| Gelobter v Fox |
| 2011 NY Slip Op 09268 [90 AD3d 829] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Ellen Gelobter, Appellant, v Aryeh Fox, Also Known asChristian Fox, et al., Defendants, and Alisa Schiff, Esq., et al., Respondents. G. AlexanderNovak, Nonparty Appellant. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (William T. McCaffery ofcounsel), for respondents Alisa Schiff and Schiff & Skurnik, PLLC. Rosenberg Calica & Birney, LLP, Garden City, N.Y. (William J. Birney of counsel), forrespondent Michael Gross. McDonough & McDonough, LLP, Westbury, N.Y. (Diana Brusca McDonough of counsel),for respondent Jared W. Beshchel. Steven J. Goldstein, Hicksville, N.Y., for respondent River Edge Land Services,Inc.
In an action, inter alia, to recover damages for legal malpractice, (1) the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County (Marber,J.), entered May 6, 2010, as (a) granted those branches of the separate motions of the defendantsJared W. Beschel and River Edge Land Services, Inc., which were pursuant to CPLR 3211 (a) (7)to dismiss the complaint insofar as asserted against each of them, (b) granted those branches ofthe motion of the defendants Alisa Schiff and Schiff & Skurnik, PLLC, and the separate motionof the defendant Michael Gross, which were for summary judgment dismissing the second andseventh causes of action insofar as asserted against each of them, and (c), in effect, granted thosebranches of the separate motions of the defendant Jared W. Beschel, the defendant River EdgeLand Services, Inc., the defendants Alisa Schiff and Schiff & Skurnik, PLLC, and the defendantMichael Gross, which were for an award of sanctions against the plaintiff and her attorneys, anddirected that a hearing be held on the amount of sanctions, and (2) the plaintiff and the nonparty,G. Alexander Novak, appeal from an order of the same court entered October 7, 2010, whichdenied the plaintiff's motion, denominated as a motion for leave to renew and reargue heropposition to the separate motions of the defendant Jared W. Beschel, the defendant River EdgeLand Services, Inc., the defendants Alisa Schiff and Schiff & Skurnik, PLLC, and the defendantMichael Gross but, which was, in actuality, a motion for leave to reargue her opposition to thoseseparate motions.[*2]
Motion by the defendant Michael Gross to dismiss theappeal from the order entered October 7, 2010, on the ground that no appeal lies form an orderdenying reargument. By decision and order on motion of this Court dated May 16, 2011, themotion was held in abeyance and was referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals, it is,
Ordered that the motion is granted and the appeal from the order entered October 7, 2010, isdismissed; and it is further,
Ordered that on the Court's own motion, the notice of appeal from so much of the orderentered May 6, 2010, as directed a hearing on the amount of sanctions is deemed an applicationfor leave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order entered May 6, 2010, is modified, on the law, (1) by deleting theprovision thereof granting those branches of the motion of the defendants Alisa Schiff and Schiff& Skurnik, PLLC, and the separate motion of the defendant Michael Gross, which were forsummary judgment dismissing the seventh cause of action insofar as asserted against each ofthem and substituting therefor a provision denying those branches of the separate motions, and(2) by deleting the provision thereof, in effect, granting those branches of the separate motions ofthe defendant Jared W. Beschel, the defendant River Edge Land Services, Inc., the defendantsAlisa Schiff and Schiff & Skurnik, PLLC, and the defendant Michael Gross, which were for anaward of sanctions against the plaintiff and her attorneys and directing a hearing on the amountof sanctions and substituting therefor a provision denying those branches of the separate motions;as so modified, the order entered May 6, 2010, is affirmed insofar as appealed from, and asubsequent order of the same court dated January 6, 2011, which, upon stated portions of theorder entered May 6, 2010, inter alia, awarded costs in the form of attorney fees payable by thenonparty G. Alexander Novak is vacated; and it is further,
Ordered that one bill of costs is awarded to the respondents Jared W. Beschel and River EdgeLand Services, Inc., payable by the plaintiff.
