| Suppiah v Kalish |
| 2010 NY Slip Op 06540 [76 AD3d 829] |
| September 7, 2010 |
| Appellate Division, First Department |
| Abeyakaran Janakan Suppiah, Appellant, v Mark C.Kalish, Respondent. |
—[*1] Morrison Mahoney LLP, New York (Demi Sophocleous of counsel), forrespondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered April 1, 2009,which granted defendant's motion for summary judgment dismissing the complaint, reversed, onthe law, without costs, the motion denied, and the complaint reinstated.
Plaintiff, a native of Sri Lanka, originally came to the United States on a student visa. In1997, after completing his studies in electrical engineering, plaintiff accepted a job with nonpartyWireless Facilities, Inc. (WFI). Defendant is an immigration attorney whom WFI regularlyengaged to handle immigration matters for its foreign employees. WFI's policy was to paydefendant's fees if its employees utilized his services. In December 1997, defendant successfullypetitioned, on plaintiff's behalf, for an H1-B nonimmigrant temporary working visa, with anexpiration date of August 1, 1999. Prior to that expiration date, defendant filed a petition thatresulted in an extension of the H1-B visa to July 15, 2002.
In or about August 1999, plaintiff stopped working for WFI. The reason for the cessation ofwork is sharply controverted by the parties. According to plaintiff, he informed WFI that he wasinterested in gaining employment elsewhere. He also maintains that WFI refused to provide himwith his original H1-B visa approval notice and other documents, which were in WFI's exclusivepossession and were necessary for him to prove his immigration status to prospective employers.Then, plaintiff claims, WFI retaliated against him by "benching" him, i.e., refusing to assign himany more work. Plaintiff alleges that the benching caused him to violate his visa, which requiredhim to work to maintain his legal immigration status. WFI denies that it benched plaintiff andclaims that it terminated him for legitimate business reasons. In December 2000, plaintiffresumed working for WFI. Plaintiff claims that the benching ended because he made clear hisdesire to continue working for WFI. WFI asserts that it simply decided to rehire plaintiff.
In May 2002, with the expiration date of his H1-B visa approaching, plaintiff askeddefendant to take steps to ensure his continued legal status. Instead of petitioning for anextension of plaintiff's existing H1-B visa, which he had done previously, defendant filed apetition for a new H1-B visa. It is unclear from the record whether plaintiff was aware of thisdecision, since defendant primarily communicated with WFI, and relied on WFI to pass relevantinformation on to plaintiff. Plaintiff now contends that he would not have agreed to defendant's[*2]chosen course of action. That is because in order to secure anew visa, as opposed to extending the current one, plaintiff would have been required to travel toSri Lanka to have the new visa validated, and he considered the political situation in that countryto be threatening. Indeed, plaintiff did refuse to leave the United States, and as a result he lost hislegal immigration status in February 2003, forcing WFI to terminate him. As it turned out,plaintiff would have had difficulty traveling to Sri Lanka after February 2002, when his passportexpired.
Plaintiff commenced this action against defendant, alleging that defendant committed legalmalpractice by seeking to renew, rather than extend, his legal status. After the completion ofdiscovery, defendant moved for summary judgment. In support of his motion, defendantsubmitted the affirmation of his attorney and several exhibits. The exhibits included thedeposition transcripts of plaintiff and defendant and various records from plaintiff's WFIemployment file. The employment records were accompanied by a "Certification" executed by anemployee of WFI purporting to be authorized to authenticate the documents. Defendant arguedthat judgment in his favor was required as a matter of law because the employment recordsconclusively established that plaintiff was terminated from WFI, not benched. Therefore,defendant asserted, extending plaintiff's work visa was impossible since plaintiff could notestablish that he had been continuously employed during the period of the visa. Defendant furtherargued that plaintiff concurred in the decision to procure a new visa, and that plaintiff was solelyresponsible for the futility of that strategy since he neglected to maintain a current passport andthus could not travel abroad to validate a new visa. Finally, defendant maintained that becauseplaintiff permitted his passport to expire, summary judgment was mandated, since plaintiff wasrequired by federal law (specifically 8 CFR 214.1 [a] [3] [i]) to maintain a valid passport at alltimes in order to be entitled to extend his visa.
