Opinion
2014-06-10
Eric FRANKEL, as Executor of the Estate of Gloria Frankel, deceased, Plaintiff–Appellant, v. VERNON & GINSBURG, LLP, et al., Defendants–Respondents.
Garvey Schubert Barer, New York (Maurice W. Heller of counsel), for appellant. Gordon & Rees LLP, New York (Bran C. Noonan of counsel), for respondents.
Garvey Schubert Barer, New York (Maurice W. Heller of counsel), for appellant. Gordon & Rees LLP, New York (Bran C. Noonan of counsel), for respondents.
MAZZARELLI, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered October 24, 2013, which, to the extent appealed from as limited by the briefs, granted defendants' pretrial motion in limine to preclude plaintiff from offering the testimony of his legal malpractice expert, the testimony of the alleged tortfeasors in the underlying action, evidence relating to defendants' alleged negligence in prosecuting the underlying action, and evidence of post-settlement damages, unanimously modified, on the law, to deny the motion except as to post-settlement damages, and otherwise affirmed, without costs.
The order is appealable, since it did not merely determine the admissibility of evidence, but also limited the scope of issues to be tried ( see Rott v. Negev, LLC, 102 A.D.3d 522, 957 N.Y.S.2d 860 [1st Dept.2013];CPLR 5701[a][2][iv], [v] ).
Supreme Court incorrectly precluded plaintiff's legal malpractice expert from testifying on the ground that the initial disclosure was insufficiently detailed. Defendants objected to the disclosure's sufficiency for the first time in their omnibus motion in limine, presented to the court on the day trial was to begin. Any deficiency was cured by plaintiff's service of a more detailed supplemental disclosure four days later. Moreover, defendants were aware of the substance of the expert's proposed testimony because plaintiff had previously submitted the expert's affidavit in opposition to their motion for summary judgment. As Supreme Court found, defendants have not established that they were prejudiced by receipt of the expert disclosures 4 days after the 30–day minimum set by local rule, or that the delay was willful or intentional ( see Ramsen A. v. New York City Hous. Auth., 112 A.D.3d 439, 440, 976 N.Y.S.2d 73 [1st Dept.2013] ).
To establish causation in this legal malpractice action, plaintiff must show that his decedent would have prevailed in the underlying action but for the attorney defendants' negligence ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] ). In the underlying action, plaintiff's decedent asserted causes of action for breach of the warranty of habitability against her cooperative apartment building and for private nuisance against her upstairs neighbors. Accordingly, at trial, to demonstrate the merit of the underlying claim of private nuisance, plaintiff should be permitted to prove, among other things, that his decedent's neighbors intended to cause the nuisance ( see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570–571, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] ). The neighbors' testimony is relevant to the issue of intent. Therefore, the court improperly precluded that testimony.
On a prior appeal, this Court affirmed the denial of defendants' motion for summary judgment dismissing the legal malpractice cause of action ( see101 A.D.3d 447, 956 N.Y.S.2d 486 [1st Dept.2012] ). Accordingly, Supreme Court should not have precluded all evidence relating to plaintiff's claim that defendants improperly prosecuted the underlying action, since it essentially granted summary judgment dismissing that portion of the legal malpractice claim ( see generally Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 811, 758 N.Y.S.2d 394 [2d Dept.2003] ).
Supreme Court properly precluded evidence of damages incurred after the October 2004 settlement of the underlying action. Although plaintiff seeks compensatory damages for attorneys' fees allegedly incurred in filing a post-settlement Housing Court action seeking relief he unsuccessfully sought in the underlying action, that action was dismissed on the merits.