| Marchell v Littman |
| 2013 NY Slip Op 04068 [107 AD3d 1082] |
| June 6, 2013 |
| Appellate Division, Third Department |
| John T. Marchell, Appellant, v Peter N. Littman,Respondent. |
—[*1] Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), forrespondent.
Rose, J.P. Appeal from an order and a judgment of the Supreme Court (Mulvey, J.),entered February 24, 2012 and March 2, 2012 in Tompkins County, which, among otherthings, granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff received workers' compensation benefits as a result of a strained hip hesustained in the course of his employment. When his long-standing orthopedic surgeon,who had previously diagnosed him with osteoarthiritis of the hip, concluded that thework-related injury was fully resolved and any remaining symptoms were solely relatedto the preexisting condition, the State Insurance Fund (hereinafter SIF) requested that hisbenefits be suspended. Plaintiff then retained defendant to represent him and, ondefendant's advice, plaintiff went to see another orthopedic surgeon, who attributed 50%of plaintiff's disability to the work-related injury. At a conciliation hearing, defendantnegotiated a settlement with a representative from SIF whereby plaintiff agreed tobenefits based upon a temporary, marked disability apportioned 50% to the work-relatedinjury.
Plaintiff became dissatisfied with the settlement after learning that the Workers'Compensation Board would not have imposed an apportionment in his case because hisprior disability did not prevent him from working. Defendant attempted to reopen theclaim for plaintiff but, when he was unsuccessful, plaintiff commenced this actionalleging that defendant's agreement to apportion his claim constituted legal malpractice.Supreme Court then granted defendant's motion for summary judgment dismissing thecomplaint, finding that plaintiff's [*2]damages arespeculative because he cannot establish that he would have prevailed if he had litigatedthe matter before the Board. Plaintiff appeals and we affirm.
Even assuming that defendant was negligent because he was unfamiliar with theBoard's apportionment doctrine (see e.g. Matter of Nye v IBM Corp., 2 AD3d 1164, 1164[2003]; Matter of Krebs v Town of Ithaca, 293 AD2d 883, 883-884 [2002],lv denied 100 NY2d 501 [2003]), he could nevertheless succeed on his motionfor summary judgment by demonstrating that his negligence was not a proximate causeof any actual and ascertainable damages to plaintiff (see Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Bixby v Somerville, 62 AD3d1137, 1139 [2009]; Tabnerv Drake, 9 AD3d 606, 609 [2004]). In the context of the compromise reached insettlement of plaintiff's workers' compensation claim, a legal malpractice cause of actionwould be viable " 'if it is alleged that [the] settlement . . . was effectivelycompelled by the mistakes of counsel' " (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005], quotingBernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]; see Rau vBorenkoff, 262 AD2d 388, 389 [1999]).
Here, SIF's representative testified that, even with apportionment, he felt that he hadgiven "too much" to plaintiff and that the negotiations had resulted in a "bad deal" forSIF. He also testified that an agreement that failed to include apportionment would havebeen "the ultimate victory for [plaintiff]." In short, there is no evidence to supportplaintiff's contention that the carrier would have agreed to the settlement withoutapportioning the claim. Rather, the record supports the contrary conclusion that it was toSIF's advantage to seek a settlement that apportioned its liability.
Nor is there any evidence that defendant could have litigated a more favorable resultfor plaintiff (see Sevey vFriedlander, 83 AD3d 1226, 1227 [2011], lv denied 17 NY3d 707[2011]; Mega Group, Inc. vPechenik & Curro, P.C., 32 AD3d 584, 586-587 [2006]). In determiningwhether plaintiff was entitled to continued benefits, the Board would have beenconfronted with differing medical opinions and would have been free to credit theopinion that plaintiff was no longer disabled as a result of the work-related injury (see e.g. Matter of Altobelli vAllinger Temporary Servs., Inc., 70 AD3d 1083, 1084 [2010]; Matter of Moore v St. Peter'sHosp., 18 AD3d 1001, 1002 [2005]). Had the Board accepted the opinion ofplaintiff's treating orthopedist, plaintiff would have been entitled only to a lump-sumpayment for his work-related injury, and would not be receiving the continuing benefitsprovided by the settlement.
We cannot agree with plaintiff's argument, based on Matter of Sidaris vBrookhaven Mem. Hosp. (271 AD2d 884 [2000]), that he would have been entitledto continuing benefits after a hearing even if the treating orthopedist's opinion wasaccepted. The claimant in Sidaris received benefits based on an accident thataggravated his preexisting condition (id. at 884). Here, plaintiff's treatingorthopedist opined that his work-related injury was fully resolved and had no impact onhis preexisting condition, which he described as naturally progressing. Accordingly, thedamages alleged by plaintiff are speculative and Supreme Court properly granteddefendant's motion for summary judgment dismissing the complaint (see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007]; Sevey vFriedlander, 83 AD3d at 1227; Country Club Partners, LLC v Goldman, 79 AD3d 1389,1392 [2010]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order and judgment areaffirmed, with costs.