Opinion
2012-02-9
Deborah KAUFMAN, Respondent–Appellant, v. MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, Appellant–Respondent, et al., Defendant.
Dewey & LeBouef, L.L.P., New York City (John M. Aerni of counsel), for appellant-respondent. Morton Povman, P.C., Forest Hills (Bruce Povman of counsel), for respondent-appellant.
Dewey & LeBouef, L.L.P., New York City (John M. Aerni of counsel), for appellant-respondent. Morton Povman, P.C., Forest Hills (Bruce Povman of counsel), for respondent-appellant.
Before: SPAIN, J.P., LAHTINEN, MALONE JR., STEIN and EGAN JR., JJ.
EGAN JR., J.
Cross appeals from an order of the Supreme Court (Devine, J.), entered April 20, 2011 in Albany County, which denied a motion by defendant Medical Liability Mutual Insurance Company for summary judgment dismissing the complaint against it.
In November 2003, Jamie Lee Norton presented at Nathan Littauer Hospital and Nursing Home in Fulton County for the birth of her second child. The child was delivered by Patricia Nguyen, an obstetrician employed by the hospital. During the course of her hospital stay, Norton—who received treatment from both Nguyen and plaintiff, also an obstetrician employed by the hospital—developed a virulent infection that ultimately necessitated extensive surgical and other medical interventions.
Norton and her spouse, derivatively, thereafter commenced a medical malpractice action against the hospital, Nguyen and plaintiff, and defendant Medical Liability Mutual Insurance Company (hereinafter defendant) assigned defendant Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. (hereinafter Carter Conboy)—a well-respected law firm engaged in the defense of medical malpractice actions—to represent them. Following a trial, a jury awarded Norton and her spouse $5.75 million in damages, which the trial court reduced to $3.5 million. Upon appeal, this Court further reduced the award of damages to $3.2 million, but otherwise affirmed ( Norton v. Nguyen, 49 A.D.3d 927, 853 N.Y.S.2d 671 [2008] ). Defendant thereafter paid the full amount of the judgment awarded to Norton and her spouse.
The jury apportioned liability between Nguyen (65%) and plaintiff (35%).
In the interim, and approximately two weeks after the verdict was rendered, plaintiff—for the first time—protested the fact that she, Nguyen and the hospital had been represented by the same attorney. In response, and upon plaintiff's request, defendant provided plaintiff—at its expense—with separate appellate counsel. Following this Court's decision in the underlying case, plaintiff commenced this action against defendant and Carter Conboy, asserting breach of contract and deceptive business practices claims against defendant and alleging legal malpractice as to Carter Conboy. After issue was joined, defendant moved for summary judgment dismissing the complaint against it. Supreme Court denied defendant's motion in its entirety, and both defendant and plaintiff now appeal.
Carter Conboy took no position on the motion, except to assert that it “did not have a conflict of interest with respect to the legal services it provided to ... plaintiff ... and that all appropriate consents and waivers were obtained.”
The stated basis for plaintiff's cross appeal is her belief that, by failing to expressly address her claim against defendant for deceptive business practices, Supreme Court “implicitly dismiss[ed]” that particular cause of action.
Initially, we agree with defendant that Supreme Court erred in failing to grant its motion for summary judgment as to plaintiff's General Business Law § 349 cause of action. “A party seeking to recover under section 349 must, as a threshold [matter], allege that the defendant's acts or practices have a broad impact on consumers at large” ( Walsh v. Liberty Mut. Ins. Co., 289 A.D.2d 842, 843–844, 734 N.Y.S.2d 710 [2001] [citation omitted]; see Elacqua v. Physicians' Reciprocal Insurers, 52 A.D.3d 886, 888, 860 N.Y.S.2d 229 [2008]; Green Harbour Homeowners' Assn. v. G.H. Dev. & Constr., 307 A.D.2d 465, 468, 763 N.Y.S.2d 114 [2003], lv. dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204, 801 N.E.2d 425 [2003] ). “Private contract disputes, unique to the parties ... [do] not fall within the ambit of the statute” ( Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 [1995] [citation omitted]; see Wellsburg Truck & Auto Sales, Inc. v. Peoples State Bank of Wyalusing, 80 A.D.3d 942, 943, 915 N.Y.S.2d 690 [2011] ). Here, plaintiff did nothing more than assert—in a conclusory and otherwise unsubstantiated fashion—that defendant “engaged in deceptive business practices” and that its conduct in this regard “was not an isolated incident.” As there is nothing in the record to suggest a pattern of consumer-oriented misconduct on the part of defendant ( compare Elacqua v. Physicians' Reciprocal Insurers, 52 A.D.3d at 888–889, 860 N.Y.S.2d 229), defendant's motion for summary judgment dismissing this particular cause of action should have been granted.
We reach a similar conclusion as to plaintiff's breach of contract claim. In support of its motion for summary judgment, defendant submitted an affidavit from one of its claims adjusters, who averred that upon its receipt, he reviewed the complaint in the Norton action, ascertained that all of the claims asserted against each of the covered insureds—the hospital, Nguyen and plaintiff—fell within the coverage of the underlying insurance policy and promptly arranged for Carter Conboy to defend the subject litigation. The adjuster further averred that defendant had no contact with either plaintiff or Nguyen between defendant's receipt of the summons and complaint and the assignment of Carter Conboy as defense counsel, and there is no evidence that plaintiff expressed any dissatisfaction with the joint representation provided by defendant until after she had sampled the verdict. Further, the underlying complaint failed to set forth any facts that would have placed defendant on notice of an actual or apparent conflict of interest. Notably, the complaint itself was so terse that it did not even hint at the particular acts of malpractice allegedly attributable to the hospital, Nguyen or plaintiff, nor did it in any way suggest that the Nortons considered one of the defendants named therein to be any more culpable than the others. Absent any other evidence suggesting an actual or apparent conflict of interest with respect to plaintiff, which the record before us fails to disclose, defendant had no duty to appoint separate counsel to represent her ( see generally Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 401 n., 442 N.Y.S.2d 422, 425 N.E.2d 810 [1981] ). Thus, we are satisfied that defendant discharged its initial burden on the motion for summary judgment, thereby imposing upon plaintiff the obligation to tender sufficient admissible proof to raise a question of fact in this regard.
This she failed to do. To the extent that plaintiff asserted—in a bill of particulars verified only by counsel—that she was “misle[d] ... on multiple occasions that the case against her would be discontinued and that [Nguyen] would be the only party to either pay a settlement or take a verdict,” we need note only that this statement fails to qualify as proof in admissible form ( see Rought v. Price Chopper Operating Co., Inc., 73 A.D.3d 1414, 1417, 901 N.Y.S.2d 418 [2010] [Rose, J., dissenting]; Matter of Allen, 210 A.D.2d 856, 857, 621 N.Y.S.2d 138 [1994]; see also Benaquista v. Burke, 74 A.D.3d 1514, 1515–1516, 902 N.Y.S.2d 235 [2010] ) and, in any event, is insufficient to raise a question of fact as to the purported conflict of interest. Accordingly, defendant's motion for summary judgment should have been granted in its entirety.
ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant Medical Liability Mutual Insurance Company and complaint dismissed against it.