| David v Hack |
| 2012 NY Slip Op 05479 [97 AD3d 437] |
| July 10, 2012 |
| Appellate Division, First Department |
| Dany David, Respondent, v Michail Z. Hack et al.,Appellants. |
—[*1] Savitt Law Firm PLLC, New York (Richard P. Savitt of counsel), for respondent.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 19, 2011,which, insofar as appealed from as limited by the briefs, denied defendants' pre-answer motion todismiss, pursuant to CPLR 3211 (a) (1), (5) and (7), the cause of action for legal malpractice,unanimously reversed, and the motion granted, without costs.
By written agreement dated April 28, 2009, plaintiff, a commodities trader with MBFClearing Corporation, retained defendant Quadrino & Schwartz, P.C., on an hourly fee basis, "torepresent him in connection with the filing of long term disability claims under two Guardiangroup policies." At that time, the "look back period" for determining an employee's "InsuredEarnings," used to calculate the amount of benefits to which the employee was entitled, was oneyear from the date of disability. As of May 1, 2009, the look back period was increased to threeyears.
In support of his malpractice claim, plaintiff alleges that defendants, without his knowledge,submitted a claim form that incorrectly stated that the date of his disability was "4/9/09," whichwas the day he stopped trading, not the day he was determined to be disabled; the latter he allegeswas May 13, 2009. Plaintiff contends that as a result of this error, Guardian applied the one-yearlook back period, which led to the denial of his claim on April 14, 2010, because his 2008income tax return showed a loss. Although plaintiff, on a contingency fee basis, retained newcounsel who successfully appealed the denial, he seeks to recover from defendants the additionalcosts, expenses and attorneys' fees he incurred in prosecuting that appeal.
Supreme Court correctly determined that issues of fact exist as to whether the release signedby plaintiff on March 31, 2010, in connection with the settlement of his fee dispute withdefendants, was obtained in violation of the Rules of Professional Conduct (22 NYCRR 1200.0)rule 1.8 (h) (2) (see Swift v Ki Young Choe, 242 AD2d 188, 192 [1998]; see alsoNewin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, themalpractice claim must nevertheless be dismissed because the evidentiary materials submitted bythe parties conclusively establish that defendants breached no duty to plaintiff, and that noalleged damages were caused by any act of defendants (see O'Callaghan v Brunelle, 84 AD3d 581 [2011], lv [*2]denied 18 NY3d 804 [2012]; Between The Bread RealtyCorp. v Salans Hertzfeld Heilbronn Christy & Viener, 290 AD2d 380, 381 [2002], lvdenied 98 NY2d 603 [2002]).
To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidencerelied on by the defendant must "conclusively establish[ ] a defense to the asserted claims as amatter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). On a motion to dismisspursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint astrue, accord plaintiff[ ] the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory" (id. at 87-88).However, "allegations consisting of bare legal conclusions as well as factual claims flatlycontradicted by documentary evidence are not entitled to any such consideration" (Maas vCornell Univ., 94 NY2d 87, 91 [1999]).
At the heart of plaintiff's malpractice claim is his assertion that defendants could haveobtained the date of his disability from his treating physician, Dr. Schottenstein, at any time afterMay 13, 2009, but refused or neglected to do so. However, the record demonstrates that whenplaintiff's new counsel argued in his June 14, 2010 appeal letter to Guardian that the claim turnedon the date it was determined that plaintiff was disabled, not on the date he ceased trading, herelied on the "June 10, 2010 Medical Record of Dr. Douglas Schottenstein,NYSpinemedicine, which for the first time gives [plaintiff] a date of disability on May13, 2010" (emphasis added). Defendants ceased acting as plaintiff's attorney on December 23,2009, well before the June 10, 2010 record was available.
The documentary evidence further demonstrates that defendants' submissions to Guardianwere based on the information available to them. Defendants were retained to file a disabilityclaim on April 28, 2009, which predates the date on which plaintiff claims it was determined thathe was disabled. Plaintiff's claim form, dated September 2, 2009, states that April 9, 2009 wasthe date that he became unable to work because of illness or injury. While plaintiff asserts that hesigned the claim form in blank, the e-mail he relies on shows that he was provided with a draftclaim form, asked to review it and complete the unanswered questions, and told that theinformation would then be typed into the form he signed. Further, on September 9, 2009, plaintiffsent defendants an e-mail stating that "[m]y last trading day was [A]pril 8th." Defendants reliedon that date to complete the disability claim form, which they submitted to Guardian that day.
Defendants also submitted to Guardian Dr. Afshin Razi's physician's statement, dated August27, 2009, which states that Dr. Razi first evaluated plaintiff for his back condition on May 27,2008, and last treated him on March 19, 2009, and that plaintiff had "[m]oderate limitations offunctional capacity; capable of clerical/administrative (sedentary) activity (60-70%)" (footnoteomitted). Dr. Razi added that plaintiff "cannot carry heavy bag or be on the trading floor wherehe may be jostled[,] which may injure his back."
Consistent with the foregoing, the employer section of plaintiff's disability claim, datedSeptember 25, 2009, states that the date the disability began was "unknown," that the last dateplaintiff worked on the "floor" was April 7, 2009, and that the reason for leaving work was adisability. Defendants also provided Guardian with Dr. Razi's and Dr. Schottenstein's medicalrecords, the receipt of which Guardian confirmed in a letter dated October 20, 2009, in whichGuardian advised defendants that it had requested additional information directly from thedoctors.
We also note that Guardian's denial was not final at the point that defendants ceased [*3]representing plaintiff on December 23, 2009. In its letter datedDecember 17, 2009, Guardian stated that it had been determined that plaintiff's disability was"supported" from April 7, 2009, but denied the claim because it had not received his 2008 taxreturn and trading statements or logs for the year April 8, 2008 through April 7, 2009, whichwere needed to determine his monthly benefit. The letter further advised counsel that if plaintiffwished to appeal the determination he needed to submit those documents. That information wasprovided to Guardian on February 22, 2010, at which point defendants no longer representedplaintiff. When Guardian denied plaintiff's disability claim on April 14, 2010 "because theinformation you submitted does not support any insured earnings as of the date you ceased workfull-time on April 7, 2009," it stated: "We did receive a new Long Term Disability Claim formfrom you dated March 23, 2010 indicating that your disability did not begin until May 8, 2009,however, we have copies of your trading records for 2009 that show that the last day you[ ]traded in April 2009 was April 8, 2009. Since we have no record of your trading past this date wewould use this as the date you last worked."
Thus, after defendants ceased representing plaintiff, Guardian, which had Dr. Razi's and Dr.Schottenstein's medical records, considered plaintiff's revised claim that his disability did notstart until May 2009. Nevertheless, Guardian did not grant the claim until it received Dr.Schottenstein's June 10, 2010 medical records.
Given these circumstances, the evidentiary submissions refute plaintiff's allegations thatGuardian denied his disability claim because defendants failed to submit critical information thatwas or should have been available to them, and establish a defense as a matter of law warrantingdismissal of the malpractice claim. Concur—Tom, J.P., Andrias, Catterson, Richter andAbdus-Salaam, JJ. [Prior Case History: 2011 NY Slip Op 32443(U).]