| Miazga v Assaf |
| 2016 NY Slip Op 01025 [136 AD3d 1131] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| Robert A. Miazga,Appellant-Respondent, v Michael D. Assaf et al.,Respondents-Appellants. |
Robert A. Miazga, Troy, appellant-respondent pro se.
Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G. Varley ofcounsel), for respondents-appellants.
Clark, J. (1) Cross appeal from an order of the Supreme Court (Walsh, J.), enteredSeptember 19, 2014 in Albany County, which, among other things, partially granteddefendants' motion for summary judgment, and (2) appeal from an order of said court,entered March 20, 2015 in Albany County, which denied plaintiff's motion for, amongother things, reconsideration.
Plaintiff retained defendants in January 2011 to represent him in a custodyproceeding and, thereafter, in a divorce action. In April 2012, after a breakdown in theparties' relationship, defendant Michael D. Assaf requested that defendants be relieved asplaintiff's counsel and, after a hearing, the application to withdraw was granted. Plaintiffproceeded pro se in his divorce action and custody proceeding and, thereafter,commenced this action against defendants. In his complaint, plaintiff alleges, amongother things, nine causes of action with respect to defendants' representation, including,among other things, breach of a fiduciary duty, legal malpractice, defamation and breachof contract. Defendants asserted a counterclaim for, among other things, unpaid legalfees. Defendants moved for summary judgment dismissing the complaint, which plaintiffopposed. Plaintiff also cross-moved seeking partial judgment on the issue of liability forthe disclosure of an allegedly privileged/confidential email, among other things. SupremeCourt granted defendants' motion for summary judgment with respect to plaintiff's claimsof legal malpractice and breach of a fiduciary duty, [*2]fraud, defamation and failure to communicate, but deniedthe motion regarding plaintiff's breach of contract claim with respect to defendants'billing rates. Supreme Court also denied plaintiff's cross motion. Plaintiff then moved toreargue and/or renew, in addition to moving for Supreme Court's recusal. Supreme Courtdenied plaintiff's motion, adhering to its original order. Plaintiff now appeals from bothorders,[FN1] anddefendants cross-appeal from that part of Supreme Court's order as denied their motionfor summary judgment dismissing the complaint.[FN2] We affirm both orders.
We initially reject plaintiff's claim that summary judgment was premature inasmuchas depositions had not yet been completed at the time of the motion practice (see Hobler v Hussain, 111AD3d 1006, 1009 [2013]; Saratoga Assoc. Landscape Architects, Architects, Engrs. &Planners, P.C. v Lauter Dev. Group, 77 AD3d 1219, 1222 [2010]) and, turningto defendants' motion for summary judgment itself, agree with Supreme Court thatdefendants were entitled to the dismissal of certain causes of action.
Addressing plaintiff's defamation claim first, it is well settled that "statements madeby counsel and parties in the course of judicial proceedings are privileged as long as suchstatements are material and pertinent to the questions involved," and, as such, they cannotbe the basis of a defamation cause of action (Wiener v Weintraub, 22 NY2d 330,331 [1968] [internal quotation marks and citation omitted]; see Capoccia vCouch, 134 AD2d 806, 807 [1987], appeal dismissed 71 NY2d 1022[1988]). "No action for defamation exists unless the statement is . . . soneedlessly defamatory as to warrant the inference of express malice and a motivationsolely to defame" (Grasso v Mathew, 164 AD2d 476, 479 [1991], lvdismissed 77 NY2d 940 [1991], lv denied 78 NY2d 855 [1991]; see Dworkin v State of NewYork, 34 AD3d 1014, 1014-1015 [2006]).[FN3]
Here, on April 25, 2012, plaintiff sent Assaf an email indicating that theirrelationship [*3]was at an impasse and aired variousgrievances with Assaf's representation. On May 11, 2012, May 15, 2012 and May 17,2012, the parties separately sent letters to Supreme Court regarding Assaf's continuedrepresentation of plaintiff. In his letters, Assaf discussed his belief that plaintiff's claimsagainst him were false and, by way of order to show cause, moved Supreme Court torelieve him of further obligations to plaintiff. In support of his request, Assaf submittedplaintiff's email for consideration by Supreme Court.[FN4] Given that the correspondence wasrelevant and pertinent to the then-pending litigation, we agree that it is shielded by thejudicial proceedings privilege and cannot serve as the basis of plaintiff's defamationcause of action. Accordingly, Supreme Court correctly dismissed plaintiff's defamationclaim.
