| Frederick v Meighan |
| 2010 NY Slip Op 06076 [75 AD3d 528] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Robert W. Frederick, Appellant-Respondent, v JeffersonD. Meighan et al., Respondents, and Philip A. DeCaro et al.,Respondents-Appellants. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Peter T. Crean, Michael E. Gallay, andStewart G. Milch of counsel), for respondents-appellants. Furman Kornfeld & Brennan, LLP, New York, N.Y. (A. Michael Furman and Lynn M.Dukette of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from statedportions of an order of the Supreme Court, Westchester County (Giacomo, J.), dated March 18,2009, which, inter alia, denied his motion for summary judgment on the issue of liability, suasponte, directed dismissal of the complaint insofar as asserted against the defendants JeffersonD. Meighan and Meighan & Necarsulmer pursuant to CPLR 3211 (a) (4), and granted thosebranches of the cross motion of the defendants Philip A. DeCaro and DeCaro & DeCaro, P.C.,which were for summary judgment dismissing so much of the complaint as alleged that thosedefendants committed legal malpractice by failing to interpose a claim in an underlying actionfor rescission of a certain construction agreement based on mistake, by failing to interpose anaffirmative defense in the underlying action of rescission based on mistake, and by arguing on anappeal in the underlying action that the plaintiff instructed the defendants Jefferson D. Meighanand Meighan & Necarsulmer to send the construction agreement to the attorneys for the otherparties to that agreement, which argument was contrary to the plaintiff's testimony at the trial ofthe underlying action, and the defendants Philip A. DeCaro and DeCaro & DeCaro, P.C.,cross-appeal, as limited by their brief, from so much of the same order as denied that branch oftheir cross motion which was for summary judgment dismissing so much of the complaint asalleged that they committed legal malpractice by failing to advise the plaintiff of a potential legalmalpractice claim against the defendants Jefferson D. Meighan and Meighan & Necarsulmer.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so much of theorder as, sua sponte, directed dismissal of the complaint insofar as asserted against thedefendants Jefferson D. Meighan and Meighan & Necarsulmer pursuant to CPLR 3211 (a) (4) isdeemed to be an application for leave to appeal from that portion of the order, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,[*2]
Ordered that the order is modified, on the law and in theexercise of discretion, (1) by deleting the provision thereof, sua sponte, directing dismissal of thecomplaint insofar as asserted against the defendants Jefferson D. Meighan and Meighan &Necarsulmer pursuant to CPLR 3211 (a) (4), (2) by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability againstthe defendants Jefferson D. Meighan and Meighan & Necarsulmer, and substituting therefor aprovision granting that branch of the motion, (3) by deleting the provisions thereof grantingthose branches of the cross motion of the defendants Philip A. DeCaro and DeCaro & DeCaro,P.C., which were for summary judgment dismissing so much of the complaint as alleged thatthey committed legal malpractice by failing to interpose a claim in the underlying action forrescission of a certain construction agreement based on mistake, failing to interpose anaffirmative defense in the underlying action of rescission based on mistake, and arguing onappeal in the underlying action that the plaintiff instructed the defendants Jefferson D. Meighanand Meighan & Necarsulmer to send the construction agreement to the attorneys for the otherparties to that agreement, which argument was contrary to the plaintiff's testimony at the trial ofthe underlying action, and substituting therefor provisions denying those branches of the crossmotion, (4) by deleting the provision thereof denying that branch of the cross motion of thedefendants Philip A. DeCaro and DeCaro & DeCaro, P.C., which was for summary judgmentdismissing so much of the complaint as alleged that those defendants committed legalmalpractice by failing to advise the plaintiff of a potential legal malpractice claim against thedefendants Jefferson D. Meighan and Meighan & Necarsulmer, and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed insofaras appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendants appearingseparately and filing separate briefs.
In 1999 the plaintiff, a home builder, began negotiating with prospective buyers of a homehe was building, and he retained Jefferson D. Meighan of the law firm Meighan & Necarsulmer(hereinafter together the Meighan defendants) to represent him in the real estate transaction. InJanuary 2000 the plaintiff was prepared to sign a contract of sale and a separate basementconstruction agreement that had been forwarded by the buyers' attorney to Meighan's office.However, after executing the basement construction agreement, the plaintiff discovered that thebuyers had not executed the attached contract of sale, which included additional terms notpreviously agreed to in the parties' negotiations. Consequently, the plaintiff did not sign thecontract of sale, and he told Meighan that the deal with the buyers was off and to proceedaccordingly. Thereafter, Meighan received a copy of the contract of sale executed by the buyers,but the plaintiff was no longer interested in proceeding with the sale. On March 2, 2000,Meighan sent a package of documents, including the signed basement construction agreementand the contract of sale signed by the buyers but not the plaintiff, back to the buyers' attorneywith a transmittal letter advising, in effect, that the plaintiff no longer desired to sell the house tothe buyers.