In opposition to the motion, plaintiff submitted his own affidavit, the affirmation of hisattorney, and the affidavit of Charles H. Kuck, Esq., an attorney purporting to be an expert inimmigration law. Plaintiff argued that the motion should be denied because the employmentrecords, upon which defendant's motion so heavily depended, were not properly certified andwere hearsay. Accordingly, he asserted, defendant failed to satisfy his prima facie burden. At oralargument of the motion, plaintiff further claimed that defendant failed to establish his right tojudgment as a matter of law in the first instance because he failed to submit the affidavit of anexpert. In any event, plaintiff argued, he raised an issue of fact through his own affidavit anddeposition testimony that he had been improperly benched. His expert explained that defendantcommitted malpractice by failing to take the position that plaintiff was benched, not terminated,and so was continuously employed. Such a position, according to Kuck, would have supported apetition for extension of the existing visa. As for the fact that plaintiff permitted his passport toexpire, Kuck stated that "[a]n expired passport is a technical violation, easily cured, and in all myyears of practice, I have never had a client deported on this basis."
The IAS court granted defendant's motion and dismissed the complaint. The court did notexpressly address plaintiff's position that defendant did not establish his prima facie entitlementto summary judgment. However, it did find that plaintiff failed to raise an issue of fact regardinghis claim that defendant committed malpractice.
We reverse because defendant failed to satisfy his prima facie burden of establishingentitlement to judgment as a matter of law. The issues in this case are not part of an ordinaryperson's daily experience, and to prevail at trial, plaintiff will be required to establish by experttestimony that defendant failed to perform in a professionally competent manner (see Menard M. Gertler, M.D., P.C. v SolMasch & Co., 40 AD3d 282 [2007]; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-CohenLLP, 23 AD3d 243 [2005]). As this is a motion for summary judgment, the burden restson the moving party—here, defendant—to establish through expert opinion that hedid not perform below the ordinary reasonable skill and care possessed by an averagemember of the legal community (see R.A.B. Contrs. v Stillman, 299 AD2d 165 [2002];Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]).Also, defendant was required, on this motion, to establish through an expert's affidavit that evenif he did commit malpractice, his actions were not the proximate cause of plaintiff's loss (see Tran Han Ho v Brackley, 69 AD3d533 [2010]). By failing to submit the affidavit of an expert, defendant never shifted theburden to plaintiff.
Defendant also failed to establish as part of his prima facie case that plaintiff waslegitimately terminated from WFI and not benched. This is the critical issue, because if plaintiffcan establish at trial that he was benched, a jury may conclude that defendant breached his dutyto plaintiff by not petitioning for an extension of plaintiff's visa. However, defendant did notsubmit the affidavit of anyone with personal knowledge of what caused plaintiff not to workbetween August 1999 and December 2000. Instead, defendant relied entirely on the WFIemployment records. However, those records were inadmissible despite having been "certified,"as the certification did not, by itself, meet the requirements of CPLR 4518 (a), i.e., show that therecords were made in the ordinary course of business, that it was the ordinary course of WFI'sbusiness to make such records, and that the records were made at the time of plaintiff's separationfrom WFI or within a reasonable time thereafter. Accordingly, they were hearsay. Becausedefendant did not identify any other nonhearsay evidence it could offer at trial to prove that WFIterminated plaintiff, the records are inadmissible for purposes of defendant's summary judgmentmotion (see Kramer v Oil Servs.,Inc., 56 AD3d 730 [2008]). Without the records, we have no basis to conclude, as amatter of law, that plaintiff was terminated, leaving defendant no option but to petition for a newvisa.
