| Dupree v Voorhees |
| 2009 NY Slip Op 09184 [68 AD3d 810] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Kristin Dupree, Respondent, v Oliver Raymond VoorheesIII, Appellant, et al., Defendants. |
—[*1] Kenneth Cooperstein, Centerport, N.Y., for respondent.
In an action, inter alia, to recover damages for legal malpractice, abuse of process, andviolation of Judiciary Law § 487, the defendant Oliver Raymond Voorhees III, appeals, aslimited by his brief, from so much of an order of the Supreme Court, Suffolk County (Palmieri,J.), entered August 4, 2008, as denied that branch of his motion which was for summaryjudgment dismissing the first cause of action to recover damages for legal malpractice insofar asasserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellant's motion which was for summary judgment dismissing the first cause ofaction to recover damages for legal malpractice insofar as asserted against him is granted.
In order to prevail in an action to recover damages for legal malpractice, a plaintiff mustestablish both that the defendant attorney failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession, resulting in actualdamages to the plaintiff, and that "but for" the attorney's negligence, the plaintiff would havesucceeded on the merits in the underlying action or not have sustained any damages (AmBase Corp. v Davis Polk & Wardwell,8 NY3d 428, 434 [2007] [internal quotation marks omitted]; see Leder v Spiegel, 9 NY3d 836,837 [2007], cert denied 552 US —, 128 S Ct 1696 [2008]; Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007]; Malik v Beal, 54 AD3d 910, 911 [2008]; Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]; Barnett vSchwartz, 47 AD3d 197, 203-205 [2007]). To succeed on a motion for summaryjudgment, a defendant must establish that the plaintiff is unable to prove at least one of theessential elements of the cause of action (see Leone v Silver & Silver, LLP, 62 AD3d 962 [2009];Suydam v O'Neill, 276 AD2d 549 [2000]; Ostriker v Taylor, Atkins & Ostrow,258 AD2d 572 [1999]).
Here, the appellant demonstrated his entitlement to judgment as a matter of law (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) by establishing, prima facie, throughhis affidavit, that his failure to appear on behalf of the plaintiff on the date in question wasexcusable on the ground of lack of notice. Specifically, the record reveals that the attorneysrepresenting the plaintiff's former husband in a matrimonial action failed to provide advancenotice to the appellant, the plaintiff's [*2]former counsel in thematrimonial action and a solo practitioner, of a closing scheduled for November 21, 2003, for therefinancing of the former marital residence. Rather, on the date in question, the appellant, whowas in Suffolk County serving jury duty, received a voice mail message from one of thoseattorneys, Karyn A. Villar, advising him of a purportedly "emergency" application being madethat day before Justice John C. Bivona in the Supreme Court, Suffolk County (hereinafter themotion court). Shortly thereafter, during a break, the appellant returned Villar's call and wasinformed by Villar that the closing would be taking place later that day. The application made byorder to show cause ostensibly was to allow the former husband to effectuate the refinancingtransaction.
Although Villar advised the motion court that the appellant was unavailable, and althoughthe order to show cause had a return date of November 25, 2003, four days later, the order toshow cause was signed by the motion court on November 21, 2003. The order to show causegranted the ultimate relief requested therein, essentially appointing the former husband receiverof the plaintiff's interest in the marital residence without her consent. The former husband, afterthe closing, failed to comply with an earlier stipulation in the matrimonial action requiring himto buy out his wife's interest in the marital property for the sum of $95,000.
Notably, a copy of the order to show cause signed by the motion court was faxed to theappellant's office at 3:54 p.m., approximately one hour after the time the closing was scheduledto occur. The appellant submitted opposition papers on the return date but, necessarily, after theclosing had occurred. Under these circumstances, the appellant demonstrated the absence of anynegligence on his part.
In any event, the appellant also met his prima facie burden by demonstrating that the plaintiffwas unable to prove that, but for his alleged negligence, she would not have sustained anydamages (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; Ashton v Scotman,260 AD2d 332 [1999]). The plaintiff alleged in her complaint that the damages sustained onaccount of the alleged malpractice were in the sum of $285,000, of which $210,000 representedthe value of the fee interest in the marital residence she allegedly lost as a result of her formerhusband's alleged embezzlement of the closing funds. The remaining damages soughtrepresented the alleged attorneys' fees incurred as a result of the malpractice. It is undisputed thatthe plaintiff, in a later settlement negotiated after the former husband breached the earlierstipulation, received the sum of $235,000, a recovery far in excess of the $95,000 she originallyhad agreed to receive for her interest in the marital residence pursuant to the earlier stipulation.
The affidavits submitted in opposition were of the plaintiff, the attorney who was substitutedfor the appellant in the matrimonial action upon the appellant's release from representation, andthe plaintiff's counsel on this motion and appeal. None of those parties possessed personalknowledge of what transpired on the day in question (see Simplex Grinnell, LP v Ruby Weston Manor, 59 AD3d 610,611 [2009]; Gerard Lollo & Sons v Stern, 168 AD2d 606, 607 [1990]). Further, as to theassertion made by the plaintiff's present counsel that the attorney who represented the formerhusband at the closing told him that the appellant failed to return telephone calls, therebyprecipitating the purportedly "emergency" application to the motion court, such assertionconstituted inadmissible hearsay (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). Moreover, we disagree with the conclusion of the plaintiff's "expert"witness, the attorney who was substituted for the appellant in the matrimonial action and whoincurred the fees sought in this litigation, that, under the circumstances presented, the appellant'sfailure to appear on the date in question was negligence.
Further, although the plaintiff speculated that the additional attorneys' fees sought would nothave been incurred had the appellant appeared in court on the day the order to show cause wassigned, mere speculation about a loss resulting from an attorney's alleged omission is insufficientto sustain a prima facie case of legal malpractice (see Siciliano v Forchelli & Forchelli, 17 AD3d 343, 345 [2005];Pellegrino v File, 291 AD2d 60, 63 [2002]; Giambrone v Bank of N.Y., 253AD2d 786 [1998]; Luniewski v Zeitlin, 188 AD2d 642 [1992]).[*3]
Thus, the plaintiff, in opposition, failed to raise a triableissue of fact (see Crawford v McBride, 303 AD2d 442 [2003]; Pirro & Monsell vFreddolino, 204 AD2d 613 [1994]). Accordingly, the Supreme Court should have grantedthat branch of the appellant's motion which was for summary judgment dismissing the first causeof action to recover damages for legal malpractice insofar as asserted against him (see Teodorescu v Resnick & Binder, P.C.,55 AD3d 721, 723 [2008]). Skelos, J.P., Eng, Leventhal and Chambers, JJ., concur.