| DiGiacomo v Levine |
| 2010 NY Slip Op 06566 [76 AD3d 946] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Lisa DiGiacomo, Also Known as Lisa DiGiacomo-Frangione, et al.,Appellants, v Ira Levine et al., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Noah Nunberg of counsel),for respondent Ira Levine. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Brett A. Scher ofcounsel), for respondents Hankin, Handwerker & Mazel, PLLC, and Olga Johanna Rodriguez. Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel),for respondents Michael S. Langella, P.C., and Michael S. Langella. Stanton & Guzman, LLP, Garden City, N.Y. (Jack Stanton of counsel), for respondent StaceyRinaldi Guzman.
In an action to recover damages for legal malpractice, etc., the plaintiffs appeal from (1) anorder and judgment (one paper) of the Supreme Court, Suffolk County (Jones, Jr., J.), enteredDecember 3, 2008, which granted the motion of the defendant Ira Levine to dismiss thecomplaint insofar as asserted against him pursuant to CPLR 3211 (a) (1), (5), and (7), and is infavor of that defendant and against them dismissing the complaint insofar as asserted against thatdefendant, (2) a judgment of the same court entered January 7, 2009, which, upon an order of thesame court dated October 30, 2008, inter alia, granting that branch of the motion of thedefendants Hankin, Handwerker & Mazel, PLLC, and Olga Johanna Rodriguez which was todismiss the complaint insofar as asserted against the defendant Hankin, Handwerker & Mazel,PLLC, pursuant to CPLR 3211 (a) (1) and (7), is in favor of the defendant Hankin, Handwerker& Mazel, PLLC, and against them dismissing the complaint insofar as asserted against thatdefendant, (3) a judgment of the same court entered June 24, 2009, which, upon so much of theorder dated October 30, 2008, as granted that branch of the motion of the defendants Michael S.Langella, P.C., and Michael S. Langella, which was to dismiss the complaint insofar as assertedagainst those defendants pursuant to CPLR 3211 (a) (7), and directed the severance of the actionagainst the defendant Stacey Rinaldi Guzman, is in favor of the defendants Michael S. Langella,P.C., and Michael S. Langella and against them dismissing the complaint insofar as assertedagainst those defendants, and (4) a judgment of the same [*2]court entered February 5, 2009, which, upon an order of the samecourt entered January 12, 2009, granting that branch of the motion of the defendant StaceyRinaldi Guzman which was to dismiss the complaint insofar as asserted against her pursuant toCPLR 3211 (a) (7), is in favor of that defendant and against them dismissing the complaintinsofar as asserted against that defendant.
Ordered that the order and judgment entered December 3, 2008, is affirmed; and it is further,
Ordered that the judgments entered January 7, 2009, and February 5, 2009, are affirmed; andit is further,
Ordered that the judgment entered June 24, 2009, is reversed, on the law, that branch of themotion of the defendants Michael S. Langella, P.C., and Michael S. Langella which was todismiss the complaint insofar as asserted against them is denied, the complaint is reinstatedinsofar as asserted against the defendants Michael S. Langella, P.C., and Michael S. Langella,and the order dated October 30, 2008, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the defendants Ira Levine, Hankin, Handwerker& Mazel, PLLC, and Stacey Rinaldi Guzman, payable by the plaintiffs, and one bill of costs isawarded to the plaintiffs, payable by the defendants Michael S. Langella, P.C., and Michael S.Langella.
The instant action to recover damages for legal malpractice was commenced on February 20,2008, alleging that the defendants improperly handled the plaintiffs' underlying action to recoverdamages allegedly sustained in an automobile accident on May 23, 2000. The underlying actionwas commenced on May 29, 2002, and dismissed on July 19, 2006, upon the plaintiffs' default inappearing for trial. The plaintiffs' motion to vacate the default was denied in an order datedNovember 16, 2006, owing to the plaintiffs' failure to submit an affidavit of merit in connectionwith their motion. That order was affirmed by this Court on the ground that "there was nothing"in the affidavit of the plaintiff Lisa DiGiacomo, also known as Lisa DiGiacomo-Frangione, "toestablish that the plaintiffs had a meritorious cause of action" (Frangione v Daniels, 44 AD3d708, 708 [2007]). The instant action to recover damages for legal malpractice ensued.
The amended complaint in the instant action to recover damages for legal malpractice(hereinafter the legal malpractice complaint) alleges that "sometime prior to May 15, 2002," theplaintiffs retained the defendant Ira Levine, who commenced the underlying action on behalf ofthe plaintiffs on or about May 29, 2002, against Barbara Daniels, the operator of the offendingvehicle. The legal malpractice complaint asserts that legal malpractice was committed by thefailure to join Daniels's employer, Weight Watchers, as a defendant in the underlying action. Thestatute of limitations against Weight Watchers expired on May 23, 2003, three years after theaccident (see CPLR 214 [5]).