Contrary to defendant's contention, the issue of plaintiff's expired passport was not within theexperience of an ordinary factfinder. Defendant's argument that the expired passport would havebeen fatal to any effort to extend the visa relies on 8 CFR 214.1 (a) (3) (i), which provides, inpertinent part: "An alien applying for extension of stay must present a passport only if requestedto do so by the Department of Homeland Security. The passport of an alien applying forextension of stay must be valid at the time of application for extension, unless otherwiseprovided in this chapter, and the alien must agree to maintain the validity of his or her passportand to abide by all the terms and conditions of his extension." The regulation fails to state whatthe actual effect of this regulation would be on a visa extension application made by an alien withan expired passport. It is unclear whether the application would be denied outright, whether thealien would be afforded an opportunity to cure the lapse (as plaintiff's expert argued withoutopposition), or whether there would be some different consequence. Certainly the issue is beyondthe ordinary experience of a factfinder who has no familiarity with the byzantine world ofimmigration law. Accordingly, defendant, as the proponent of summary judgment, was requiredto present an expert's affidavit in order to explain [*3]exactlywhat the consequence would have been. His failure to do so should have compelled denial of themotion.
Moreover, even if it could be said that defendant, despite the lack of an expert, sustained hisprima facie burden simply by pointing to plaintiff's failure to maintain a valid passport, plaintiffraised an issue of fact sufficient to defeat the motion. Plaintiff's expert opined in his affidavit thatin his experience, the failure to maintain a valid passport has never resulted in a person's loss oflegal immigration status. Defendant failed to rebut this. Therefore, a trial is necessary todetermine whether plaintiff's actions excuse defendant from liability.
Not even defendant makes the argument, advanced by the dissent, that even assumingplaintiff was illegally benched and had a valid passport, it still would have been proper fordefendant to petition for a renewal of the visa. In any event, the argument is meritless. First, thedissent places the burden on plaintiff to explain what he was doing during the 16 months he wasnot working for WFI, when it was defendant's burden to negate the allegation in the complaintthat plaintiff was illegally benched. The dissent fails to address the fact that defendant presentednot one whit of admissible evidence that plaintiff voluntarily separated himself from WFI.
Furthermore, the dissent's view would permit an unlawful and vindictive act by an employerto work to the detriment of an innocent alien. We find it improbable that defendant would havelacked any ability to present these unique facts to immigration authorities and explain theextraordinary prejudice that would befall plaintiff were he forced to make a trip to a war-torncountry to validate a renewed visa that could have simply been extended had his employer notacted in a manner contrary to law. Even if the regulations were so inflexible, as the dissentbelieves, it would have been necessary for defendant to support his position with experttestimony explaining why even under such extreme circumstances his hands were tied. Indeed, asdiscussed above, the immigration regulations at issue here, including the section requiring a validpassport at the time an application for extension is filed, are hardly self-explanatory, nor is itpossible to conclude from their face that defendant had no chance of successfully securing anextension of plaintiff's visa. Accordingly, we reject the dissent's position that Supreme Court was"able to assess the adequacy of the legal services rendered, and require[d] no expert guidance."Concur—Mazzarelli, Acosta, DeGrasse and Richter, JJ.
Tom, J.P., dissents in a memorandum as follows: The complaint, as supplemented by theaverments contained in the affidavit, alleges that defendant committed malpractice by failing toseek extension of plaintiff's visa. The absence of an expert affidavit notwithstanding, defendantdemonstrated his entitlement to summary judgment dismissing the complaint as a matter of lawby establishing that plaintiff failed to maintain a continuous valid visa status, rendering itineligible for extension. Plaintiff, in opposition, failed to even allege, by submission of anaffidavit by someone with personal knowledge of the facts, that he met the conditions required tomaintain the validity of his visa for an extension. He thus failed to establish a prima facie case byasserting that but for defendant's alleged malpractice, his visa would have been extended.
Pursuing a cause of action for professional malpractice against an attorney requires the [*4]plaintiff to establish three elements: negligence by the attorney,which is the proximate cause of the loss sustained, and proof of actual damages (Mendoza vSchlossman, 87 AD2d 606 [1982]). If the plaintiff cannot establish that but for the allegednegligence of his attorney, a substantially better resolution of the underlying matter would havebeen achieved (see AmBase Corp. vDavis Polk & Wardwell, 8 NY3d 428, 434 [2007]), the cause of action is deficient andmust be dismissed (Katash v Richard Kranis, P.C., 229 AD2d 305, 306 [1996], lvdismissed 89 NY2d 981 [1997]). Because plaintiff's failure to satisfy one or more conditionsof his visa precluded its extension, he cannot establish that he would have been granted a visaextension but for his attorney's failure to exercise the requisite degree of professional skill andcare.
