| Angeles v Aronsky |
| 2013 NY Slip Op 05955 [109 AD3d 720] |
| September 24, 2013 |
| Appellate Division, First Department |
| Manuel Angeles, Respondent, v Jeffrey A.Aronsky, Appellant. |
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Sullivan, Papain, Block, McGrath & Cannavo P.C., New York (Stephen C. Glasserof counsel), for respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 3,2012, which denied defendant's motion for summary judgment dismissing the complaintalleging legal malpractice and breach of contract, unanimously modified, on the law, togrant the motion as to the cause of action for breach of contract, and otherwise affirmed,without costs.
Plaintiff Manuel Angeles commenced this legal malpractice and breach of contractaction against defendant Jeffrey A. Aronsky alleging that defendant negligentlyrepresented plaintiff in his underlying premises liability action arising from an attack onplaintiff in the lobby of an apartment building. Plaintiff also asserts that defendantbreached the retainer agreement.
On December 7, 2007, at approximately 3:15 p.m., plaintiff entered the frontentrance of the apartment building where he lived and, immediately upon reaching thelobby, was hit in the jaw. Although there were no witnesses to the actual attack, aneighbor who was standing outside the building around the time of the incident saw threemen run out the front entrance. Two of the men were holding baseball bats. Theneighbor, who had lived in the building for about five years, did not recognize any of themen. Plaintiff also did not recognize the men, whom he observed briefly before he lostconsciousness following the assault.
On the day of the incident, plaintiff admits that the door locked behind him when heleft the building around 2:55 p.m. and that he had to unlock it with his key when hereturned a short time later. On the side of the building there is a door to the laundry room,which is located in the basement. This door remains unlocked between 9:00 a.m. and6:00 p.m. From the laundry room, a person can access the lobby without a key by usingthe elevator.
Shortly after the attack, plaintiff retained defendant to represent him in a potentialpersonal injury case. According to defendant, an investigator from his office initiallyinterviewed plaintiff at the hospital. Defendant asserts that he later spoke with plaintiffover the phone to review the information plaintiff had given the investigator. Plaintifftold defendant that the front door was locking properly on the day he received hisinjuries and mentioned no other entrances. Defendant accepted plaintiff's statementsconcerning the security of the building, and did not send an investigator to inspect thepremises or visit the premises himself. Also, he did not interview the superintendent.[*2]
Although a settlement agreement was reachedwith the owner of the building prior to the commencement of any personal injury action,plaintiff commenced a legal malpractice action against defendant, alleging, inter alia, thathe negligently investigated plaintiff's premises liability claim. Defendant moved forsummary judgment dismissing plaintiff's complaint and the motion court denied themotion.
For a claim for legal malpractice to be successful, "a plaintiff must establish both thatthe defendant attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession which results in actualdamages to a plaintiff and that the plaintiff would have succeeded on the merits of theunderlying action 'but for' the attorney's negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428,434 [2007] [citation omitted]). A client is not barred from a legal malpractice actionwhere there is a signed "settlement of the underlying action, if it is alleged that thesettlement of the action was effectively compelled by the mistakes of counsel" (Garnett v Fox, Horan & Camerini,LLP, 82 AD3d 435, 435 [1st Dept 2011] [internal quotation marks omitted],quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]).
Plaintiff, a waiter with a sixth grade education, retained defendant to represent him ina premises liability claim, relying on defendant's expertise as a personal injury attorney toevaluate his claim and provide advice on the case. Plaintiff asserts that defendant onlycontacted him once after being retained, and only to ask him to go into defendant's officeto sign paperwork for the case. Plaintiff, an unsophisticated client with no legalexperience, states that defendant did not explain to him the strengths and weaknesses ofhis claim and did not do a proper investigation. Defendant does not dispute that he neverwent to the building or spoke to the superintendent, but argues that he fulfilled hisobligation by conveying the settlement offer to plaintiff.
In this specific case, given plaintiff's lack of sophistication and his limited education,defendant's statement that he never conducted any investigation, except for speaking toplaintiff for a very limited time, raises a question of fact as to whether defendantadequately informed himself about the facts of the case before he conveyed thesettlement offer. Furthermore, defendant says he told plaintiff, when he conveyed thesettlement offer, that it was a "difficult liability case." It is difficult to understand, on therecord before us, how he made that assessment without going to the building, orspeaking to the superintendent. Because the evidence on a defendant's summaryjudgment motion must be viewed in the light most favorable to plaintiff (Branham v Loews OrpheumCinemas, Inc., 8 NY3d 931 [2007]), we find there are questions of fact as towhether the attorney failed to exercise the ordinary reasonable skill appropriate under thecircumstances.
The motion court properly found that plaintiff raised a question of fact as to whetherthe underlying action would have succeeded. To prevail on a premises liability claim, aplaintiff does not have "to exclude every other possible" explanation as to how theassailants entered the building, but only present "evidence [that] renders it more likely ormore reasonable than not that the assailant was an intruder who gained access to thepremises through a negligently maintained entrance" (Burgos v Aqueduct RealtyCorp., 92 NY2d 544, 550-551 [1998]). In Bello v Campus Realty LLC (99 AD3d 638, 639 [1st Dept2012]), this Court found an issue of fact as to how the assailants entered the buildingwhere the plaintiff did not recognize her attackers as fellow tenants and the men weredressed as police officers. Similarly, in Chunn v New York City Hous. Auth. (83 AD3d 416, 417[1st Dept 2011]), a factual issue was presented as to whether it was [*3]more likely than not that plaintiff's assailants were intruderswhere the men made no attempt to conceal their faces.
Here, plaintiff did not recognize his assailants. Further, a neighbor who had lived inthe building for several years, saw three men she did not recognize running out of thebuilding holding bats around the time of the attack.[FN*] The men made no attempt to hide their faces during or after the attack. Thus, the recordcontains sufficient facts to support a reasonable conclusion that plaintiff was assaulted byintruders (see Bello, 99 AD3d at 639; Chunn, 83 AD3d at 417).
The breach of contract claim should have been dismissed as duplicative of the legalmalpractice claim (see Lusk vWeinstein, 85 AD3d 445, 445-446 [1st Dept 2011], lv denied 17 NY3d709 [2011]). Concur—Gonzalez, P.J., Friedman, Saxe and Richter, JJ.
The decision and order of this Court entered herein on April 11, 2013 (105 AD3d486 [2013]) is hereby recalled and vacated (see 2013 NY Slip Op 86107[U][2013] [decided simultaneously herewith]). [Prior Case History: 2012 NY Slip Op30851(U).]
Footnote *: The neighbor conveyedthe information to plaintiff's girlfriend, but the girlfriend did not disclose it to defendantbefore the case was settled.