| Rupert v Gates & Adams, P.C. |
| 2011 NY Slip Op 02554 [83 AD3d 1393] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Philip D. Rupert, Jr., Appellant, v Gates & Adams, P.C., et al.,Respondents. |
—[*1]
Appeal from an order of the Supreme Court, Monroe County (James P. Murphy, J.), enteredAugust 20, 2010 in a legal malpractice action. The order granted the motion of defendants forsummary judgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the amended complaint, as amplified by the bill ofparticulars and supplemental bill of particulars, against defendants Gates & Adams, P.C. andDouglas S. Gates concerning their investigation and valuation of plaintiff's separate property,their investigation of the payment of the sum of $315,000 relative to a note held by plaintiff andtheir investigation of the deposit by plaintiff of approximately $60,000 in pension monies into ajoint account and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this legal malpractice action alleging, inter alia, thatdefendants were negligent in representing him during the trial of a matrimonial action and on asubsequent appeal. In a prior appeal concerning the instant legal malpractice action, wedetermined, inter alia, that Supreme Court (Sirkin, J.) erred in granting defendants' cross motionseeking summary judgment dismissing the complaint (Rupert v Gates & Adams, P.C., 48 AD3d 1221 [2008]). In thisappeal, we conclude that Supreme Court (Murphy, J.) erred in granting those parts of defendants'subsequent motion for summary judgment dismissing the amended complaint against defendantsGates & Adams, P.C. and Douglas S. Gates insofar as the amended complaint, as amplified bythe bill of particulars and what we deem to be a supplemental bill of particulars, alleges thatthose two defendants were negligent in their representation of plaintiff in the matrimonial actionwith respect to their investigation and valuation of plaintiff's separate property; theirinvestigation of the payment of the sum of $315,000 relative to a note held by plaintiff; and theirinvestigation of the deposit by plaintiff of approximately $60,000 in pension monies into a jointaccount. We therefore modify the order accordingly. We agree with defendants Anthony J.Adams, Jr. and Michael J. Townsend to the extent that they contend, as an alternate ground foraffirmance with respect to them (see Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539, 545-546 [1983]; Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d1129, 1130 [2006]), that they cannot be held liable because they were not negligent in their[*2]limited involvement with the matrimonial action (seeBusiness Corporation Law § 1505 [a]). We therefore conclude that the court did not errinsofar as it granted summary judgment dismissing the amended complaint against those twodefendants.
As a threshold issue, we reject plaintiff's contention that the court erred in entertainingdefendants' present motion for summary judgment. Although plaintiff is correct that successivemotions for summary judgment are generally disfavored (see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lvdenied 16 NY3d 702 [2011]), here much of the discovery relevant to the instant motion wasconducted after defendants' prior cross motion for summary judgment, and there was thus asufficient basis for the instant motion (see id.; Taillie v Rochester Gas & Elec. Corp., 68 AD3d 1808, 1809-1810[2009]). There is no merit to plaintiff's further contention that the affidavit submitted by theattorney for defendants, to which various exhibits were attached, was insufficient to support themotion (see CPLR 3212 [b]; Rivas v Metropolitan Suburban Bus Auth., 203AD2d 349, 350 [1994]).
Plaintiff further contends that the court erred in concluding that it was required to grantdefendants' instant motion on the ground that the prior determination of Justice Sirkin thatplaintiff's failure to perfect an appeal from the final judgment in the matrimonial action barredthis legal malpractice action was the law of the case. We agree with plaintiff. Although ourdecision in the prior appeal does not so indicate (Rupert, 48 AD3d 1221), the issuewhether this legal malpractice action is barred by plaintiff's failure to perfect an appeal from thejudgment in the matrimonial action was before us on that appeal. As previously noted, wedetermined that Justice Sirkin erred in granting defendants' cross motion for summary judgmentdismissing the complaint (id.). In so ruling on the merits of the cross motion, wenecessarily rejected the very premise upon which the court denied the instant motion forsummary judgment and, although the doctrine of law the case applies to courts of coordinatejurisdiction, it does not apply herein in light of the decision of this Court on the prior appeal (see generally Matter of El-Roh RealtyCorp., 74 AD3d 1796, 1798 [2010]).
