted the defendant's motion for summary judgmentdismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing the fourth causeof action alleging violation of Judiciary Law § 487, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
On October 30, 2002, the plaintiff was arrested on a charge of driving while intoxicated, andhis vehicle was seized and later held for a felony forfeiture action. The plaintiff waived his rightto be prosecuted by indictment and, on March 18, 2003, entered a plea of guilty to operating amotor vehicle while under the influence of alcohol as a felony. He admitted during the pleaallocution that his blood alcohol content was .30 percent at the time of his arrest. Thereafter, theDistrict Attorney of Nassau County commenced an action pursuant to CPLR article 13-A,seeking forfeiture of the plaintiff's vehicle. A default judgment was entered in favor of theDistrict Attorney on July 2, 2003.
The plaintiff commenced this action against the defendant law firm, alleging that he believedthat he had retained the defendant to represent him in both the criminal proceeding and the civilforfeiture action, that he was unaware of the default judgment against him, and that the defendantrepeatedly told him that it was working to retrieve his vehicle from the County. In this regard,the defendant sent an affidavit to the plaintiff to sign in August 2004, allegedly related to theforfeiture action. The associate who sent the affidavit and the cover letter admitted, at hisdeposition, that he knew at the time that the default judgment had been entered and there was nopossibility that the plaintiff could retrieve his vehicle, but he did not so inform the plaintiff.Eventually, the plaintiff learned through other means that the default judgment had been enteredand his vehicle had been auctioned.[*2]
The Supreme Court properly granted that branch of thedefendant's motion which was for summary judgment dismissing the causes of action alleginglegal malpractice. The defendant established that the plaintiff would be unable to prove that hewould have been successful in the forfeiture action but for the alleged negligence (see Simmons v Edelstein, 32 AD3d464, 465 [2006]; Lichtenstein vBarenbaum, 23 AD3d 440 [2005]; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17AD3d 517, 519 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact.
In addition, the defendant established, prima facie, its entitlement to judgment as a matter oflaw dismissing the cause of action alleging fraud, as that cause of action was not pleaded withthe specificity required under CPLR 3016 (b) (see Dumas v Fiorito, 13 AD3d 332, 333 [2004]).
The court erred, however, in dismissing, as duplicative of the causes of action alleging legalmalpractice, the cause of action alleging violation of Judiciary Law § 487. A violation ofJudiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487),whereas a legal malpractice claim is based on negligent conduct (see Simmons vEdelstein, 32 AD3d at 465; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein,P.C., 17 AD3d at 519). Furthermore, in opposition to the defendant's establishment, primafacie, of its entitlement to judgment as a matter of law as to this cause of action, the plaintiffraised a triable issue of fact as to whether the defendant intentionally deceived him (cf. Izko Sportswear Co., Inc. v Flaum,25 AD3d 534, 537 [2006]; Knechtv Tusa, 15 AD3d 626, 627 [2005]). Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ.,concur.