Plaintiff, a national of Sri Lanka, came to the United States on an F-1 student visa on January5, 1995, and obtained a master of science degree from Washington University in St. Louis inDecember 1996. That same month, plaintiff received employment authorization from theImmigration and Naturalization Service, enabling him to pursue optional practical training, andin March 1997 he began working as an engineer for nonparty Wireless Facilities, Inc. (WFI).Since plaintiff's employment authorization only remained valid for a period of one year, expiringon December 26, 1997, WFI began the process of filing a petition to obtain an H1-B temporarywork visa for plaintiff (see generallyRogers v Ciprian, 26 AD3d 1 [2005]). Though the I-129 application was initiated byanother law firm, it was successfully completed by defendant, and plaintiff was issued an H1-Bvisa, valid from December 30, 1997 through August 1, 1999. It is uncontested that defendantlater filed an application to renew WFI's petition, obtaining an extension of plaintiff's visathrough July 15, 2002.
According to company records, plaintiff's employment with WFI ceased in August 1999 withhis "separation," effective after his last day of work on August 15. Although the paperworkevaluates plaintiff as "Eligible for rehire," the annotation "Job Abandonment/Stop-payment ofcheck" is handwritten at the top of the form.
Plaintiff's version of the events preceding his separation is recounted by his expert and differsmarkedly. According to the affidavit of the expert, Charles H. Kuck, an attorney specializing inimmigration law, WFI took retaliatory action after plaintiff informed the company that he wishedto change jobs, at which point WFI refused to assign him any further work or provide any furthercompensation for a period of 16 months. Furthermore, WFI refused to supply documentationnecessary to enable plaintiff to obtain an H1-B visa with another employer. Kuck relates thatsuch action is known as "benching," which is illegal.
Whatever may have transpired between plaintiff and his employer to cause his separationfrom employment, it is uncontested that WFI again sought to avail itself of plaintiff's services inDecember 2000. As concerns defendant, plaintiff's only complaint up until this juncture was thatwhen he requested pertinent "immigration documents so that I could demonstrate to potentialnew employers . . . that I was eligible to work in the United States," defendant"simply advised me to take it up with WFI." While the complaint alleges only that plaintiff wasprevented from changing employers in 1999 because "WFI, without cause of [sic] legalbasis refused to give Plaintiff a copy of his renewed H1B petition approval until February, 2001,"the Kuck affidavit asserts that "Kalish's failure to give Suppiah the documents he requested was adeparture from good and accepted immigration legal practice." While Kuck asserts that defendant"should have remained in possession of Suppiah's immigration filing," he later concedes that itwas WFI that ultimately provided plaintiff with a copy of his H1-B petition. Kuck's affidavitnever explains why defendant should be held responsible for WFI's conduct, either in refusing toassist plaintiff [*5]to change employers or in terminating his workassignments and salary. Nor does Kuck attempt to demonstrate that defendant's failure to keep acopy of plaintiff's documents, separate and apart from the records maintained by WFI, constitutesmalpractice.
In any event, the misfeasance that the complaint, which was never amended, attributes todefendant as malpractice concerns events that took place in 2002, after WFI rehired plaintiff. Thepertinent facts are addressed only in the Kuck affidavit, according to which, after WFI reinstatedplaintiff, "WFI advised Suppiah that he had to leave the United States in order to obtain an H1-Bvisa stamp on his passport." Defendant then filed the disputed petition seeking a new visa ratherthan an extension of the existing visa. An internal e-mail dated March 12, 2002 from WFI'shuman resources department to plaintiff states that "WFI will file your case as a new H1B visa asto avoid any issues," and defendant's deposition testimony indicates that plaintiff's separationfrom employment warranted the filing of a new petition. In any event, the petition was approvedshortly thereafter, as indicated by a notice dated March 29, 2002 stating that a class H1-B visawould be "Valid from 07/16/2002 to 12/16/2004." The notice bears the annotation "Consulate:CHENNAI" (formerly known as Madras), which is located in southern India. The Kuck affidavitrelates that "Suppiah thereafter consulted Kalish in May 2002 for legal advice concerning hisimmigration status and to assist Suppiah in obtaining permanent residency status in the UnitedStates."