Turning our attention to plaintiff's claims of legal malpractice, in order to succeed onsuch a cause of action, the plaintiff must demonstrate that an attorney failed to exercisethe ordinary and reasonable skill and knowledge that a member of the legal professionpossesses (see Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]; Levine v Horton, 127 AD3d1395, 1397 [2015]; Geraciv Munnelly, 85 AD3d 1361, 1362 [2011]). The plaintiff must also establish thatthe attorney's breach of this duty proximately caused actual and ascertainable damages(see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Schrowang v Biscone, 128AD3d 1162, 1162-1163 [2015]), and show that he or she would have beensuccessful on the merits of the underlying action but for the defendant's negligence(see Levine v Horton, 127 AD3d at 1397). Thus, to succeed on their motion forsummary judgment, defendants must "present evidence in admissible form establishingthat plaintiff is unable to prove at least one of these elements" (Ehlinger v Ruberti,Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; see Sevey v Friedlander, 83AD3d 1226, 1226 [2011], lv denied 17 NY3d 707 [2011]).
Here, defendants have sufficiently demonstrated that plaintiff was unable to proveactual and ascertainable damages relating to Assaf's representation. Specifically, in theaffirmation in support of the motion for summary judgment, defense counsel points outthat, despite repeated requests, plaintiff never produced evidence supporting the damagesthat he specified in his bill of particulars and, therefore, failed to show that any suchlosses occurred. As such, we agree that defendants carried their burden of producingcompetent evidence sufficient to shift the burden to plaintiff to raise a triable issue offact. For his part, plaintiff claims that he incurred damages including, but not limited to,$55,000 in fees to defendants, payment of experts, $20,000 in expenses, an unspecifiedamount of lost income and the amount of money "expended to overcome [defendants']actions." However, absent any proof of same in the record, these statements remainspeculative assertions, which are insufficient to defeat a motion for summary judgment(see Place v Grand Union Co., 184 AD2d 817, 817 [1992]).[FN5] Thus, plaintiff failed tomeet his shifted burden.
[*4] Further,setting aside plaintiff's inability to raise an issue of fact with respect to the element ofdamages, summary judgment remains an appropriate remedy here inasmuch as plaintiff isalso unable to sufficiently demonstrate that he would have been successful on the meritsof his underlying action. In support of his opposition, plaintiff provided an affirmation byan expert, who stated that it is "arguable" that the custody matter would have beenresolved more quickly had depositions occurred earlier. However, the expert could notstate that plaintiff would have been ultimately successful. Thus, because plaintiff failedto produce evidence suggesting that, but for Assaf's actions or inaction, the underlyingmatrimonial litigation would have resulted in a more favorable outcome (see Marchell v Littman, 107AD3d 1082, 1084 [2013], lv denied 22 NY3d 856 [2013]; Sevey vFriedlander, 83 AD3d at 1227), Supreme Court properly granted defendants' motionfor summary judgment with respect to plaintiff's legal malpractice claim.
