| Wilk v Lewis & Lewis, P.C. |
| 2010 NY Slip Op 05897 [75 AD3d 1063] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| James Wilk et al., Respondents, v Lewis & Lewis, P.C., etal., Appellants. |
—[*1] The McGorry Law Firm, LLP, Buffalo, Lippes Mathias Wexler Friedman LLP (Kenneth R.Kirby of counsel), for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), enteredMarch 23, 2009 in a legal malpractice action. The order denied the motion of defendants forsummary judgment and granted the cross motion of plaintiffs for partial summary judgment tothe extent that malpractice is established against defendants.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the legal malpractice cause of action insofar as thatcause of action is asserted with respect to the defendant Ford Motor Company in the underlyingaction, and by denying that part of the cross motion for partial summary judgment on liability onthe legal malpractice cause of action insofar as that cause of action is asserted with respect tothat defendant in the underlying action and as modified the order is affirmed without costs.
Memorandum: James Wilk (plaintiff) was allegedly injured while repairing railroad cars, andhe retained defendants to represent him, along with his wife, in seeking damages for thoseinjuries. Defendants commenced a pre-action discovery proceeding against plaintiff's employerto obtain information concerning the accident and, when defendants thereafter commenced aLabor Law and common-law negligence action on behalf of plaintiffs (hereafter, underlyingaction), they used the same index number that had been used in the pre-action discoveryproceeding. Supreme Court granted the motions of the defendants in the underlying action(Labor Law defendants) to dismiss the complaint. Under the law at that time, the failure topurchase a new index number rendered the action a nullity because it was never properlycommenced (see Chiacchia & Fleming v Guerra, 309 AD2d 1213, 1214 [2003], lvdenied 2 NY3d 704 [2004]). No appeal was taken by plaintiffs from that order, althoughplaintiffs retained other attorneys (plaintiffs' successor counsel) shortly prior to the expiration ofthe time in which to take an appeal. Plaintiffs commenced a second Labor Law and common-lawnegligence action against the Labor Law defendants, who moved to dismiss the complaint astime-barred. We previously reversed an order denying those motions and instead granted themotions and dismissed the [*2]complaint (Wilk v Genesee & Wyoming R.R. Co.,45 AD3d 1274 [2007]). We concluded that the second action did not relate back to the filingof the underlying action pursuant to CPLR 205 (a) because the failure to purchase a new indexnumber rendered the underlying action a nullity (id. at 1275).
Plaintiffs commenced the instant legal malpractice action seeking damages arising from thedismissal of the underlying action. Defendants appeal from an order denying their motion forsummary judgment dismissing the complaint and granting plaintiffs' cross motion for partialsummary judgment "to the extent that malpractice is established against . . .defendants." That was error only insofar as the malpractice cause of action is asserted withrespect to the defendant Ford Motor Company (Ford) in the underlying action. We thereforemodify the order accordingly.
"To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the defendant attorney failed to exercise 'the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal community, and that the attorney's breach of[that] duty proximately caused plaintiff to sustain actual and ascertainable damages' " (Velie v Ellis Law, P.C., 48 AD3d674, 675 [2008], quoting Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The plaintiff mustalso establish that he or she "would have succeeded on the merits of the underlying action 'butfor' the attorney's negligence" (AmBaseCorp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). "To succeed on a motionfor summary judgment, the defendant in a legal malpractice action must present evidence inadmissible form establishing that the plaintiff is unable to prove at least one of [those] essentialelements" (Velie, 48 AD3d at 675). Here, defendants submitted evidence in support oftheir motion establishing that Ford "is not an owner or contractor and that it lacked 'contractualor other actual authority to control the activity bringing about [plaintiff's] injury' " (Scally v Regional Indus. Partnership, 9AD3d 865, 867-868 [2004]). Thus, they met their initial burden of establishing thatplaintiffs would not have succeeded in the underlying action against Ford "but for" theirnegligence (see AmBase Corp., 8 NY3d at 434), and plaintiffs failed to raise a triableissue of fact with respect thereto.
Contrary to the further contention of defendants, the court properly denied those parts oftheir motion seeking dismissal of the instant complaint with respect to their failure to commencethe underlying action against the remaining Labor Law defendants in a timely manner. In theiranswer to the instant complaint, defendants admitted that they used the same index number tocommence the underlying action that had been previously used to commence the pre-actiondiscovery proceeding. The failure to commence the underlying action in a timely manner, absentfactors not at issue here, is sufficient to establish that defendants "failed to exercise 'the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal community' "(Velie, 48 AD3d at 675, quoting Rudolf, 8 NY3d at 442).
Defendants also failed to establish that plaintiffs could not prove the remaining elements of alegal malpractice cause of action. Defendants contend that their negligence was not a proximatecause of plaintiffs' injuries because plaintiffs' successor counsel did not file a notice of appealwhen the Court of Appeals issued its decision in Harris v Niagara Falls Bd. of Educ. (6 NY3d 155 [2006]). Wereject that contention. Defendants are correct that the Court of Appeals changed the law byholding in Harris that a defendant could waive a defect in connection with filingrequirements such as the failure to purchase a new index number (see id. at 159). Evenassuming, arguendo, however, that we agree with defendants that the time within whichplaintiffs could file a notice of appeal expired 35 days after the final Labor Law defendant hadserved the order dismissing the first complaint against the Labor Law defendants (see Blankv Schafrann, 206 AD2d 771, 773 [1994]; Williams v Forbes, 157 AD2d 837,838-839 [1990]; Dobess Realty Corp. v City of New York, 79 AD2d 348, 352,appeal dismissed 53 NY2d 1054, 54 NY2d 754 [1981]), we note that the time in whichto file a notice of appeal against that final Labor Law defendant expired [*3]approximately 30 hours after the Harris decision wasissued. It cannot be said that the failure of plaintiffs' successor counsel to learn of the Harrisdecision and file a notice of appeal within that narrow time period constituted an"intervening and superseding failure of plaintiff[s'] successor [counsel]" to file a timely notice ofappeal (Pyne v Block & Assoc., 305 AD2d 213 [2003]). Defendants thus failed toestablish that "plaintiff[s'] successor counsel had sufficient time and opportunity to adequatelyprotect plaintiff[s'] rights" (Somma vDansker & Aspromonte Assoc., 44 AD3d 376, 377 [2007]; cf. Ramcharan v Pariser, 20 AD3d556, 557 [2005]; Albin v Pearson, 289 AD2d 272 [2001]).
Contrary to the further contention of defendants, the court did not abuse its discretion inconsidering the cross motion of plaintiffs for partial summary judgment on liability despite theirfailure to submit the cross motion in proper form. In any event, defendants moved for summaryjudgment, and it is well settled that, "[i]f it shall appear that any party other than the movingparty is entitled to a summary judgment, the court may grant such judgment without thenecessity of a [cross motion]" (CPLR 3212 [b]; see Dunham v Hilco Constr. Co., 89NY2d 425, 429-430 [1996]; JCSControls, Inc. v Stacey, 57 AD3d 1372, 1373 [2008]).
Finally, defendants' remaining contention concerning the issues of contribution andindemnification is not properly before us. Neither the motion nor the cross motion sought reliefwith respect to those issues, and said issues may not be raised for the first time on appeal (seeCiesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). Present—Smith, J.P.,Fahey, Carni, Sconiers and Pine, JJ.