Based on plaintiff's 16-month separation from his employment with WFI, Kuck alleges, "Inlight of his benching Suppiah would have been eligible for a visa extension without leaving theUnited States . . . Kalish's failure to act on Suppiah's credible allegations ofbenching was a departure from good and accepted immigration legal practice, and was aproximate cause of Suppiah's current Un[it]ed States immigration status." Kuck does not statewhat that current status is, and this Court is left to presume that plaintiff has no passport, no visaand has remained in the United States illegally. Kuck does not explain how the alleged benchingmight have affected the visa application, and characteristically cites no authority for his inferencethat it was material to the application process.
On appeal, as on the motion, defendant takes the position that he properly filed anapplication for a new petition and visa because plaintiff did not meet the continuous employmentrequirement that otherwise would have permitted the extension of WFI's petition and plaintiff'sthen-existing visa. Plaintiff's 16-month separation from his employment with WFI makes himunqualified for a visa extension. To obtain the new visa, defendant states, plaintiff would havebeen required to depart from the United States with the visa approval notice issued March 29,2002, submit the notice and supporting documents to an American consulate outside the UnitedStates for the required H1-B visa stamp, and return to the United States to be admitted on thenew visa. Defendant asserts that plaintiff's inability to obtain a new visa was due entirely to hisfailure to abide by the conditions imposed by law on the holder of an H1-B visa.
The record supports defendant's contention that plaintiff's difficulties with his immigrationstatus resulted from his failure to comply with the requirement to present himself at a consulateoutside the United States for a visa interview. The notice of approval of the visa applicationspecifically states, "Please contact the consulate with any questions about visa issuance. THISFORM IS NOT A VISA AND MAY NOT BE USED IN PLACE OF A VISA." It isuncontroverted that plaintiff never left the United States and that no new visa ever became [*6]effective. Plaintiff's passport bears an expiration date of April 29,2002, and he conceded during his examination before trial that he never obtained a new validpassport. He further admitted that defendant took no part in processing his passport renewalapplication.
As expressed by Kuck, the conduct alleged to constitute malpractice is that defendant, onbehalf of WFI (denominated "petitioner" under regulations), could have filed for an extension ofWFI's petition for plaintiff (denominated "beneficiary" under the regulations), rather than filing anew petition. As Kuck opines, defendant "could have obtained an extension for Suppiah of hisexisting H1-B visa beyond July 15, 2002," instead of filing a new visa petition.
Kuck's contentions do not find support in the applicable regulations. "A request for a petitionextension may be filed only if the validity of the original petition has not expired" (8 CFR 214.2[h] [14]). Generally, "An extension of stay may not be approved for an applicant who failed tomaintain the previously accorded status or where such status expired before the application orpetition was filed" (8 CFR 214.1 [c] [4]). To excuse a "failure to file before the period ofpreviously authorized status expired," it must be shown, in addition to other requirements, that"[t]he alien has not otherwise violated his or her nonimmigrant status" (8 CFR 214.1 [c] [4] [ii]).A petition is subject to revocation if "[t]he beneficiary is no longer employed by the petitioner inthe capacity specified in the petition" (8 CFR 214.2 [h] [11] [iii] [A] [1]). Whether plaintiff'semployment separation with WFI was caused by self-abandonment or benching, there was clearlya 16-month break in his employment resulting in revocation of his visa and precluding visarenewal.
Kuck asserts, in conclusory fashion, that "an application for extension of the visa status. . . would have allowed Suppiah to extend his visa status without ever leaving theUnited States." However, the requirements for extension are clear and could not be met due tothe conceded 16-month break in plaintiff's employment with WFI, which rendered the company'soriginal petition invalid. If the only viable course was to petition for a new visa, defendant canhardly be faulted for pursuing it. Plaintiff, via his expert, cites no statutory or other authority insupport of the suggestion that benching might afford a beneficiary with an exception to the rulethat the validity of an H1-B visa depends upon a beneficiary's continuous employment with theemployer who petitioned for his visa. Therefore, plaintiff has provided no basis for his claim thatdefendant's failure to seek a visa extension constitutes attorney malpractice.
