| Rehberger v Garguilo & Orzechowski, LLP |
| 2014 NY Slip Op 04182 [118 AD3d 767] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| Frederick Rehberger, Respondent, v Garguilo& Orzechowski, LLP, Defendant/Third Third-Party Plaintiff-Appellant, and JerryGarguilo, Defendant/Second Third-Party Plaintiff-Appellant. Dollinger, Gonski &Grossman, Esqs., et al., Second Third-Party Defendants/Third Third-PartyDefendants-Respondents. (And Another Third-Party Action.) |
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Thomas W.Hylan and Joseph L. Francoeur of counsel), for defendant/second third-partyplaintiff-appellant.
Nicoletti Hornig & Sweeney, New York, N.Y. (Michael F. McGowanof counsel), for defendant/third third-party plaintiff-appellant.
Dennis W. Houdek, New York, N.Y., for plaintiff-respondent.
Furman Kornfeld & Brennan LLP, New York, N.Y. (Joshua B.Sandberg of counsel), for second third-party defendants/third third-partydefendants-respondents.
In an action to recover damages for legal malpractice, the defendant/secondthird-party plaintiff appeals from so much of an order of the Supreme Court, WestchesterCounty (Adler, J.), entered January 9, 2013, as denied his motion for summary judgmentdismissing the complaint insofar as asserted against him, and the defendant/thirdthird-party plaintiff, Garguilo & Orzechowski, LLP, separately appeals from somuch of the same order as (a) denied that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, and (b) denied thatbranch of its motion which was for summary judgment on the third third-partycomplaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable to the plaintiff by the defendant/second third-party plaintiff and thedefendant/third third-[*2]party plaintiff, appearingseparately and filing separate briefs, and one bill of costs payable to the secondthird-party defendants/third third-party defendants by the defendant/third third-partyplaintiff.
The plaintiff commenced this action to recover damages arising from legalmalpractice allegedly committed by Garguilo & Orzechowski, LLP, and JerryGarguilo (hereinafter together the Garguilo defendants), while representing him in adeclaratory judgment action to enforce the buy-out provision of a stock agreement. Theplaintiff alleged, inter alia, that the Garguilo defendants failed to serve a notice requiredby the stock agreement upon the individual shareholders, which resulted in a judgmentdismissing them from the action. The Supreme Court, among other things, denied JerryGarguilo's motion for summary judgment dismissing the complaint insofar as assertedagainst him, and denied that branch of the separate motion of Garguilo &Orzechowski, LLP, which was for summary judgment dismissing the complaint insofaras asserted against it.
"In an action to recover damages for legal malpractice, a plaintiff must demonstratethat the attorney 'failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession' and that the attorney's breachof this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy vFeinman, 99 NY2d 295, 301 [2002]; see Frederick v Meighan, 75 AD3d 528, 531 [2010]). "Toestablish causation, a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages, but for the lawyer'snegligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at442; see Waggoner vCaruso, 14 NY3d 874 [2010]; Barnave v Davis, 108 AD3d 582 [2013]). " 'Tosucceed on a motion for summary judgment, the defendant in a legal malpractice actionmust present evidence in admissible form establishing that the plaintiff is unable to proveat least one of these essential elements' " (Affordable Community, Inc. v Simon, 95 AD3d 1047,1048 [2012], quoting Alizio vFeldman, 82 AD3d 804, 804 [2011]; see Barnave v Davis, 108 AD3d 582 [2013]).
Here, the Garguilo defendants each failed to establish their prima facie entitlement tojudgment as a matter of law dismissing the complaint insofar as asserted against each ofthem. The stock redemption agreement in the underlying action required that notice ofredemption be mailed to each of the individual shareholders at the address listed in theagreement. As a result of the Garguilo defendants' failure to send this notice to theindividual shareholders, the individual shareholder defendants were dismissed from theunderlying action. The Garguilo defendants' submissions in support of their respectivemotions did not establish, prima facie, that the plaintiff will be unable to prove at leastone element of his legal malpractice claim and, thus, they failed to demonstrate theirentitlement to judgment as a matter of law (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d 438 [2007]; Barnave v Davis, 108 AD3d at 583; AffordableCommunity, Inc. v Simon, 95 AD3d at 1048; cf. Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz,Altschuler & Nahins, P.C., 97 AD3d 612, 613-614 [2012]; Frederick vMeighan, 75 AD3d at 531-532; Leach v Bailly, 57 AD3d 1286, 1289 [2008]). Moreover,contrary to the Garguilo defendants' contention, they failed to demonstrate, prima facie,that the plaintiff's subsequent counsel, Dollinger, Gonski & Grossman, Esqs., andMatthew Dollinger (hereinafter together the Dollinger third-party defendants), had asufficient opportunity to fully protect the plaintiff's rights when it took over the case, asto establish that any alleged negligence on the part of the Garguilo defendants was not aproximate cause of the plaintiff's damages (cf. Perks v Lauto & Garabedian,306 AD2d 261 [2003]; Albin v Pearson, 289 AD2d 272 [2001]).
The Garguilo defendants' respective remaining contentions are without merit.
In light of the Garguilo defendants' failure to establish their prima facie entitlementto judgment as a matter of law, the Supreme Court properly denied their respectivemotions for summary judgment dismissing the complaint insofar as asserted against eachof them, regardless of the sufficiency of the plaintiff's opposing papers (seeAffordable Community, Inc. v Simon, 95 AD3d at 1048; see generally Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Furthermore, the Supreme Court properly denied that branch of the motion ofGarguilo & Orzechowski, LLP, which was for summary judgment on the thirdthird-party complaint, which alleged causes of action against the Dollinger third-partydefendants for contribution and [*3]common-lawindemnification. In the third third-party complaint, Garguilo & Orzechowski, LLP,alleged, inter alia, that if the plaintiff is able to establish that Garguilo &Orzechowski, LLP, committed malpractice, then the Dollinger third-party defendants areculpable for essentially the same conduct because they too failed to serve notice on theindividual shareholders and to take action against those shareholders to enforce thebuy-out provision of the stock agreement. Contrary to the contentions of Garguilo &Orzechowski, LLP, the Supreme Court properly denied that branch of its motion whichwas for summary judgment on the cause of action for common-law indemnification.Garguilo & Orzechowski, LLP, failed to establish, prima facie, that it was free fromnegligence or that its negligence was not a proximate cause of the plaintiff's allegeddamages (see Waggoner vCaruso, 14 NY3d 874 [2010]; Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d at 442; Raquet v Braun, 90 NY2d 177, 183 [1997]; Barnave v Davis, 108 AD3d582 [2013]). "Since the predicate of common-law indemnity is vicarious liabilitywithout actual fault on the part of the proposed indemnitee" (Konsky v Escada Hair Salon,Inc., 113 AD3d 656, 658 [2014]), Garguilo & Orzechowski, LLP, failed toestablish its prima facie entitlement to indemnification from the Dollinger third-partydefendants. The Supreme Court also properly denied that branch of the motion ofGarguilo & Orzechowski, LLP, which was for summary judgment on the cause ofthe action for contribution, as Garguilo & Orzechowski, LLP, failed to eliminatetriable issues of fact as to the relative culpability, if any, of the Dollinger third-partydefendants (see Markey vC.F.M.M. Owners Corp., 51 AD3d 734, 738 [2008]). Accordingly, the SupremeCourt properly denied that branch of the motion of Garguilo & Orzechowski, LLP,which was for summary judgment on the third third-party complaint, regardless of thesufficiency of the Dollinger third-party defendants' opposing papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d at 853). Skelos, J.P., Chambers, Hall andMaltese, JJ., concur.