| Levine v Horton |
| 2015 NY Slip Op 03021 [127 AD3d 1395] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1]
| Paul A. Levine, as Chapter 7 Trustee of Hamilton Ferryet al., Respondent, v Ralph A. Horton, Defendant, and Mark A. Young,Appellant. |
Goldberg Segalla, LLP, Albany (Latha Raghavan of counsel), for appellant.
LaFave Wein & Frament, PLLC, Guilderland (Paul H. Wein of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (McNamara, J.), enteredDecember 5, 2013 in Albany County, which, among other things, partially denieddefendant Mark A. Young's motion for summary judgment dismissing thecomplaint.
Plaintiff is the trustee in bankruptcy of the former owners (hereinafter the owners) ofa gas station and convenience store that sustained damage in November 2002 when a fueltruck collided with a dump truck, resulting in a fuel spill and an explosion on theirproperty. In December 2006, after the Department of Environmental Conservationdetermined that the site had been remediated and closed its spill file, the ownerscommenced an action in Supreme Court against the operator, owner and insurer of thefuel truck (hereinafter the fuel truck defendants), among others, to recover propertydamages and lost revenue allegedly caused by the accident. However, when a January2007 appraisal of the property reflected no loss of value due to the fuel spill, the owners'counsel was unwilling to proceed with the action, prompting the owners to retaindefendant Mark A. Young, who took over the litigation in October 2007. Faced withdiscovery deadlines, Young obtained a new discovery schedule. Prior to its expiration,however, the fuel truck defendants made a motion seeking dismissal of the action on thegrounds that the owners had not responded to their discovery demands and were unableto establish any damages [*2]stemming from the accident.The remaining defendants then moved for summary judgment dismissing the complaint.The motions were heard together and Supreme Court (Demarest, J.) noted that, on behalfof the owners, Young opposed both motions as summary judgment motions, his responseto defendants' demand for a bill of particulars had limited the owners' request fordamages to the diminution of the value of their property due to the stigma resulting fromthe spill and, significantly, the January 2007 appraisal revealed that any remaining effectfrom such stigma was nominal. The court then dismissed the action based on the January2007 appraisal negating the stigma argument and the owners' failure to provide anyadmissible, non-speculative evidence of damages. Young filed a notice of appeal onbehalf of the owners, but then terminated his representation.
As a consequence of the owners' ongoing financial difficulties, the property was soldat foreclosure and they filed Chapter 7 bankruptcy petitions. Rather than perfect theappeal on behalf of the bankruptcy estate, however, plaintiff commenced this action inMarch 2011 alleging, among other things, that Young had committed legal malpracticein his handling of the damages issue in the underlying action. After joinder of issue anddiscovery, Young moved for summary judgment dismissing the complaint against himand plaintiff cross-moved for summary judgment on the issue of liability. Finding issuesof fact as to whether Young was negligent and whether his alleged negligence causedany damages to the owners, Supreme Court (McNamara, J.) denied Young's motion forsummary judgment as well as plaintiff's cross motion for summary judgment. Young nowappeals.
We cannot agree with Young's argument that he is entitled to dismissal of the legalmalpractice action. Legal malpractice is established by evidence that an attorney" 'failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession which results in actual damages to aplaintiff, and that the plaintiff would have succeeded on the merits of the underlyingaction "but for" the attorney's negligence' " (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert deniedsub nom Spiegel v Rowland, 552 US 1257 [2008], quoting AmBase Corp. v Davis Polk& Wardwell, 8 NY3d 428, 434 [2007]; accord Hyman v Schwartz, 114 AD3d 1110, 1112 [2014],lv dismissed 24 NY3d 930 [2014]). In order to succeed on his motion forsummary judgment, Young was required to establish the absence of negligence, or thatany negligence on his part was not the cause of any actual or ascertainable damages tothe owners (see Geraci vMunnelly, 85 AD3d 1361, 1362 [2011]; Guiles v Simser, 35 AD3d 1054, 1055 [2006]; Tabner v Drake, 9 AD3d606, 610 [2004]).
In support of his motion, Young submitted an expert affidavit opining that he wasnot negligent because he had engaged the services of an expert who submitted a reportsuggesting that the spill site had not been completely remediated and the discoveryschedule had not yet expired. Thus, Young argues, he was still in the process ofobtaining additional proof of damages and had adequately opposed the fuel truckdefendants' motion. In opposition, plaintiff submitted an expert affidavit alleging thatYoung was negligent because he failed to conduct any relevant discovery prior to themotions being made, mistakenly limited the owners' damages in their bill of particulars tothe stigma associated with the property and failed to allege or establish the existence ofthe loss of revenue and property damages sustained by the owners. In view of thecompeting opinions regarding the adequacy of Young's representation, we agree withSupreme Court that issues of fact exist requiring a trial (see M & R Ginsburg, LLC vSegal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1209 [2011]; Maddux v Schur, 16 AD3d873, 874 [2005]). Further, we cannot agree with Young's contention that plaintiff'sfailure to appeal the order dismissing the underlying action precluded plaintiff's claim forlegal malpractice, inasmuch as we are not persuaded that an appeal would have beenlikely to succeed (see Grace vLaw, 24 NY3d 203, 210-211 [2014]).
[*3] Young also argues in the alternative that the ownersdid not sustain any damages as a result of the dismissal of their underlying action and,therefore, would not have succeeded on its merits "but for" his alleged negligence. Insupport of this argument, Young relies on the January 2007 appraisal reflecting that thevalue of the property was the same in January 2007 as it was prior to the fuel spill inNovember 2002, the fact that the Department of Environmental Conservation had closedits file on the spill, and that the owners had been reimbursed by their own insurer for allof the damages their adjuster had claimed to be caused by the accident. As we havenoted, however, Young's own expert called the remediation of the site into question.Moreover, the owners alleged that their damages included loss of revenue caused by thepumps not operating properly after the explosion, and Young himself testified at hisdeposition that he believed that the owners had been damaged above and beyond theamount that they had been paid by their insurer. Furthermore, plaintiff submitted anaffidavit from a real estate appraiser opining that a stigma had indeed attached to theproperty as a result of the spill and that the accident had caused a decline in the gasstation's gross revenue. Although Young argues that a decline in gross revenue isinsufficient to establish damage, that argument is countered by plaintiff's contention thatthe owners' prior revenue stream was able to cover their expenses and, with the decreasecaused by the accident, they lost the ability to stay current on their mortgage, which led tothe foreclosure on their property where both their business and their home were located.Under these circumstances, we agree with Supreme Court that issues of fact exist as towhether the owners were damaged by the alleged malpractice (see Lue v Finkelstein &Partners, LLP, 94 AD3d 1386, 1389 [2012]; M & R Ginsburg, LLC vSegal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d at 1210-1211; Cramer vEnglert, 262 AD2d 827, 831 [1999]). Given the existence of these questions of fact,we likewise find no basis for plaintiff's request that we grant his cross motion forsummary judgment.
Peters, P.J., McCarthy and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.