Opinion
Index No. 152926/2012
07-31-2018
MARDER'S ANTIQUE JEWELRY, INC., Plaintiff, v. DAVID I. BOLTON and DAVID BOLTON, P.C., Defendants.
NYSCEF DOC. NO. 65
DECISION & ORDER
Mot. Seq. 001 ARLENE P. BLUTH, JSC
The motion by defendants for summary judgment is granted.
Background
This legal malpractice action arises from an underlying case ("Underlying Case") regarding Plaintiff's attempt to recover jewelry or its monetary value from Plaintiff's cousin Toby Fischer ("Ms. Fischer") and the Provident Loan Society of New York ("Provident") (NYSCEF Doc. No. 32 at 2). Plaintiff alleges that Defendant committed legal malpractice by, inter alia, failing to prevent Provident from selling the jewelry.
Plaintiff has been in the jewelry business for several decades. In 2004, Plaintiff took 39 items of antique jewelry from its inventory and lent them to Ms. Fischer so she could photograph them in connection with her clothing business (NYSCEF Doc. No. 2 at 2). Instead of returning all the jewelry, Ms. Fischer pawned 38 items to Provident for a loan of $16,400 (NYSCEF Doc. No. 36 at 10).
Marder consulted with Defendant and alleges that Defendant told him that he could get the jewelry back by paying back Ms. Fischer's loans to Provident or he could pay Defendant legal fees to get the jewelry back. Plaintiff chose to pay Defendant rather than paying Provident his cousin's debt (or a negotiated lesser amount) and in November 2005, Plaintiff retained Defendant to sue Ms. Fischer and Provident. The Underlying Complaint seeks to recover the jewelry (replevin) or its monetary value (conversion). A preliminary injunction restraining the sale of the jewelry was obtained.
In March 2007, Defendant engaged in settlement negotiations with counsel for Ms. Fischer and Provident. After a conference before Judge Acosta in April 2007, the parties reported the case was settled and the clerk marked the case as "disposed". In reality, the case was almost settled, but a settlement was never finalized because negotiations fell through after the April 2007 conference.
In February 2009, Provident sent Plaintiff a notice of intent to sell the jewelry (NYSCEF Doc. No. 36 at ¶27). In June 2010, Defendant moved to have the case changed from "disposed" to "active". However, Defendant did not bring an Order to Show Cause seeking to reinstate the stay and in July 2010 Provident sold the jewelry. Eventually, in June 2011 the motion to "activate" the case was granted. Plaintiff then fired Defendant and retained new counsel.
In October 2011, under the new counsel, a settlement was reached with Ms. Fischer and Provident. The malpractice alleged here involves the delay in restoring the case to active status and the failure to maintain or reinstate the stay preventing Provident from selling the jewelry. Plaintiff claims that he was compelled to accept an undesirable settlement with the defendants in the Underlying Case and that legal malpractice occurred with Defendant "failing to prosecute the lawsuit against Provident for three years, failing to complete discovery, failing to file a note of issue in compliance with the March 2005 order, allowing the case to get marked 'settled' in error, failing to restore the case in a timely fashion in 2009 after Provident gave notice that it intended to sell the jewelry; misleading the court as to the reasons for his failure to prosecute the case" (NYSCEF Doc. No. 58 at 12).
Defendant moves for summary judgment and claims that Plaintiff failed to prove how Defendant's delay in restoring the Underlying Case caused damage to Plaintiff. Defendant also claims that Provident's sale of the jewelry did not prejudice Plaintiff in the Underlying Case because Plaintiff had all the documents he needed and was at all times able to act as his own expert due to his decades of experience with antique jewelry appraising.
Discussion
To be entitled to summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]).
"In an action to recover damages for legal malpractice, a plaintiff 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. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]). Furthermore, settlement of the underlying case, "does not present an intervening cause so as to bar a malpractice action" (Jones Long Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 175, 674 NYS2d 280, 285 [1st Dept 1998]; see Homes Ins. Co. v. Liebman, Adolf & Charme, 257 AD2d 424, 424, 683 NYS2d 519, 520 [1st Dept 1999] [holding that settlement, when compelled by an attorney's breach of the standard of care, does not bar a claim for legal malpractice]).
Even though Plaintiff was unable to recover the jewelry in the Underlying Case, he still would have been able to recover the full monetary value of the jewelry, which would have been sufficient as Plaintiff did not claim that the jewelry was sentimental or otherwise worth more than just its monetary value (Ross v. Louise Wise Services, Inc., 8 NY3d 478, 489, 836 NYS2d 509, 515-516 [2007] [holding that "compensatory damages are intended to have the wrongdoer make the victim whole - to assure that the victim receive fair and just compensation commensurate with the injury sustained"]). Marder is an expert at valuing antique jewelry and could have established the value of the jewelry without inspecting the jewelry itself. Because Plaintiff did not need the actual jewelry to assess its value, he was not prejudiced from the sale of the jewelry. If the Underlying Case had gone to trial, then Plaintiff would have been able to obtain a money judgment for the full value of the jewelry, regardless of whether the jewelry was sold; this means that Plaintiff did not suffer ascertainable and actual damages, which is the crux of a legal malpractice claim.
Marder could accurately assess the monetary value of the jewelry through photographs, invoices, and his expertise and knowledge of the jewelry (NYSCEF Doc. No. 30 at 61).
Any claim by Plaintiff that he desired to repossess the jewelry more than he desired to obtain its monetary value is inconsistent with his actions. Plaintiff originally made the decision not to pay Ms. Fischer's loans to recover the jewelry and instead chose to pay a lawyer and commence the Underlying Case. While Marder was understandably reluctant to pay his cousin's debt to recover his own jewelry, pursuing legal action instead of promptly recovering the jewelry was a business decision made by Plaintiff, not Defendant. Likewise, Plaintiff's decision to settle instead of going to trial to prove the value of the jewelry and obtain a judgment therefor was a business decision by Plaintiff. Plaintiff's business decisions do not constitute Defendant's legal malpractice.
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is granted and the case is dismissed.
This is the Decision and Order of the Court. Dated: July 31, 2018
New York, New York
/s/ _________
ARLENE P. BLUTH, JSC