Nor can defendant be held liable for plaintiff's failure to obtain renewal of his passport,another condition necessary to maintaining the validity of his visa. Kuck asserts, again inconclusory fashion and without citation of authority, that "[a]n expired passport is a technicalviolation, easily cured, and in all my years of practice, I have never had a client deported on thisbasis." He asserts that the passport need only be valid at the time of application for an extension(8 CFR 214.1 [a] [3]), and that under the statute, "Suppiah only had to agree to maintain thevalidity of his passport." He offers no explanation why plaintiff's violation of his agreement "tomaintain the validity of his passport" should have no adverse effect on either the validity of histhen-existing H1-B visa or the availability of an extension. Kuck maintains that "the passport'issue' could easily have been cleared up by Suppiah briefly visiting his country to obtain acurrent passport, and then reentering the [United States] with that passport and with his currentH1-B visa prior to July 15, 2002" (the expiration date of the visa). However, Kuck fails to citeeither statute or case law for this proposition, and again presumes that plaintiff's H1-B visaremained valid (8 CFR 214.2 [h] [14]) so as to permit his reentry into the United States incompliance with the general requirement that an alien applying for an extension of admission[*7]present a valid visa to "establish that he or she is admissibleto the United States" (8 CFR 214.1 [a] [3] [i]). Where an "expert's ultimate assertions arespeculative or unsupported by any evidentiary foundation . . . the opinion should begiven no probative force and is insufficient to withstand summary judgment" (Diaz v NewYork Downtown Hosp., 99 NY2d 542, 544 [2002]).
The failure of proof on the dismissal motion lies not with defendant, but with plaintiff.Significantly, the reason for plaintiff's "separation" from his employment—whetherbenching, as plaintiff now maintains, or abandonment of his job, as WFI recordsindicate—presents a question of fact. Plaintiff has submitted no affidavit in opposition tothe motion explaining why he left WFI or what he was doing during the ensuing 16 months;nothing in the record provides an explanation, including the Kuck affidavit, which—as theaffidavit of an attorney unaccompanied by documentary evidence—is without probativevalue (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). In the absence of asubmission, in admissible form, attesting that plaintiff at all times met the conditions of his H1-Bvisa, the opposition fails to allege that but for defendant's malpractice, plaintiff could havereceived a visa extension (see YongWong Park v Wolff & Samson, P.C., 56 AD3d 351 [2008], lv denied 12 NY3d704 [2009]). The expert's submission is thus procedurally deficient, warranting dismissal of thecomplaint on that basis alone (see Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]),since plaintiff has failed to provide a viable theory of malpractice by defendant supported by therequisite factual predicate.
Plaintiff's opposition evades discussion of the circumstances under which he left WFI andwhat he was doing during the 16 months before he was rehired, and fails to address such mattersas whether he took alternative employment to support his family (a wife and a child born inFebruary 1999) during this period. The opposition to the motion only suggests, by indirection,that there was some misconduct on the part of WFI in connection with plaintiff's separation fromhis employment with the company, but neglects to supply any information to support thatintimation or to connect it to the conduct alleged to constitute malpractice. Finally, plaintiff coylyoffers only the affidavit of his purported expert in immigration law, in lieu of a sound legalargument supporting his cause of action.
This Court's decision in Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo (259AD2d 282 [1999]), on which plaintiff relies, acknowledges expert evidence regarding aprofessional's duty of care is unnecessary "where 'ordinary experience of the fact finder providessufficient basis for judging the adequacy of the professional service' " (id. at 283, quotingS & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [1988]). Here, the court is uniquelyqualified and able to assess the adequacy of the legal services rendered, and requires no expertguidance. The conclusory assertions of malpractice, such as those contained in the affidavit ofplaintiff's expert, are insufficient to raise a triable issue of fact so as to withstand summaryjudgment dismissing the action (see Margolese v Uribe, 238 AD2d 164, 166 [1997]).
Accordingly, the order should be affirmed.