Addressing next those parts of the motion seeking summary judgment dismissing theamended complaint against Gates & Adams, P.C. and Douglas S. Gates (hereafter, defendants),we conclude that the vast majority of the allegations of legal malpractice in the amendedcomplaint, as amplified by the bill of particulars and supplemental bill of particulars, are lackingin merit. Indeed, defendants met their initial burden on the motion with respect thereto, andplaintiff failed to raise an issue of fact in opposition (see Pignataro v Welsh, 38 AD3d 1320 [2007], lv denied 9NY3d 849 [2007]; see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Although certain allegations of malpractice have merit, they do not warrant thereinstatement of the amended complaint with respect to them. Specifically, plaintiff is correctthat defendants erred in failing to contend in the matrimonial action that the court in that actionshould not value the entire contents of $54,725 in household goods as an asset of plaintiff andshould not double-count an assessment of moving expenses levied against plaintiff. In addition,defendants failed to obtain a proper valuation of certain Canadian real property owned byplaintiff. Nevertheless, we conclude that the court did not err in granting defendants' motionconcerning those alleged errors because they could have been corrected on an appeal from thefinal judgment in the matrimonial action, and plaintiff consented to the dismissal on the merits ofany appeal in the matrimonial action as part of the global settlement resolving a bankruptcyproceeding in which he was involved. In doing so, plaintiff precluded pursuit of the very meansby which defendants' representation of plaintiff in the matrimonial action could have beenvindicated (see e.g. Rodriguez v Fredericks, 213 AD2d 176, 178 [1995], lvdenied 85 NY2d 812 [1995]; cf. N. A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner,Levy, 59 AD2d 551 [1977], affd 45 NY2d 730 [1978], rearg denied 45 NY2d839 [1978]). We therefore conclude that plaintiff, by virtue of his global settlement, waived theright to raise those shortcomings in this legal malpractice action.[*3]
We further conclude, however, that the foregoing waiveranalysis does not apply with respect to plaintiff's aforementioned claims that defendants werenegligent with respect to the investigation and valuation of plaintiff's separate property, theirinvestigation of the payment of the sum of $315,000 relative to a note held by plaintiff, and theirinvestigation of the deposit by plaintiff of approximately $60,000 in pension monies into a jointaccount. Defendants failed to meet their initial burden on those parts of the motion concerningthose claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49 NY2dat 562). The waiver analysis based on plaintiff's global settlement does not apply to thosepurported deficiencies in defendants' representation of plaintiff in the matrimonial action becausethe appeal from the final judgment in the matrimonial action would not have permitteddefendants or substitute counsel for plaintiff to address questions regarding the failure totrace plaintiff's separate property into the marriage and to locate evidence bothproving plaintiff's payment of $315,000 on an outstanding note and demonstrating that $60,000of plaintiff's pension monies had been transferred to a joint account to be shared with plaintiff'sformer wife. Finally, defendants will not be heard to contend that plaintiff's involvement with thepreparation of the matrimonial action for trial bars him from raising those deficiencies. Anattorney generally is not permitted to shift to the client the legal responsibility that the attorneywas hired to undertake because of his or her superior knowledge (see Northrop v Thorsen, 46 AD3d780, 783 [2007]). Indeed, it is well settled that "[a]n attorney has the responsibility toinvestigate and prepare every phase of his [or her] client's case" (Rosenstrauss v Jacobs & Jacobs, 56AD3d 453, 453 [2008] [internal quotation marks omitted]).
Finally, we have reviewed plaintiff's remaining contentions and conclude that they arewithout merit. Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.