Opinion
INDEX NO. 160882/2019
08-06-2020
LINDENWOOD VILLAGE, SECTION C COOPERATIVE CORP., Plaintiff, v. SETH DENENBERG, JACQUELINE HANDLE-HARBOUR and SPERBER DENENBERG & KAHAN, P.C., Defendants.
NYSCEF DOC. NO. 32 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 were read on this motion to/for DISMISSAL.
In this legal malpractice action, defendants Seth Denenberg ("Denenberg"), Jacqueline Handle-Harbour ("Handle-Harbour") and Sperber Denenberg & Kahan, P.C. ("SD&K") (collectively "defendants") move, pursuant to CPLR 3211(a)(1) & (7), for dismissal of the complaint (Doc. 14). In the alternative, defendants move, pursuant to CPLR 3211(a)(7), for dismissal of the action as against Denenberg and Handel-Harbor, as agents for a disclosed principal (Doc. 14). Plaintiff Lindenwood Village, Section C Cooperative Corp. ("Lindenwood") opposes the motion (Docs. 23-24). After a review of the parties' contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND:
The underlying facts of this case are set forth in detail in the decision and order of the Appellate Division, Second Department, entered November 30, 2016 ("the 11/30/16 order"), which modified an award by the New York State Division of Human Rights ("the SDHR") against Lindenwood for compensatory and punitive damages, as well as a civil penalty (Doc. 18) (see Delkap Management, Inc. v New York State Div. of Human Rights, 144 AD3d 1148 (2d Dept 2016), revd 33 NY3d 925 [2019]). However, the facts are briefly summarized as follows.
Since 2010, defendants represented Lindenwood and its managing company, Delkap Management ("Delkap") (collectively "respondents"), in a proceeding before the SDHR against allegations by a disabled shareholder that respondents denied her request to keep a dog as a reasonable accommodation and retaliated against her by removing her parking privileges in violation of NY Executive Law § 296 (Doc. 17).
In September 2013, an administrative law judge for the SDHR issued a recommendation that respondents pay complainant $5,000 in compensatory damages for mental anguish and humiliation as a result of the discrimination, with 9% interest; $10,000 in punitive damages; and civil fines in the amount of $5,000, with 9% interest, to be paid to the State of New York (Doc. 17). The Acting Commissioner of the SDHR adopted the recommendation in a final order dated December 24, 2013 (Doc. 17).
Respondents appealed the Acting Commissioner's final order and, in the 11/30/16 order, the Appellate Division, Second Department modified the agency's determination and remitted the matter to the SDHR for a new award as to compensatory and punitive damages, as well as the civil penalty, each in an amount not to exceed $2,500 (Doc. 18) (see Delkap Management, Inc. v New York State Div. of Human Rights, 144 AD3d at 1148-1149).
It is undisputed that defendants failed to serve the SDHR with the 11/30/16 order, with notice of entry (Doc. 15 ¶ 6). Instead, in August 2018, the SDHR served Lindenwood with notice of entry and moved for leave to appeal the Appellate Division's decision, which motion was granted by the Court of Appeals (see Delkap Management, Inc. v New York State Div. of Human Rights, 32 NY3d 910 [2018]). By decision and order dated March 26, 2019, the Court of Appeals reinstated the SDHR's original decision and order in its entirety, finding that the Appellate Division erred in setting aside a portion of the SDHR's determination (Doc. 19).
In November 2019, Lindenwood filed a summons and complaint against its former attorneys Denenberg and Handel-Harbour, and their law firm SD&K, asserting a claim of legal malpractice (Docs. 1-2). Lindenwood claimed, inter alia, that defendants were negligent in failing to serve the SDHR with the decision and order, with notice of entry, within a reasonable time to start the SDHR's 30-day deadline to appeal (Doc. 2 ¶ 50). This negligence, alleged Lindenwood, allowed the SDHR to appeal the Appellate Division's decision and order 644 days after it was issued, resulting in litigation expenses to oppose the appeal, as well as the reinstatement of the original damages award and civil penalty (Doc. 2 ¶ 54-63).
In lieu of an answer, defendants filed the instant motion seeking to dismiss the complaint (Docs. 15-21). In support of the motion, defendants submit, inter alia, an attorney affirmation by Handel-Harbour and a memorandum of law, wherein they assert that Lindenwood's legal malpractice claim is premised on the assumption that, had defendants served the SDHR with notice of entry immediately following the Appellate Division's decision, the SDHR would not have appealed (Docs. 15 ¶ 12; 16 at 6). Defendants contend, inter alia, that these allegations are "grossly speculative" and insufficient to state a cause of action for legal malpractice (Docs. 15 ¶ 12; 16 at 3). Additionally, defendants maintain that, since "the rules of New York Courts" do not contain any deadline to serve a notice of entry, defendants owed Lindenwood no duty to expediently file the notice of entry and that the alleged failure is thus insufficient to sustain a claim for legal malpractice (Docs. 15 ¶ 9; 16 at 2-3).
In the alternative, defendants argue that the action must be dismissed as against the individual defendants pursuant to CPLR 3211(a)(7) because, since SD&K was retained to represent respondents in the underlying proceeding, the individual defendants cannot be held contractually liable for said damages (Docs. 15 ¶ 13; 16 at 7).
