| Palmieri v Biggiani |
| 2013 NY Slip Op 05194 [108 AD3d 604] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Paul Palmieri, Appellant, v Michael A. Biggiani,Respondent. |
—[*1] Kaufman Dolowich Voluck & Gonzo, LLP, Woodbury, N.Y. (Brett A. Scher andJonathan Isaacson of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, breach of contract,and violation of Judiciary Law § 487, the plaintiff appeals, as limited by his brief,from stated portions of (1) an order of the Supreme Court, Suffolk County (Jones, Jr., J.),dated July 5, 2011, which, inter alia, granted those branches of the defendant's motionwhich were pursuant to CPLR 3211 (a) (1) to dismiss the causes of action alleging legalmalpractice, breach of contract, and fraud, and pursuant to CPLR 3211 (a) (7) to dismissthe causes of action alleging abuse of process, "tortious breach of contract," and violationof Judiciary Law § 487, and (2) a judgment of the same court entered August 2,2011, which, inter alia, upon the order, is in favor of the defendant and against him, ineffect, dismissing the amended complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provisions thereofdismissing the causes of action alleging legal malpractice and violation of Judiciary Law§ 487; as so modified, the judgment is affirmed insofar as appealed from, thosebranches of the defendant's motion which were to dismiss the causes of action alleginglegal malpractice and violation of Judiciary Law § 487 are denied, those causes ofaction are reinstated and severed, and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from the intermediate orderare brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
This is an action alleging, inter alia, legal malpractice, arising from the defendant'srepresentation of the plaintiff in an action to recover damages for personal injuriessustained by the plaintiff in a motor vehicle accident. The plaintiff alleges that after theinsurer for the alleged [*2]tortfeasors in the underlyingaction notified the defendant that it did not intend to settle the underlying action, thedefendant advised the plaintiff to pay an expert witness fee directly to the expert heintended to use at trial. The plaintiff also alleges that, when he refused to advance theexpert witness fee, the defendant sought to be relieved as counsel on the allegedlyspurious ground that the plaintiff and the defendant had irreconcilable differences.
In an order dated July 5, 2005 (hereinafter the July 2005 order), the defendant'smotion to be relieved as counsel in the underlying action was granted, in effect, upon theplaintiff's default. The plaintiff moved, inter alia, to vacate the July 2005 order. While theplaintiff's motion was pending, the Supreme Court, in an order dated March 23, 2006(hereinafter the March 2006 order), directed the dismissal of the underlying action.
In an order dated May 24, 2007 (hereinafter the May 2007 order), made after ahearing on the issue of whether the plaintiff had been served with a copy of the papersconstituting the defendant's motion to be relieved as counsel, the Supreme Court foundthat the plaintiff had not been served and, thus, demonstrated a reasonable excuse for hisfailure to oppose the defendant's motion to be relieved as counsel. Accordingly, theSupreme Court vacated the July 2005 order, and directed the underlying action to berestored to the trial calendar. The defendant subsequently moved again to be relieved ascounsel, contending, in his affirmation in support of his motion, that the plaintiff"steadfastly refused to pay the litigation expenses that [would] be incurred in theprosecution of his . . . case."
On July 25, 2007, the parties stipulated to the substitution of the defendant ascounsel (hereinafter the July 2007 stipulation). On August 12, 2008, the Supreme Courtdismissed the underlying action. The parties dispute the basis for the August 2008dismissal. The plaintiff alleges that the August 2008 dismissal was based on the SupremeCourt's determination that more than one year had elapsed between the July 2005 orderentered on the plaintiff's default and the May 2007 order vacating that default andrestoring the action to the trial calendar, and that the underlying action was, thus, notrestorable pursuant to the May 2007 order. He further alleges that, inasmuch as thedefendant first withdrew as counsel under false pretenses, and had been reinstated ascounsel in May 2007, the defendant's failure to timely rectify the consequences of theMarch 2006 dismissal of the underlying action constituted legal malpractice. Thedefendant contends that the August 2008 dismissal was based on the failure of theplaintiff's subsequent counsel to prosecute the underlying action. The only documentaryevidence in the record as to the court's reason for the August 2008 dismissal was an entryin the Supreme Court's computerized calendar record indicating that the underlyingaction was dismissed "PER SFO J.EDB 3-23-2006."
