Opinion
517712.
10-30-2014
Deborah KAUFMAN, Appellant, v. MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, Defendant, and Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Respondent.
Morton Povman, PC, Forest Hills (David M. Samel, New York City, of counsel), for appellant. Martin Clearwater & Bell, LLP, New York City (Barbara D. Goldberg of counsel), for respondent.
Morton Povman, PC, Forest Hills (David M. Samel, New York City, of counsel), for appellant.
Martin Clearwater & Bell, LLP, New York City (Barbara D. Goldberg of counsel), for respondent.
Before: LAHTINEN, J.P., ROSE, EGAN JR. and LYNCH, JJ.
Opinion
LAHTINEN, J.P.Appeal from an order of the Supreme Court (Devine, J.), entered January 22, 2013 in Albany County, which, among other things, granted a motion by defendant Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. for summary judgment dismissing the complaint against it.
The pertinent facts are set forth in an earlier appeal in this action (92 A.D.3d 1057, 938 N.Y.S.2d 367 [2012] ), as well as an appeal in the underlying medical malpractice case where the legal malpractice alleged herein purportedly occurred (Norton v. Nguyen, 49 A.D.3d 927, 853 N.Y.S.2d 671 [2008] ). Briefly stated, plaintiff and Patricia Nguyen, both physicians practicing obstetrics and gynecology, and their employer, Nathan Littauer Hospital and Nursing Home, were sued by Jamie Lee Norton (and her husband derivatively) for medical malpractice. Plaintiff, Nguyen and the hospital were insured by defendant Medical Liability Mutual Insurance Company, which assigned defense of the case to defendant Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. (hereinafter defendant). The Norton action proceeded to a jury trial, where defendant represented plaintiff, Nguyen and the hospital. The jury found in favor of the Nortons, apportioning liability between plaintiff (35%) and Nguyen (65%), and awarding damages that were eventually reduced to $3.2 million. Plaintiff commenced this action asserting, among other things, that defendant's representation of all defendants in the Norton action and use of a “united front” defense resulted in a conflict of interest to the detriment of plaintiff, and constituted legal malpractice under the circumstances. Supreme Court granted defendant's motion for summary judgment dismissing the complaint and plaintiff appeals.
Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits “but for” her attorney's negligence and she sustained actual and ascertainable damages (see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338 [2012] ; AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ; Country Club Partners, LLC v. Goldman, 79 A.D.3d 1389, 1391, 913 N.Y.S.2d 803 [2010] ). On a motion for summary judgment, defendant has the initial burden of presenting evidence “establishing that plaintiff is unable to prove at least one of these elements” (Geraci v. Munnelly, 85 A.D.3d 1361, 1362, 924 N.Y.S.2d 693 [2011] [internal quotation marks and citation omitted]; see Guiles v. Simser, 35 A.D.3d 1054, 1055, 826 N.Y.S.2d 484 [2006] ). “[I]f the movant is successful the opposing party must then submit proof in admissible form sufficient to create a question of fact requiring a trial” (Parmisani v. Grasso, 218 A.D.2d 870, 871, 629 N.Y.S.2d 865 [1995] [internal quotation marks and citation omitted]; see Country Club Partners, LLC v. Goldman, 79 A.D.3d at 1391–1392, 913 N.Y.S.2d 803 ). Supreme Court determined that defendant met its burden as to each of the elements of negligence, proximate cause and damages, and that plaintiff failed to submit sufficient proof to raise a triable issue as to all those elements.
Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff's contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the Norton verdict, is unavailing since “the established rule limit[s] recovery in legal malpractice actions to pecuniary damages” (Dombrowski v. Bulson, 19 N.Y.3d at 352, 948 N.Y.S.2d 208, 971 N.E.2d 338 ; see Guiles v. Simser, 35 A.D.3d at 1056, 826 N.Y.S.2d 484 ; Wilson v. City of New York, 294 A.D.2d 290, 292, 743 N.Y.S.2d 30 [2002] ). Plaintiff continued working at the hospital after the Norton verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. Indeed, Nguyen, who had been assigned more culpability than plaintiff, had her contract renewed. Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the Norton verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital's other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the Norton verdict are speculative and unsupported in this record (see generally Brodeur v. Hayes, 18 A.D.3d 979, 981, 795 N.Y.S.2d 761 [2005], lv. dismissed and denied 5 N.Y.3d 871, 808 N.Y.S.2d 134, 842 N.E.2d 19 [2005] ).
Defendant met its burden of establishing the absence of actual and ascertainable damages, and plaintiff failed to raise a triable issue on such element. Therefore, the legal malpractice claim was properly dismissed. It is not necessary to discuss the other elements of the legal malpractice claim found lacking by Supreme Court.
ORDERED that the order is affirmed, with costs.
ROSE, EGAN JR. and LYNCH, JJ., concur.