The buyers thereafter commenced an action, inter alia, for specific performance of thecontract of sale (hereinafter the underlying action) against the plaintiff and the Meighandefendants. The plaintiff retained Philip A. DeCaro of the law firm DeCaro & DeCaro, P.C.(hereinafter together the DeCaro defendants), to represent him in the underlying action.Principally relying on a statute of frauds defense, DeCaro successfully moved to dismiss thecomplaint in the underlying action. However, on appeal, this Court reversed and awardedspecific performance to the buyers (seeSuchin v Frederick, 30 AD3d 503 [2006]), explaining as follows: "We agree with thebuyers that they established that the terms of the unsigned contract of sale are enforceabledespite the statute of frauds, because that contract is clearly referable to the same transaction asthe fully executed basement construction rider, which expressly stated that the parties had acontract for the seller to sell the real property to the buyers (see Crabtree v Elizabeth ArdenSales Corp., 305 NY 48 [1953]). As such, we reverse the judgment in favor of the seller, andaward the buyers specific performance of the contract of sale" (Suchin v Frederick, 30AD3d at 504).
While the underlying action was pending, the plaintiff commenced a legal malpractice actionagainst the Meighan defendants and the DeCaro defendants. Upon a motion by the DeCarodefendants, that legal malpractice action was dismissed as premature, and the plaintiff wasgranted leave to commence a second action in the event the buyers in the underlying action wereawarded damages.
Following this Court's decision on the appeal in the underlying action and the subsequentaward of damages to the buyers, the plaintiff commenced this action against the Meighandefendants and the DeCaro defendants to recover damages for legal malpractice. As against theMeighan defendants, the plaintiff principally alleged that the inclusion of the executedconstruction agreement in the package of documents sent back to the buyers' attorney constitutedlegal malpractice, as it enabled the buyers to obtain specific performance of the contract of sale(see Suchin v Frederick, 30 AD3d503 [2006]). As against the DeCaro defendants, the plaintiff principally alleged that theirfailure to interpose a rescission defense based upon mistake in the underlying action constitutedlegal malpractice. In addition, the plaintiff alleged that the DeCaro defendants' failure to advisehim of a potential legal malpractice claim against the Meighan defendants and to interpose alegal malpractice cross claim against them in the underlying action constituted legal malpractice.
At the outset, we find that the Supreme Court improvidently exercised its discretion in, suasponte, directing dismissal of the complaint insofar as asserted against the Meighan defendantspursuant to CPLR 3211 (a) (4) in view of the continued pendency of the first legal malpracticeaction against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d979, 980 [2009]; Frankel vStavsky, 40 AD3d 918, 919 [2007]).
We further find that the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the issue of liability against the Meighandefendants. In order to prevail in an action to recover damages for legal malpractice, a plaintiffmust establish that the defendant attorney failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession, and that the breach of thisduty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]). Here, in opposition to the plaintiff's primafacie showing of entitlement to judgment as a matter of law, the Meighan defendants failed todemonstrate the existence of any triable issues of fact with respect to their liability for legalmalpractice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Northrop v Thorsen, 46 AD3d780, 784 [2007]; Jampolskaya vVictor Gomelsky, P.C., 36 AD3d 761, 762 [2007]). Contrary to the Meighandefendants' contention, inasmuch as the plaintiff did not sustain "actionable injury" until thisCourt awarded the buyers specific performance in the underlying action, the plaintiff's legalmalpractice cause of action against them was not time-barred (McCoy v Feinman, 99NY2d 295, 301 [2002]; see Kerbein vHutchison, 30 AD3d 730, 732 [2006]). Also contrary to the Meighan defendants'contention, their malpractice was a proximate cause of the injury in this case. If the DeCarodefendants are found to have also committed malpractice, the Meighan defendants and theDeCaro defendants may both be liable as successive tortfeasors who each contributed to thesame injury (see Schauer v Joyce, 54 NY2d 1, 6 [1981]; Soussis v Lazer, Aptheker, Rosella &Yedid, P.C., 66 AD3d 993, 994-995 [2009]; Khlevner v Tylo, 16 Misc 3d1129[A], 2007 NY Slip Op 61628[U] [2007]).
The Supreme Court should have denied those branches of the DeCaro defendants' crossmotion which were for summary judgment dismissing so much of the complaint as alleged thatthey committed legal malpractice by failing to interpose a claim in the underlying action forrescission of the construction agreement based on mistake, by failing to interpose an affirmativedefense in the underlying action of rescission based on mistake, and by arguing on appeal in theunderlying action that the plaintiff instructed the Meighan defendants to send the constructionagreement to the attorneys for the other parties to that agreement, which argument was contraryto the plaintiff's testimony at the underlying trial. While the DeCaro defendants contend that arescission defense based on unilateral mistake would not have been successful in the underlyingaction for specific performance, specific performance may be denied based on unilateral mistake[*3]where the other party must have been aware of the mistake(see Da Silva v Musso, 53 NY2d 543, 548 [1981]; Sheridan Drive-In v State of NewYork, 16 AD2d 400, 405 [1962]; Harper, Inc. v City of Newburgh, 159 App Div695, 696-697 [1913]). However, the Supreme Court should have granted that branch of theDeCaro defendants' cross motion which was for summary judgment dismissing so much of thecomplaint as alleged that they committed legal malpractice by failing to advise the plaintiff of apotential legal malpractice claim against the Meighan defendants. As discussed above, theplaintiff lacked a viable legal malpractice claim against the Meighan defendants until this Courtawarded the buyers specific performance.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Miller, J.P., Leventhal, Chambers and Lott, JJ., concur.