| Lovino, Inc. v Lavallee Law Offs. |
| 2012 NY Slip Op 04978 [96 AD3d 910] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Lovino, Inc., Doing Business as Bodyline Collision, et al.,Respondents, v Lavallee Law Offices et al., Appellants. (And a Third-Party Action.) |
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McGinity & McGinity, P.C., Garden City, N.Y. (Leo F. McGinity, Jr. of counsel), forrespondents.
In an action to recover damages for legal malpractice, the defendants appeal from a judgmentof the Supreme Court, Nassau County (Brown, J.), entered August 12, 2011, which, upon anorder of the same court (Feinman, J.), entered October 27, 2010, denying their motion forsummary judgment, upon a jury verdict, and upon an order of the same court (Brown, J.) enteredAugust 2, 2011, inter alia, granting the plaintiffs' cross motion pursuant to CPLR 5001 (c) tospecify the date from which interest is to be computed, is in favor of the plaintiffs and againstthem in the principal sum of $268,500, and awarded the plaintiffs $140,694 in prejudgmentinterest on the sum of $268,500 from August 24, 2005, until May 20, 2011.
Ordered that the judgment is affirmed, with costs.
The individual plaintiff, Joseph Indovino, owns and operates the corporate plaintiff, Lovino,Inc., doing business as Bodyline Collision (hereinafter Bodyline), an auto body repair shop. In1994, the plaintiffs invested $295,000 with Robert Tassinari, who is a relative of Indovino. ByJanuary of 1998, after they had not received any profits, statements, receipts, or other evidence ofthe results of their investment with Tassinari, the plaintiffs demanded the return of theirinvestment. Shortly thereafter, the sum of $232,500 was transferred by nonparty Frank Zangara, aperson then unknown to the plaintiffs, to a Bodyline account at Chase Manhattan Bank. On April8, 1998, Zangara appeared at the office of Bodyline, identified himself as a person who workedwith Tassinari, and demanded the return of the $232,500. While Zangara was in the office,Indovino called Tassinari, who spoke with Zangara on the phone. After that conversation,Zangara told Indovino that Tassinari "agreed to take care of everything," and Zangara left theshop. That day, the plaintiffs received by facsimile a "general release" purportedly signed byZangara.
Nearly six years later, in December 2003, Zangara and a corporation commenced an action(hereinafter the underlying action) against, among others, the plaintiffs, seeking, inter alia,damages in the sum of $232,500. The plaintiffs retained the defendants Keith Lavallee andLavallee Law Offices (hereinafter together the Lavallee defendants) to defend them in theunderlying action, and Lavallee assigned the case to his associate, the defendant RyanBrownyard. A few days before the scheduled trial, Brownyard sought a stay in order to serve athird-party complaint on Tassinari; [*2]the application wasdenied, the trial proceeded, and Brownyard did not call Tassinari to testify. Zangara prevailed inthe underlying action and was awarded a judgment against the plaintiffs in the principal sum of$232,500.
The plaintiffs thereafter commenced this action to recover damages for legal malpractice,alleging that the defendants had failed to adduce evidence in support of their complete defense toZangara's action. They alleged that Tassinari had used a pretext to induce Zangara to transfer the$232,500 to the plaintiffs' account, and thereafter Tassinari satisfied Zangara's claim to thosemonies by transferring $250,000 to Zangara in consideration for the general release sent to theplaintiffs. The defendants failed to adduce this evidence at the trial of the underlying action andinexplicably failed to implead Tassinari or to call him as a witness, although the plaintiffs hadrepeatedly made such requests from the outset of the case.
"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] [internal quotation marks omitted]; see Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]; Barnett v Schwartz, 47 AD3d 197,203 [2007]). "To establish causation, a plaintiff must show that he or she would have prevailed inthe underlying action or would not have incurred any damages, but for the lawyer's negligence"(Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). "To succeed on amotion for summary judgment, the defendant in a legal malpractice action must present evidencein admissible form establishing that the plaintiff is unable to prove at least one of these essentialelements" (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marksomitted]).
Here, in support of their motion for summary judgment, the defendants established theirprima facie entitlement to judgment as a matter of law dismissing the complaint by submitting,inter alia, Brownyard's affidavit, in which he averred that Indovino did not want to bringTassinari into the underlying action because of their family relationship and did not requestTassinari's involvement until five days before the scheduled trial. The defendants also submittedthe trial transcript in the underlying action, which included Zangara's testimony that he hadreceived a payment of $250,000 on April 8, 1998, and Brownyard's argument in summation thatthe purpose of that payment was to satisfy Zangara's claim against the plaintiffs. In opposition,the plaintiffs raised triable issues of fact with evidence, including the affidavit of Indovino, inwhich he averred that he told the defendants from the beginning of their representation thatTassinari was the sole cause of Zangara's claim and that Tassinari had to be brought into theunderlying action as a party or a witness. Indovino also averred that he had recently learned thatthe defendants had a potential conflict of interest due to their previous representation of Zangarain another matter. Further, the plaintiffs submitted Tassinari's affidavit, in which he stated that,had he been called as a witness in the underlying action, he would have testified that he paid$250,000 to Zangara to repay the money Zangara had transferred to the plaintiffs. In light ofthese triable issues of fact, the Supreme Court properly denied the defendants' motion (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
At the trial in this matter, the jury rendered a verdict in favor of the plaintiffs and determinedthat the plaintiffs had sustained damages in the sum of $268,500. The Supreme Court enteredjudgment in favor of the plaintiffs in the principal sum of $268,500, plus $140,694 inprejudgment interest on that sum from August 24, 2005, the date of accrual of the plaintiffs'cause of action, until the jury verdict on May 20, 2011. The defendants contend that theassessment of prejudgment interest on the entire principal amount is an impermissible doublerecovery with respect to the portion of the damages award which represents the plaintiffs'payment of interest on a loan they were required to obtain in order to pay the judgment in theunderlying action. This contention is without merit. Although the trial evidence supported suchan item of damages, as the Supreme Court observed, it is improper to speculate as to the mannerin which the jury reached its computation since the verdict sheet did not require the jury toitemize damages. In any event, prejudgment interest awarded on such an amount does notconstitute a double recovery, since the "award of interest is founded on the theory that there hasbeen a deprivation of use of money or its equivalent" (Kaiser v Fishman, 187 AD2d 623,627 [1992]; see Wolf v American Tech. Ceramics Corp., [*3]84 AD3d 1224, 1226 [2011]). Here, the plaintiffs were deprived ofthe use of any money they were required to expend to make interest payments on a loan.
The defendants' remaining contention, that prejudgment interest should not have beenawarded for the entire time period with respect to certain expenses the plaintiffs allegedlyincurred at various times after August 24, 2005, is based on pure speculation, and therefore, iswithout merit (cf. CPLR 5001 [b]; Barnett v Schwartz, 47 AD3d at 208).Angiolillo, J.P., Eng, Lott and Austin, JJ., concur.