| Alaimo v McGeorge |
| 2010 NY Slip Op 00053 [69 AD3d 1032] |
| January 7, 2010 |
| Appellate Division, Third Department |
| Minette Alaimo et al., Respondents, v Alan McGeorge,Appellant. |
—[*1]
McCarthy, J. Appeal from an order of the Supreme Court (Cahill, J.), entered January 8,2009 in Sullivan County, which denied defendant's motion to dismiss the amended complaint.
In 1999, plaintiffs, acting pro se, initiated a personal injury action against the Tri-ValleyCentral School District. On or about May 15, 2004, plaintiffs retained defendant to prosecutetheir claims. Approximately one month later, plaintiffs' action was struck from the trial calendarbecause plaintiffs did not have an expert medical witness. Plaintiffs were given one year torestore the case to the calendar but failed to timely comply, and defendant subsequently refundedplaintiffs' retainer and terminated the representation. Six months after their time to do so hadexpired, plaintiffs moved, pro se, to restore the case to the calendar. Supreme Court (Meddaugh,J.) denied the motion and dismissed the case with prejudice retroactive to June 14, 2005, findingthat plaintiffs "set forth no meritorious claim . . . [and] no reasonable excuse fortheir failure to restore the case to the calendar within [one] year of the case being struck."Plaintiffs' subsequent pro se submission, attaching affidavits, letters and reports from plaintiffs'medical providers was deemed a motion to renew/reargue. In denying that motion, the courtnoted that the papers submitted with that application "were couched in only the most conclusoryterms and failed to establish any causal connection between any allegedly improper conduct by[the school district] and the [infant's] medical conditions."
Plaintiffs then commenced this legal malpractice action against defendant, alleging that hefailed to take steps required to preserve their claims, including securing necessary medical [*2]testimony, and that he actively concealed the dismissal of theaction from plaintiffs. Prior to answering, defendant moved to dismiss the complaint based oncollateral estoppel, documentary evidence and failure to state a cause of action (seeCPLR 3211 [a] [1], [5], [7]). Supreme Court rejected defendant's collateral estoppel claim anddenied defendant's motion to dismiss. For the reasons stated below, we affirm.
The essential ingredients of collateral estoppel are " '[f]irst, the identical issue necessarilymust have been decided in the prior action and be decisive of the present action, and second, theparty to be precluded from relitigating the issue must have had a full and fair opportunity tocontest the prior determination' " (Matter of Juan C. v Cortines, 89 NY2d 659, 667[1997], quoting Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]). It is well settledthat " '[t]he party seeking the benefit of collateral estoppel has the burden of demonstrating theidentity of the issues in the present litigation and the prior determination' " (Matter of Juan C.v Cortines, 89 NY2d at 667, quoting Kaufman v Eli Lilly & Co., 65 NY2d at 456).For collateral estoppel to apply, it is "critical that the issues are identical" (People vRoselle, 84 NY2d 350, 357 [1994]; see Ryan v New York Tel. Co., 62 NY2d 494,500-501 [1984]).
Defendant's attempt to invoke collateral estoppel is unavailing. Plaintiffs' motion to restoretheir case against the school district to the calendar required a showing of merit sufficient toestablish a triable issue of fact (see Alise v Colapietro, 119 AD2d 921, 922 [1986]) andconclusory allegations are inadequate in that setting (see Fountain v Village ofCanastota, 219 AD2d 781, 782 [1995]). In contrast, on defendant's motion to dismiss,plaintiffs' allegations, including conclusory allegations in supporting affidavits, are deemed to betrue (see Berry v Ambulance Serv. ofFulton County, Inc., 39 AD3d 1123, 1124 [2007]). Defendant, therefore, failed to carryhis burden to establish an identity of issues between the two actions and is not entitled to invokethe doctrine of collateral estoppel (see Cary v Fisher, 149 AD2d 890, 891 [1989]).
On the record before us, plaintiffs have stated a cause of action for legal malpractice. " 'Inorder to sustain a claim for legal malpractice, a plaintiff must establish both that the defendantattorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed bya member of the legal profession which results in actual damages to a plaintiff, and that theplaintiff would have succeeded on the merits of the underlying action "but for" the attorney'snegligence' " (Leder v Spiegel, 9NY3d 836, 837 [2007], cert denied sub nom. Spiegel v Rowland, 552 US —, 128 S Ct 1696 [2008], quotingAmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428, 434 [2007]). Although plaintiffs' evidence may be insufficientto withstand a motion for summary judgment, on an unconverted preanswer motion to dismiss,plaintiffs' allegations are accepted as true and are entitled to the benefit of every reasonableinference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v OrofinoRealty Co., 40 NY2d 633, 634 [1976]).
Plaintiffs' malpractice complaint alleged that defendant's failure to timely perfect their causeof action or obtain relevant and available medical evidence breached the applicable standard ofcare and caused their meritorious action to be dismissed, which defendant then concealed fromplaintiffs, resulting in plaintiffs' loss of a $30 million claim. The medical evidence that plaintiffssubmitted in their pro se attempt to restore the action to the calendar stated that the infant'smedical conditions were attributable to the school district's actions. Such evidence, together withthe allegations in the complaint and favorable inferences drawn thereon (see Arnav Indus.,Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 [*3]NY2d 300, 303-304 [2001]) adequately state a claim for legalmalpractice (see Soule v Lozada, 232 AD2d 825, 825 [1996]).
We have considered defendant's remaining contentions and find them to be without merit.
Spain, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.