The plaintiff thereafter commenced the instant legal malpractice action, and thedefendant moved, in effect, to dismiss the amended complaint pursuant to CPLR 3211(a) (1), (5) and (7). In an order dated July 5, 2011, the Supreme Court granted that branchof the defendant's motion which was to dismiss the cause of action alleging legalmalpractice, based on its conclusion that documentary evidence established that theunderlying action was ultimately dismissed more than one year after the defendant wasrelieved as counsel, that events subsequent to the substitution of counsel could not beattributed to the defendant, and that, as a matter of law, the defendant's refusal to advancethe expert's fee was not a proximate cause of the August 2008 dismissal. The SupremeCourt also directed the dismissal of the causes of action alleging breach of contract,fraud, breach of fiduciary duty, and deceit as duplicative of the cause of action alleginglegal malpractice. It further directed the dismissal of the remaining causes of action forfailure to state a cause of action. In a judgment entered August 2, 2011, the SupremeCourt dismissed the amended complaint.
"To succeed on a motion to dismiss [a complaint] pursuant to CPLR 3211 (a) (1), thedocumentary evidence relied on by the defendant must conclusively establish[ ] a defenseto the asserted claims as a matter of law" (Ofman v Katz, 89 AD3d 909, 910 [2011] [internalquotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994])."[T]he documentary evidence . . . must be such that it resolves all factualissues as a matter of law" (Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d650, 650 [2006] [internal quotation marks omitted]). "Whether the complaint willlater survive a motion for summary judgment, or whether the plaintiff will ultimately beable to prove [his or her] [*3]claims, of course, plays nopart in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson,Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]).
In support of that branch of his motion which was pursuant to CPLR 3211 (a) (1) todismiss the cause of action alleging legal malpractice, the defendant failed to presentdocumentary evidence conclusively establishing a defense as a matter of law (see Cives Corp. v George A. FullerCo., Inc., 97 AD3d 713, 714 [2012]; Granada Condominium III Assn. v Palomino, 78 AD3d996, 997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2010]; Holman v City of New York,19 Misc 3d 600, 602 [2008]; David D. Siegel, Practice Commentaries, McKinney'sCons Laws of NY, Book 7B, CPLR C3211:10). The plaintiff alleged in the amendedcomplaint that the defendant committed legal malpractice in the underlying action bydemanding that he pay the expert fee in advance, and, upon his refusal, fabricating adispute as a pretext to be relieved as counsel on insufficient grounds, and thereafterfailing to represent him further in the underlying action. The plaintiff also alleged that thedefendant intentionally failed to provide him with proper notice of the motion to berelieved as counsel, so that he could not oppose it. He further alleged that the defendant'smalpractice caused the underlying action to be dismissed in March 2006 at a time whenthe defendant was still counsel of record. He also alleged that, inasmuch as the August2008 dismissal was based on the Supreme Court's conclusion that the underlying actionwas not restorable pursuant to the May 2007 order, the March 2006 order directingdismissal of the underlying action never was vacated.
However, the documentary evidence that the defendant submitted, consisting of theretainer agreement, court orders, the transcript of the hearing on the issue of whether hismotion papers were served, the Supreme Court's computerized calendar record, and theJuly 2007 stipulation, did not resolve all factual issues as a matter of law (seeCPLR 3211 [a] [7]; McCoy v Feinman, 99 NY2d 295, 301-302 [2002];Fischer v Langbein, 103 NY 84, 89-90 [1886]; Menardy v Gladstone Props.,Inc., 100 AD3d 840, 842 [2012]; Adams v Fellingham, 52 AD3d 443, 444-445 [2008];Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d at 650; George vGeorge, 217 AD2d 913 [1995]; ERA Realty Co. v RBS Props., 185 AD2d871, 873 [1992]; Cook v Cook, 157 NYS2d 770, 772 [1956]; Matter ofGrube, 162 Misc 267, 268 [1937]; NY St Bar Assn Comm on Prof Ethics Op 653[1993]). The unresolved issues included the issue of whether the August 2008 dismissalwas based on the plaintiff's failure to prosecute the underlying action, based on adetermination that the Supreme Court lacked authority pursuant to the May 2007 order tosua sponte vacate the March 2006 dismissal (see Menardy v Gladstone Props.,Inc., 100 AD3d at 842; Adams v Fellingham, 52 AD3d at 444-445), or basedon some other ground. Accordingly, the Supreme Court erred in granting that branch ofthe defendant's motion.
Further, construing the amended complaint liberally, accepting the facts alleged inthe amended complaint as true, and according the plaintiff the benefit of every possibleinference, the plaintiff stated a cause of action alleging legal malpractice (see Leon vMartinez, 84 NY2d at 87-88; Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 255[2012]; Harris v Barbera,96 AD3d 904, 906 [2012]; Esposito v Noto, 90 AD3d 825 [2011]; Ofman vKatz, 89 AD3d at 910; Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d1168, 1171 [2010]; Guayara v Harry I. Katz, P.C., 83 AD3d 661, 663 [2011];Ruffino v New York City Tr.Auth., 55 AD3d 817, 818 [2008]; Kempf v Magida, 37 AD3d 763, 764 [2007]; Ashton vScotman, 260 AD2d 332 [1999]).
