| Scartozzi v Potruch |
| 2010 NY Slip Op 03102 [72 AD3d 787] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Michelle G. Scartozzi, Appellant, et al.,Plaintiff, v Alexander Potruch et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Nicole Feder of counsel),for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff Michelle G.Scartozzi appeals from so much of a judgment of the Supreme Court, Suffolk County (Whelan,J.), dated May 14, 2008, as, upon so much of an order of the same court dated February 2, 2005,as denied her motion for summary judgment on the first and fourth causes of action, and upon somuch of an order of the same court dated February 22, 2008, as granted that branch of thedefendants' motion which was for summary judgment dismissing the complaint insofar asasserted by her, is in favor of the defendants and against her dismissing the complaint.
Ordered that the judgment is modified, on the law, by deleting the provisions thereof whichare in favor of the defendants and against the plaintiff Michelle G. Scartozzi dismissing the firstcause of action insofar as it alleges legal malpractice and the third cause of action insofar as italleges legal malpractice in failing to present certain evidence at trial in the matrimonial action;as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, the order dated February 22, 2008, is modified accordingly, and the first cause ofaction insofar as it alleges legal malpractice and the third cause of action insofar as it allegeslegal malpractice in failing to present certain evidence at trial in the matrimonial action aresevered.
Contrary to the contention of the plaintiff Michelle G. Scartozzi (hereinafter the plaintiff),the Supreme Court properly denied, in its order dated February 2, 2005, those branches of hermotion which were for summary judgment on the issue of liability on the first and fourth causesof action. Although an attorney's affirmation may suffice as expert opinion establishing "[a] basisfor judging the adequacy of professional service" in a legal malpractice action (Zasso vMaher, 226 AD2d 366, 367 [1996]), the attorney's affirmation submitted in support of theplaintiff's motion was insufficient to show, prima facie, that the defendants were negligent inadvising the plaintiff to waive, in the underlying matrimonial action, her right pursuant toDomestic Relations Law § 237 (a) to request an award of counsel fees with respect to priorcounsel who represented her in that action. Moreover, the plaintiff failed to establish her primafacie entitlement to judgment as a matter of law on the fourth cause of action, pursuant to whichshe alleged that, in the matrimonial action, the Supreme Court fixed the defendants' fees at$90,000 and that, therefore, they were not entitled to recover any additional fees. In view of theplaintiff's failure to demonstrate her prima facie entitlement to judgment as a matter of law, weneed not consider the sufficiency of the opposing [*2]papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court properly granted those branches of the defendants' motion which werefor summary judgment dismissing the fourth cause of action, as well as the fifth cause of actionalleging that the defendants improperly entered into a stipulation with prior counsel on theplaintiff's behalf. In opposition to the defendants' prima facie showing with respect to thosecauses of action, the plaintiff failed to raise a triable issue of fact.
Furthermore, as the defendants correctly argue, so much of the first cause of action asalleged, and the second cause of action alleging, breach of contract were duplicative of the causeof action alleging legal malpractice, as there was no evidence that the defendants promised toobtain a particular result (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen,303 AD2d 561, 562 [2003]). Accordingly, the Supreme Court properly dismissed the secondcause of action, and the first cause of action insofar as it alleged breach of contract.
However, the Supreme Court erred in granting that branch of the defendants' motion whichwas for summary judgment dismissing the first cause of action insofar as it alleged legalmalpractice. Contrary to the defendants' contention, the Supreme Court erred in determining thatcollateral estoppel barred the plaintiff from challenging as legal malpractice the defendant'sadvice that she waive her right to seek prior counsel fees in the matrimonial action because shesought, unsuccessfully, to set aside the stipulation waiving the fees. In order to invoke thedoctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in theprior action and be decisive of the present action, and (2) the party to be precluded fromrelitigating the issue must have had a full and fair opportunity to contest the prior determination(see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Franklin Dev. Co., Inc. v Atlantic Mut. Ins.Co., 60 AD3d 897, 899 [2009]). Here, the issue of whether the stipulation could be setaside was not identical to the issue of whether the defendants were negligent in advising theplaintiff to waive the fees. Thus, the plaintiff is not precluded from asserting a cause of actionalleging legal malpractice based on the defendants' allegedly negligent advice (see Bishop v Maurer, 9 NY3d910, 911 [2007]).
To succeed on a motion for summary judgment dismissing the complaint in a legalmalpractice action, the defendant must present evidence in admissible form establishing that theplaintiff is unable to prove at least one essential element of his or her cause of action alleginglegal malpractice (see Boglia vGreenberg, 63 AD3d 973, 974 [2009]; Fasanella v Levy, 27 AD3d 616 [2006]; Suydam v O'Neill,276 AD2d 549, 550 [2000]). Here, the defendants failed to demonstrate their prima facieentitlement to judgment as a matter of law by presenting admissible evidence establishing thatthe plaintiff could not prove that, in advising her to waive her right to request an award of herprior counsels' fees, they "failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession" (McCoy v Feinman, 99 NY2d295, 301 [2002]).
The defendants demonstrated their prima facie entitlement to judgment as a matter of lawdismissing the third cause of action insofar as it alleged that they were negligent in givingincorrect information to successor counsel concerning the date by which the plaintiff's motionpursuant to CPLR 4404 had to be filed. In opposition, the plaintiff failed to raise a triable issueof fact. However, the defendants failed to demonstrate their prima facie entitlement to judgmentas a matter of law on the third cause of action insofar as it alleged that the defendants failed topresent certain evidence at trial.
Since the defendants were not entitled to summary judgment dismissing the first and thirdcauses of action in their entirety, we modify the judgment accordingly.
In light of our determination, we need not reach the parties' remaining contentions. Dillon,J.P., Florio, Leventhal and Roman, JJ., concur.