The legal malpractice complaint further alleges that, prior to December 16, 2003, Hankin,Handwerker, & Mazel, PLLC (hereinafter HHM), was substituted as counsel for Levine. The"Consent to Change Attorney" document effecting that substitution is dated September 18, 2003.
The legal malpractice complaint states that HHM was relieved as counsel for the plaintiffspursuant to an order of the Supreme Court dated May 15, 2006. That order also adjourned thetrial of the underlying personal injury action until July 12, 2006, and directed the plaintiffs to"obtain another attorney or represent themselves."
The legal malpractice complaint alleges that, after May 15, 2006, the plaintiffs were"represented" in the underlying action by Stacy Rinaldi Guzman, "who agreed to appear andrepresent the plaintiffs" on July 12, 2006, "for purposes of obtaining an adjournment of thematter but who never bothered to appear."
When the plaintiffs failed to appear on the adjourned date of July 12, 2006, the trial [*3]in the underlying action was again adjourned, this time until July19, 2006. When the plaintiffs failed to appear on July 19, 2006, the Supreme Court granted anoral application to dismiss the underlying action upon the plaintiffs' default (see 22NYCRR 202.27).
The legal malpractice complaint states that the plaintiffs then retained the defendantsMichael S. Langella, P.C., and Michael S. Langella (hereinafter together the Langelladefendants), who moved by order to show cause to vacate the plaintiffs' default and restore thecase to the trial calendar. The Supreme Court denied the motion to vacate the default in an orderdated November 16, 2006, on the ground that "the papers failed to present any proof regardingthe merits of the action." As previously noted, that order was affirmed by this Court (see Frangione v Daniels, 44 AD3d708 [2007]).
Since the instant action to recover damages for legal malpractice was not commenced until4½ years after HHM was substituted for Levine as the plaintiffs' counsel in the underlyingaction pursuant to a "Consent to Change Attorney," the legal malpractice complaint insofar asasserted against Levine is time-barred by the three-year statute of limitations for actions soundingin legal malpractice (see CPLR 214 [6]; Loria v Cerniglia, 69 AD3d 583 [2010]; Sommers v Cohen, 14 AD3d 691,693 [2005]). Therefore, the complaint was properly dismissed insofar as asserted against Levine.
The elements of a cause of action sounding in legal malpractice are that the defendantattorney breached a duty of care to the client and that the breach was a proximate cause of actualdamages (see Tortura v Sullivan PapainBlock McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; DeGregorio v Bender, 4 AD3d384 [2004]; Aversa v Safran, 303 AD2d 700 [2003]). To succeed on a motion todismiss a complaint pursuant to CPLR 3211 (a) (1) based on a defense founded upondocumentary evidence, the documentary evidence must resolve all factual issues as a matter oflaw and conclusively dispose of the plaintiffs' claim (see Leon v Martinez, 84 NY2d 83,87-88 [1994]; Fontanetta v John Doe1, 73 AD3d 78 [2010]; Newcomb v Sims, 63 AD3d 1022, 1023 [2009]). Whendetermining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the pleading mustbe afforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d83, 87 [1994]). The facts as alleged in the complaint are accepted as true, with the plaintiffsaccorded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83,87-88 [1994]).
The order of the Supreme Court dated May 15, 2006, relieving HHM as the attorney for theplaintiffs, conclusively established that HHM's conduct was not a proximate cause of thedismissal of the underlying action in July 2006, or of the plaintiffs' alleged damages resultingfrom that dismissal. Therefore, the complaint was also properly dismissed insofar as assertedagainst HHM.
Further, since the plaintiffs were granted an adjournment of the trial in the underlying actionon July 12, 2006, the plaintiffs' allegation that Guzman is liable for legal malpractice for failingto secure an adjournment fails to state a cause of action. Subsequent events cannot be attributedto Guzman, since the plaintiffs fail to allege that they retained Guzman to represent them in theaction. A unilateral hope on the part of the plaintiffs that Guzman might represent them does notgive rise to an attorney-client relationship (see Wei Cheng Chang v Pi, 288 AD2d 378[2001]).
However, the plaintiffs did state a cause of action against the Langella defendants, since theLangella defendants failed to submit an affidavit of merit in support of the plaintiffs' motion tovacate their default, which resulted in the denial of that motion. A motion to vacate a default andrestore an action to the trial calendar requires a reasonable excuse for the default and an affidavitof merit as to the underlying claim (see CPLR 5015 [a] [1]; 47 Thames Realty, LLC v Robinson,61 AD3d 923, 924 [2009]). The failure to provide an affidavit establishing both a reasonableexcuse for a default and a meritorious cause of action or defense may be the basis of a cause ofaction sounding in legal malpractice (seeReznick v Zurich N. Am. Specialties, 45 AD3d 750, 751 [2007]).
The plaintiffs' remaining contentions are without merit.
Accordingly, the complaint was properly dismissed insofar as asserted against Levine, [*4]HHM, and Guzman. However, the Supreme Court erred indismissing the complaint insofar as asserted against the Langella defendants. Skelos, J.P., Balkin,Roman and Sgroi, JJ., concur.