Contrary to the plaintiff's contention, the causes of action alleging, respectively,breach of contract, fraud, and deceit are duplicative of the cause of action alleging legalmalpractice, because they arose from the same facts as the legal malpractice cause ofaction, and do not allege distinct damages (see Santulli v Englert, Reilly &McHugh, 78 NY2d 700, 705 [1992]; Soni v Pryor, 102 AD3d 856, 858 [2013]; Pace v Raisman & Assoc., Esqs.,LLP, 95 AD3d 1185, 1188-1189 [2012]; Daniels v Turco, 84 AD3d 858, 859 [2011]; Scartozzi v Potruch, 72 AD3d787, 789 [2010]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen,303 AD2d 561, 562 [2003]; Saveca v Reilly, 111 AD2d 493 [1985]). Thus, theSupreme Court properly granted those branches of the defendant's motion which werepursuant to CPLR 3211 (a) (7) to dismiss the causes of action alleging, respectively,breach of contract, fraud, and deceit.
The Supreme Court properly granted the branch of the defendant's motion which was[*4]to dismiss the cause of action alleging "tortiousbreach of contract" pursuant to CPLR 3211 (a) (7), as New York does not recognize"tortious breach of contract" as a valid cause of action. In any event, construing theamended complaint liberally, accepting the facts alleged in the amended complaint astrue, and according the plaintiff the benefit of every possible inference (see Leon vMartinez, 84 NY2d at 87-88; Harris v Barbera, 96 AD3d at 906;Esposito v Noto, 90 AD3d at 825; Ofman v Katz, 89 AD3d at 910;Guayara v Harry I. Katz, P.C., 83 AD3d at 663), the plaintiff's claim, in effect, torecover damages for breach of an implied covenant of good faith and fair dealing (see P.T.& L. Contr. Corp. vTrataros Constr., Inc., 29 AD3d 763 [2006]; Aventine Inv. Mgt. v CanadianImperial Bank of Commerce, 265 AD2d 513, 513-514 [1999]) was duplicative ofthe cause of action alleging legal malpractice (see Levi v Utica First Ins. Co., 12 AD3d 256, 257-258[2004]; Canstar v Jones Constr. Co., 212 AD2d 452, 453 [1995]).
Contrary to the Supreme Court's conclusion, the plaintiff stated a cause of actionalleging violation of Judiciary Law § 487 (see CPLR 3211 [a] [7];Judiciary Law § 487; Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]; RockCity Sound, Inc. v Bashian & Farber, LLP, 74 AD3d at 1172; Boglia v Greenberg, 63 AD3d973, 975 [2009]; Kempf v Magida, 37 AD3d at 764; Izko Sportswear Co., Inc. vFlaum, 25 AD3d 534, 537 [2006]). The plaintiff alleged in the amendedcomplaint that the defendant's assertion, made in support of the motion to be relieved ascounsel, that the plaintiff "steadfastly refused to pay the litigation expenses," wasknowingly false and was offered with the intent to deceive the Supreme Court intobelieving that the defendant originally had sufficient cause to be relieved as counsel (see Dupree v Voorhees, 102AD3d 912, 913 [2013]). Thus, the Supreme Court should have denied that branch ofthe defendant's motion which was to dismiss the cause of action alleging a violation ofJudiciary Law § 487.
The Supreme Court properly granted that branch of the defendant's motion whichwas to dismiss the cause of action alleging abuse of process pursuant to CPLR 3211 (a)(7) (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Greco v Christoffersen, 70AD3d 769, 770 [2010]). Contrary to the plaintiff's contention, the defendant's use ofan order to show cause as a mechanism by which to seek to be relieved as counsel did notconstitute abuse of process. CPLR 321 (b) (2) requires that a motion for leave towithdraw as counsel be made on "such notice to the client . . . as the courtmay direct," which necessarily entails the use of an order to show cause (seeCPLR 2214 [d]; Wong v Wong, 213 AD2d 399 [1995]). "Where process is usedfor the purpose for which it was intended, a cause of action to recover damages for abuseof process does not lie" (Dupreev Voorhees, 68 AD3d 807, 810 [2009]; see CPLR 2214 [d]). Moreover,contrary to the plaintiff's contention, the order to show cause did not improperly compelthe performance or forbearance of any act by the plaintiff (see CPLR 2214 [a];2219 [a]).
The parties' remaining contentions either are not properly before this Court, arewithout merit, or have been rendered academic by our determination. Skelos, J.P.,Dickerson, Austin and Cohen, JJ., concur.