We likewise find no error in Supreme Court's dismissal of plaintiff's claims forbreach of fiduciary duty as duplicative of his legal malpractice causes of action. In theevent that a claim "arises out of the same facts as an asserted legal malpractice cause ofaction and does not allege distinct damages," that claim is deemed "duplicative of themalpractice claim" (DiTondo vMeagher, 85 AD3d 1385, 1385 [2011]; see Hyman v Burgess, 125 AD3d 1213, 1215 [2015]).Here, plaintiff fails to distinguish the basis of his malpractice and breach of fiduciaryduty causes of action. At its core, plaintiff's breach of fiduciary duty cause of action liesin Assaf's disclosure of plaintiff's email to Supreme Court. However, given that part ofplaintiff's legal malpractice claim includes the email disclosure—as per thelanguage of plaintiff's complaint—this allegation is subsumed under plaintiff'slegal malpractice claim. Thus, because plaintiff's claims all arise out of the sameallegations and facts, we find that Supreme Court properly dismissed plaintiff's breach offiduciary duty claim as duplicative of his legal malpractice claim (see Sutch v Sutch-Lenz, 129AD3d 1141, 1144 [2015]; DiTondo v Meagher, 85 AD3d at1386).[FN6]Furthermore, plaintiff's claims of breach of fiduciary duty likewise suffer from the samedeficiencies as his legal malpractice claims inasmuch as plaintiff is unable to adequatelydemonstrate causation or actual damages so as to survive a motion for summaryjudgment.
We do, however, agree with plaintiff that Supreme Court was correct in denyingdefendants' summary judgment motion on plaintiff's sixth cause of action for excessivefees. "Public policy dictates that courts pay particular attention to fee arrangementsbetween attorneys and their clients, as it is important that a fee contract be fair,reasonable, and fully known and understood by the client" (Seth Rubenstein, P.C. v Ganea,41 AD3d 54, 60 [2007] [citations omitted]). Although defendants may havesubmitted sufficient proof to demonstrate entitlement to judgment as a matter of law inthe first instance, plaintiff provided sufficient evidence in opposition to raise a triableissue of fact with respect to defendants' billing practices. Thus, summary judgment wasproperly denied on this one cause of action.
Plaintiff's remaining contentions, to the extent that they are properly before us, havebeen considered and found to be without merit.
Garry, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1:By way of his replybrief, plaintiff has withdrawn the fraud count. Therefore, Supreme Court's dismissal ofplaintiff's fraud claim will not be addressed as part of the decision herein. Additionally,in his appellate briefs, plaintiff does not address the portion of Supreme Court's orderthat denied his cross motion to strike defendants' affirmative defense with respect to lackof confidentiality or to compel discovery. Given that plaintiff did not raise these issues inhis briefs or dispute Supreme Court's decision with respect to these motions, such claimsare abandoned (see Salzer vBenderson Dev. Co., LLC, 130 AD3d 1226, 1227 n 1 [2015]; Boots v Bette & Cring,LLC, 124 AD3d 1119, 1119 n 1 [2015]).
Footnote 2:These appeals have beenconsolidated.
Footnote 3:Moreover, the Rules ofProfessional Conduct governing attorneys enumerates that "[a] lawyer may reveal or useconfidential information to the extent that the lawyer reasonably believes necessary. . . to defend the lawyer or the lawyer's employees and associates against anaccusation of wrongful conduct" (Rules of Professional Conduct [22 NYCRR 1200.0]rule 1.6 [b] [5] [i]).
Footnote 4:We note that our reviewof the record supports Assaf's position that plaintiff's email was not disclosed to anyoneother than Supreme Court.
Footnote 5:Plaintiff's seventh causeof action alleges that Assaf failed to communicate with him resulting in unspecifieddamages. Supreme Court dismissed this cause of action under the same analysis asplaintiff's legal malpractice claim. Plaintiff did not raise the dismissal of this cause ofaction on appeal and, therefore, has abandoned this claim (see Salzer v BendersonDev. Co., LLC, 130 AD3d at 1227 n 1; Boots v Bette & Cring, LLC,124 AD3d at 1119 n 1).
Footnote 6:Plaintiff sets forthallegations in his eighth and ninth causes of action that Supreme Court also correctlycharacterized as duplicative of plaintiff's legal malpractice claim and properly dismissed(see Sutch v Sutch-Lenz, 129 AD3d at 1144; DiTondo v Meagher, 85AD3d at 1386).