The motion to dismiss the appeal from the order entered October 7, 2010, must be granted.The plaintiff's underlying motion, although denominated as one for leave to renew and reargue,was, in actuality, a motion for leave to reargue, the denial of which is not appealable (see Coccia v Liotti, 70 AD3d 747[2010]).
In order to prevail in an action to recover damages for legal malpractice, a plaintiff mustestablish 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]; Malik v Beal, 54 AD3d 910, 911 [2008]; Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]). "To succeed on a motion for summary judgment dismissing the complaintin a legal malpractice action, the defendant must present evidence in admissible formestablishing that the plaintiff is unable to prove at least one essential element of his or her causeof action alleging legal malpractice" (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Boglia v Greenberg, 63 AD3d973, 974 [2009]; Carrasco v Pena & Kahn, 48 AD3d at 396).
The defendants Alisa Schiff and Schiff & Skurnik, PLLC (hereinafter together the Schiffdefendants), who served as the plaintiff's attorney with respect to the drafting, and the executionby the plaintiff, of a contract to sell her home (hereinafter the contract of sale), and the defendantMichael Gross, who served as the plaintiff's attorney for the related real estate closing, failed tomeet this burden. Contrary to the Supreme Court's conclusion, the Schiff defendants and Grossfailed to demonstrate, prima facie, that the plaintiff did not sustain any actual or ascertainable[*3]damages as a result of their alleged negligence. The contractof sale provided that the purchase price of the plaintiff's home was $615,000, with the plaintiff tocredit the purchaser with the sum of $155,000 at the closing. Approximately $241,000 of theproceeds of the sale went to satisfy the plaintiff's mortgage, and the plaintiff receivedapproximately $216,000. The Schiff defendants and Gross failed to eliminate triable issues offact as to the propriety of the $155,000 credit to the purchaser and other disbursements made ofthe proceeds, and thus, as to whether the plaintiff should have obtained more money for the saleof her home than she received.
Gross further failed to eliminate all triable issues of fact as to whether he was negligent in hisrepresentation of the plaintiff during the closing by, inter alia, permitting certain disbursements tobe made in a manner contrary to that provided for in the relevant documents, such as theagreement the plaintiff allegedly entered into with a broker, the defendant Aryeh Fox.
Aside from the contention that the plaintiff did not sustain any actual and ascertainabledamages, the Schiff defendants argued only that they were entitled to summary judgment on thebasis that their conduct was not the proximate cause of any damages to the plaintiff. The Schiffdefendants failed to meet their prima facie burden on the issue of proximate cause, as they merelyestablished, in this respect, that they did not participate in the real estate closing. However, thisfact did not negate any negligence on their part in the drafting of the contract of sale, which theplaintiff signed under Schiff's representation, and in connection with alleged alterations made tothe purchase price on the contract prior to the real estate closing. In other words, as the contractof sale had already been signed and altered before the real estate closing, contrary to the Schiffdefendants' contention, they did not establish as a matter of law that Gross had "a sufficientopportunity to protect the plaintiffs' rights" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641 [2008]), suchthat Schiff's conduct could not have proximately caused the plaintiff's damages.
The Supreme Court further erred by, in effect, granting those branches of the separatemotions of the defendant Jared W. Beschel, the defendant River Edge Land Services, Inc., theSchiff defendants, and Gross, which were for an award of sanctions against the plaintiff and herattorneys and directing that a hearing be held on the amount of sanctions. Conduct duringlitigation is frivolous and subject to sanction and/or the award of costs, as relevant here, when "itis completely without merit in law and cannot be supported by a reasonable argument for anextension, modification or reversal of existing law," or it is undertaken primarily to "harass ormaliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2]; see Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431[2005]; Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376, 377 [1998]). Asevidenced by our determination of this appeal, the plaintiff's commencement of the action andopposition to the motions to dismiss and for summary judgment were not completely withoutmerit in law or fact, and were not intended primarily to harass or maliciously injure thedefendants.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Balkin, Eng and Sgroi,JJ., concur.