In opposition to the motion, Lindenwood urges this Court to disregard Handel-Harbour's affirmation on the ground that, as a pro se party to the action, her submission of an affirmation instead of an affidavit was improper (Doc. 24 at 3). Lindenwood also refutes defendants' argument that, because CPLR 5513 imposes no fixed deadline to file a notice of entry, no negligence can be attributed to such delay (Doc. 24 at 4-5). It further argues that defendants are the proximate cause of its damages because, "[h]ad the [d]efendants complied with CPLR 5513, the case could not have continued to the Court of Appeals" (Doc. 24 at 5). Additionally, Lindenwood contends that the individual defendants' status as agents of the disclosed principal does not relieve them of liability for their own negligence and, moreover, that defendants have failed to establish its entitlement to dismissal of the complaint based on documentary evidence (Doc. 24 at 7).
In reply, defendants submit, inter alia, Handel-Harbour's previously submitted affirmation in affidavit form (Doc. 26) LEGAL CONCLUSIONS:
As an initial matter, "[a]lthough an attorney is authorized to submit an affirmation in lieu of an affidavit in most circumstances" (LaRusso v Katz, 30 AD3d 240, 243 [1st Dept 2006]; see CPLR 2106), an affirmation is not allowed where, as here, the attorney is a party to the action (see LaRusso v Katz, 30 AD3d at 243; Pisacreta v Joseph A. Minniti, P.C., 265 AD2d 540, 540-541 [2d Dept 1999]). However, since defendants cured the technical defect by submitting an affidavit in reply that is identical in all other respects to the affirmation initially submitted, the original defect in form does not warrant denial of the motion (see CPLR 2001; Cleasby v Acharya, 150 AD3d 605, 605 [1st Dept 2017]; Matos v Schwartz, 104 AD3d 650, 653 [2d Dept 2013]).
The motion is granted and the complaint is dismissed for failure to state a cause of action. It is well-settled that, "[w]hen assessing a CPLR 3211(a)(7) motion to dismiss, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory" (Grassi & Co., CPAS, P.C. v Honka, 180 AD3d 564, 564-565 [1st Dept 2020]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
As pertinent here, "[a]n action for legal malpractice requires proof of three elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages" (Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998]). The allegations must demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Kaplan v Conway & Conway, 173 AD3d 452, 452 [1st Dept 2019] [internal quotation marks and citations omitted]). Specifically, plaintiff must allege "that 'but for' defendant['s] malpractice, plaintiff would not have suffered 'actual ascertainable damages'" (Picarella v Liddle & Robinson L.L.P., 2019 NY Slip Op 30440[U], 2019 NY Misc LEXIS 765, *19-20 [Sup Ct, NY County 2019], quoting Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002]) and "[s]peculation as to what might have occurred if the attorney acted differently under the circumstances does not establish 'but for' causation" (Picarella v Liddle & Robinson L.L.P., 2019 NY Misc LEXIS 765 at *20; see Wexler v Shea & Gould, 211 AD2d 450, 451 [1st Dept 1995]).
Since Lindenwood's legal malpractice claim relies predominantly on the speculative conclusion that "[h]ad the [d]efendants complied with CPLR 5513, the case could not have continued to the Court of Appeals," the allegations are insufficient to support a legal malpractice claim. Although this Court is persuaded that defendants' delay in filing the notice of entry was a lapse in the exercise of professional diligence (see generally Lappin v Greenberg, 34 AD3d 277, 279-280 [1st Dept 2006]), it cannot be ascertained whether a more prompt filing of the notice of entry by defendants would have prevented the SDHR from appealing. Moreover, the Court of Appeals rendered its decision based on the same facts that would have been presented to the Court had the SDHR filed its appeal sooner. Thus, the damages awarded to the complainant, the civil penalty, and all associated costs incurred for defending the appeal would have been the same even had there been no delay in filing the notice of entry. Based on the foregoing, Lindenwood's factual allegations fail to support the element of proximate cause (see Levine v Lacher & Lovell-Taylor, 256 AD2d at 149-150; Gersh v Nixon Peabody LLP, 2017 NY Slip Op 30363[U], 2017 NY Misc LEXIS 682, *18-19 [Sup Ct, NY County 2017]; Caso v Sklarin, 2016 NY Misc LEXIS 6863, *12-13 [Sup Ct, NY County May 26, 2016, No. 159192/2015]).
The remaining arguments are either without merit or need not be addressed given the findings above.
Therefore, in accordance with the foregoing, it is hereby:
ORDERED that defendants Seth Denenberg, Jacqueline Handle-Harbour and Sperber Denenberg & Kalian, P.C.'s motion to dismiss, pursuant to CPLR 3211(a)(7), is granted and the complaint is dismissed; and it is further
ORDERED that, within 20 days after this order is uploaded to NYSCEF, counsel for defendants shall serve a copy of this order, with notice of entry, on plaintiff, as well as on the County Clerk (60 Centre Street, Room 141 B), who is directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.govisupctmanh)]; and it is further
ORDERED that this constitutes the decision and order of the Court. 8/6/2020
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.