| Geraci v Munnelly |
| 2011 NY Slip Op 04797 [85 AD3d 1361] |
| June 9, 2011 |
| Appellate Division, Third Department |
| Chris Geraci, Appellant, v Kenneth J. Munnelly et al.,Respondents. |
—[*1] Lonergan & Lonergan, Kingston (Michael J. Lonergan of counsel), for respondents.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (McDonough, J.), enteredSeptember 10, 2010 in Albany County, which, among other things, granted defendants' motionfor summary judgment dismissing the complaint, and (2) from a judgment of said court, enteredSeptember 21, 2010 in Albany County, which granted defendant Kenneth J. Munnelly's motionfor a default judgment on his counterclaims against plaintiff.
Plaintiff commenced this legal malpractice and breach of contract action against defendantKenneth J. Munnelly and his law firm, defendant Arcus, Goldstein & Munnelly, regarding twounderlying actions—a CPLR article 78 proceeding and a lawsuit in federalcourt—where Munnelly had represented him. The CPLR article 78 proceeding wasbrought to challenge the denial by the Office of Children and Family Services of a request byplaintiff to seal or amend an indicated report that he had maltreated his two children. Theproceeding, which had been transferred to this Court pursuant to CPLR 7804 (g), was dismissedwhen it was not timely perfected in accordance with 22 NYCRR 800.12. The federal action wasbrought against, among others, the Albany County Sheriff's Department and a lieutenant in thedepartment who had allegedly surreptitiously assisted plaintiff's former spouse in abscondingwith their children and remaining at large for about two years. Although the action as to thelieutenant was dismissed because neither the lieutenant (who had left the department and shortlythereafter died) nor her estate were ever served, the case nevertheless settled for $135,000.[*2]
This malpractice action ensued, and Munnelly assertedcounterclaims for a past due fee in an allegedly separate legal matter as well as unpaiddisbursements. Following disclosure, defendants moved for summary judgment dismissing thecomplaint, Munnelly moved for default judgment on his counterclaims, and plaintiffcross-moved for partial summary judgment. Supreme Court granted defendants' motion forsummary judgment, finding plaintiff's breach of contract claim duplicative of his legalmalpractice claim and that, while issues of fact remained as to defendants' negligentrepresentation, plaintiff failed to raise a triable issue with regard to actual damages suffered as aresult of defendants' alleged malpractice. In addition, because plaintiff failed to reply toMunnelly's counterclaims, Supreme Court granted Munnelly's motion for a default judgment of$5,244.50. Plaintiff appeals contending that Supreme Court erred in dismissing his malpracticeclaim and in granting Munnelly's motion for a default judgment.
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession' and that the attorney's breach of this duty proximately causedplaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see AmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428, 434 [2007]; Busino v Meachem, 270 AD2d 606, 609[2000]). "For defendants to succeed on their motion for summary judgment . . . ,they were required to present evidence in admissible form establishing that plaintiff is unable toprove at least one of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d925, 926 [2003]). Supreme Court determined that defendants met their burden as to the elementof damages and that plaintiff failed to respond with sufficient proof to raise a triable issue."Damages in a legal malpractice case are designed 'to make the injured client whole' "(Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443, quotingCampagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]).
Here, in support of his motion as to the underlying CPLR article 78 proceeding, Munnellyincluded deposition testimony from plaintiff reflecting that he is employed as a correctionsergeant in Florida. Munnelly established through plaintiff's own testimony that his career has notbeen affected by his name being on the Central Register of Child Abuse and Maltreatment.Plaintiff expressed no intention to be involved in activities or an area of work that would benegatively impacted thereby. Munnelly further demonstrated that plaintiff's pleadings containedonly conclusory allegations as to damages. In response, plaintiff's affidavit failed to set forth anynegative consequences that he has suffered as a result of his name being on the Central Register.He further failed to detail any financial costs incurred. Although he included bills fromMunnelly, these all predated the subject CPLR article 78 proceeding by well over a year andrelated to earlier legal work on family law and criminal law matters in which Munnellyrepresented plaintiff. Plaintiff submitted no proof regarding potential damages of any natureflowing from the article 78 proceeding. We are constrained to conclude that plaintiff failed toraise a factual issue regarding damages as a result of the allegedly neglected CPLR article 78proceeding.
Similarly, we agree with Supreme Court that defendants met their burden regarding theunderlying federal action and plaintiff failed to raise a triable issue. Plaintiff's malpracticecomplaint alleged that the conduct by the lieutenant was conducted in her official capacity and asan employee of the Sheriff's Department. The settlement extended to the Department and itsemployees. Plaintiff failed to produce any proof beyond speculation indicating that he could havereceived additional compensation or a more favorable settlement if the lieutenant had been [*3]served or, after her death, her estate had been made a party to thefederal court action.
Supreme Court properly granted a default judgment on the counterclaims. Munnelly madethe motion within a year of plaintiff's uncontested failure to serve a reply to the counterclaims. Inresponse to the motion, "[p]laintiff[ ] made no application to be relieved of [his] default, nor did[he] offer an explanation for [his] failure to comply with the statutory pleading requirements.Even now, [he does] not seek to serve a late reply" (Brody v St. Onge, 167 AD2d 671,673 [1990]).
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the order and judgmentare affirmed, with costs.