Opinion
INDEX NO. 155098/13
05-13-2014
CIE SHARP, SHARP REALTY LLC and LINDA SHARP, Plaintiffs, v. KRISHMAN CHITTUR, ESQ., ANDREY STRUTINSKIY, ESQ., and CHITTUR & ASSOCIATES, P.C., Defendants.
, J.:
In this action for legal malpractice, plaintiffs pro se seek $6,000,000 in compensatory, punitive, consequential and treble damages. In lieu of answering, defendants pro se move to dismiss the complaint on various grounds. Plaintiff Cie Sharp opposes the motion and cross-moves for a default judgment or summary judgment against defendants.
Defendants motion to dismiss is granted, as plaintiffs' legal malpractice claims are barred by the order rendered in the underlying action permitting defendants to withdraw and recognizing their claim to a charging lien on account of their services in that action. See Molinaro v. Bedke, 281 AD2d 242 (1 Dept 2001).
It has long been the law in New York that a judicial determination fixing the value of a professional's services necessarily decides there was no malpractice. See Blair v. Bartlett, 75 NY 150 (1878). Thus, a plaintiff's claim for legal malpractice is barred by the attorney's successful prosecution of a lien proceeding to recover fees for the same legal services that plaintiff alleges were negligently performed. See Lusk v. Weinstein, 85 AD3d 445 (1 Dept), lv app den 17 NY3d 709 (2011); Kinberg v. Garr, 28 AD3d 245 (1 Dept 2006); Coburn v. Robson & Miller, LLP, 13 AD3d 323 (1 Dept 2004); Smira v. Roper, Barandes & Fertel, LLP, 302 AD2d 305 (1 Dept 2003); Molinaro v. Bedke, 281 AD2d 242 (1 Dept 2001); Chalpin v. Caro, 265 AD2d 155 (1 Dept 1999); Koppelman v. Liddle, O'Connor, Finkelstein & Robinson, 246 AD2d 365, 366 (1 Dept 1998); Summit Solomon & Feldesman v. Matalon, 216 AD2d 91 (1Dept), lv app den, 86 NY2d 711 (1995); John Grace & Co., Inc. v. Tunstead, Schechter & Torre, 186 AD2d 15, 19 (1 Dept 1992). Even if plaintiff did not raise any issue of malpractice in the proceeding to determine the attorney's lien, the cases cited above uniformly hold that a court's determination fixing the value of an attorney's professional services, necessarily decides there was no malpractice, even though the issue was not specifically raised. See Blair v. Bartlett, supra; Coburn v. Robson & Miller, LLP, supra; Chalpin v. Caro, supra; Koppelman v. Liddle, O'Connor, Finkelstein & Robinson, supra; Summit Solomon & Feldesman & Matalon, supra; John Grace & Co, Inc. v. Tunstead, Schechter & Torre, supra.
Here, the record in the underlying action, 73 Eldert LLC v. Sharp Realty, LLC, Linda Sharp, Cie Sharp, Sharp Family Realty LLC, Michael Sharp and Bruce Caputo, Index No. 502964/12, Supreme Court, County of Kings, shows that by order to show cause dated October 26, 2012, the law firm of Chittur & Associates, P.C. moved to be discharged as attorneys of record for Sharp Realty, LLC, Linda Sharp and Cie Sharp, and for a determination that Chittur & Associates, P.C. had a charging lien in the amount of $67,060. Notably, Cie Sharp submitted an affidavit in opposition to that motion, dated January 8, 2013, explicitly alleging that attorney Krishman Chittur and his firm Chittur & Associates, P.C. committed legal malpractice. While the record before this court does not reveal what occurred in the interim, the record does show that on February 13, 2013, the Hon. Carolyn E. Demarest issued an order granting "on consent," the motion by Chittur & Associates, P.C. to be discharged, and referring the "issue of fees owed" to a "Referee/JHO for determination."
On April 3, 2013, the Hon. Lawrence Knipel issued a JHO/Special Referee Order, referring the issue of attorney's fees to a special referee to hear and determine. By order dated June 24, 2013 and filed October 7, 2014, Referee Miriam P. Sunshine determined, "after a hearing and upon the papers submitted," that Chittur & Associates, P.C, "have earned a fee of $55,200.00 to date and an additional $18,750.00 if and when the subject property is sold."
The foregoing order fixing the amount of defendants' charging lien, necessarily included a finding of no malpractice. See Coburn v. Robson & Miller, LLP, supra; Chalpin v. Caro, supra; Koppelman v. Liddle, O'Connor, Finkelstein & Robinson, supra; Summit Solomon & Feldesman & Matalon, supra; John Grace & Co, Inc. v. Tunstead, Schechter & Torre, supra. Plaintiffs, therefore, are precluded from maintaining the instant action for legal malpractice, and defendants' are entitled to dismissal of the complaint. See Coburn v. Robson & Miller, LLP. supra; Molinaro v. Bedke, supra.
In view of this conclusion, the court need not address the additional grounds for defendants' motion to dismiss, and plaintiffs' motion for a default judgment or for summary judgment is denied as moot.
Accordingly, it is
ORDERED that defendants' motion to dismiss is granted and the complaint is dismissed in its entirety, and the clerk is directed to enter judgment accordingly; and it is further
ORDERED that plaintiffs' cross-motion is denied as moot.
ENTER:
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J.S.C.