| Soussis v Lazer, Aptheker, Rosella & Yedid, P.C. |
| 2009 NY Slip Op 07823 [66 AD3d 993] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Julie Soussis, Plaintiff, v Lazer, Aptheker, Rosella &Yedid, P.C., et al., Defendants and Third-Party Plaintiffs-Respondents, et al, Defendant.Benjamin Vinar, Third-Party Defendant-Appellant. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Richard Granofsky and Howard R.Cohen of counsel), for defendants and third-party plaintiffs-respondents.
In an action to recover damages for legal malpractice, the third-party defendant, BenjaminVinar, appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered June 4,2008, which denied his motion for summary judgment dismissing the third-party complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the third-party defendant which was for summary judgment dismissingso much of the third-party complaint as sought to recover damages for failure to seek leave toamend an arbitration claim to add a claim for employment discrimination and substitutingtherefor a provision granting that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
The plaintiff retained the defendant law firm, Lazer, Aptheker, Rosella & Yedid, P.C.(hereinafter the Lazer firm), in connection with her claims for unpaid commissions andunreimbursed expenses, alleging employment discrimination against her former employer,Stephens, Inc. (hereinafter Stephens), a member of the New York Stock Exchange. Thedefendant Mark Goidell, the member of the Lazer firm who handled the plaintiff's case,commenced an arbitration proceeding on her behalf with respect to, among other claims, theclaims for unpaid commissions and unreimbursed expenses but not with respect to heremployment discrimination claim. It is undisputed that Goidell failed to bring a federal or stateaction against Stephens on the plaintiff's behalf before the statute of limitations applicable to theemployment discrimination claim expired. The plaintiff retained the third-party defendantBenjamin Vinar to commence the instant action against the Lazer firm, Goidell, and two partnersin the firm, David Lazer and Ralph A. Rosella, to recover damages for legal malpractice. Whilerepresented by Vinar, the plaintiff settled her arbitration claims against Stephens.
Subsequently, the Lazer firm, David Lazer, and Rosella (hereinafter together the Lazerdefendants) impleaded Vinar, asserting claims for contribution and/or indemnification. Theyalleged that [*2]Vinar was negligent in settling the plaintiff'sarbitration claims. Specifically, they alleged that Vinar was negligent in failing to seek leave toamend the plaintiff's statement of claim in the arbitration proceeding to add the employmentdiscrimination claim. They also alleged that Vinar was negligent in failing to seek reformation ofthe National Association of Securities Dealers, Inc., Form U-5 (hereinafter the U-5), provided bythe plaintiff's employer to remove an allegedly false or defamatory statement contained thereinregarding the reason for the termination of her employment. As a result of Vinar's allegednegligence, the Lazer defendants claimed that they sustained damages in that, inter alia, theplaintiff was unable to mitigate the damages she sought from them in the form of future lostearnings by obtaining comparable employment in the securities industry. The Supreme Courtdenied Vinar's motion for summary judgment dismissing the third-party complaint. We modify.
Vinar established his prima facie entitlement to judgment as a matter of law bydemonstrating that the time-barred employment discrimination claim could not have beenasserted in the arbitration proceeding. In opposition, the Lazer defendants failed to raise a triableissue of fact. Their expert affidavit was insufficient to show that Vinar's alleged negligence infailing to seek leave to amend the arbitration claim to add the employment discrimination claimwas a proximate cause of the failure to have the employment discrimination claim heard by anappropriate tribunal, and that the plaintiff would have prevailed on it in any event (see Barnett v Schwartz, 47 AD3d197, 203-204 [2007]; Bauza vLivington, 40 AD3d 791,793 [2007]; Leder v Spiegel, 31 AD3d 266, 268 [2006], affd 9 NY3d836 [2007], cert denied 552 US — , 128 S Ct 1696 [2008]). Furthermore,the Lazer defendants failed to raise a triable issue of fact as to whether the arbitrators would havepermitted amendment to add the claim pursuant to the "relation back" doctrine. The recordestablishes that the statement of claim which initiated the arbitration proceeding gave no noticeof the transactions or occurrences underlying the employment discrimination claim (see Pendleton v City of New York, 44AD3d 733, 736 [2007]). Accordingly, the Supreme Court should have granted that branch ofVinar's motion which was for summary judgment dismissing the third-party complaint insofar asit sought damages for failure to seek leave to amend the arbitration claim to add a claim foremployment discrimination.
The Supreme Court properly denied that branch of Vinar's motion which was for summaryjudgment dismissing so much of the third-party complaint as asserted claims for contribution andindemnification. Contrary to Vinar's contention, the Lazer defendants are entitled to seekcontribution or indemnification from him, as a subsequently retained attorney, to the extent hisalleged negligence in settling the plaintiff's arbitration claims may have contributed to oraggravated her injuries (see Schauer v Joyce, 54 NY2d 1, 3-6 [1981]; Alfaro vSchwartz, 233 AD2d 281, 281-282 [1996]; Herkrath v Gaffin & Mayo, 192 AD2d487, 488 [1993]).
Furthermore, in opposition to Vinar's prima facie showing on the issue of his failure to seekreformation of the U-5, the plaintiff's deposition testimony and the Lazer defendants' expertaffidavit were sufficient to raise a triable issue of fact as to whether Vinar was negligent infailing to seek reformation and, if so, whether the plaintiff suffered a greater loss of futureearnings than she would have had the U-5 been reformed to remove the damaging informationregarding the reason for her termination from Stephens.
In view of our determination, we need not address the parties' remaining contentions. Fisher,J.P., Dillon, Covello and Dickerson, JJ., concur.