Opinion
Index 513779/19
01-19-2022
James Postiglione and Joni Postiglione, Plaintiffs, v. Sacks & Sacks, LLP and Daniel M. Weir, Defendants.
Unpublished Opinion
PRESENT: HON. KAREN B. ROTHENBERG, Justice.
Hon. Karen B. Rothenberg J. S. C.
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 83, 85-95
Opposing Affidavits (Affirmations) 96-117
Upon the foregoing papers in this legal malpractice action, defendants Sacks & Sacks, LLP (Sacks) and Daniel M. Weir (Weir) (collectively, defendants) move (in motion sequence [mot. seq.] four) for an order: (1) dismissing the amended complaint, pursuant to CPLR 3211 (a) (1) and (a) (7), and (2) staying discovery, pursuant to CPLR 3214, pending a decision from the Appellate Division on their appeal from the denial of their prior motion to dismiss the original complaint.
Background
Plaintiff James Postiglione (Postiglione) and his wife, Joni Postiglione (collectively plaintiffs), commenced this legal malpractice action against their former attorneys for allegedly failing to sue the proper parties after Postiglione was injured on April 13, 2016 while working at a construction site at Floyd Bennett Field in Brooklyn (Hangar B or the site). Postiglione was injured when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with James Postiglione's company, Global International Windows, LLC (Global) to remove and install windows at Hangar B.
On August 30, 2016, plaintiffs commenced a personal injury action under the Labor Law against Nagan, as the general contractor, and the City of New York (the City), as owner and/or lease holder of the site (see Postiglione, et ano. v City of New York, et ano., Kings County index No. 515241/16 [the Underlying Personal Injury Action]). In that action, which has since been discontinued against all parties, plaintiffs were represented by attorney Weir of the Sacks law firm, the defendants in this legal malpractice case.
On June 21, 2019, plaintiffs commenced this legal malpractice action by filing a summons and a complaint which alleged that defendants incorrectly sued the City in the underlying action as the City did not own or control the site which was in fact owned and controlled the federal government, NPS and/or its agents. The original complaint also alleged that defendants departed from the care, skill and diligence commonly possessed by members of the legal community by failing to timely sue the federal government within the statute of limitations which expired on April 13, 2018.
The original complaint further alleged that prior to ordering windows for the project, Postiglione was allegedly "required" to meet with "Theresa," an NPS employee, who walked him up to the site and told him where he was and was not permitted to walk while performing work. Prior to starting work, Postiglione was again required to meet with Theresa, who reminded him where he was and was not permitted to walk. Postiglione allegedly fell in an area where Theresa had not prohibited him from walking but was a location which was not the subject of his window replacement contract.
The original complaint alleged that the federal government was aware of the deteriorated condition of Hangar B's second floor and knew that a subcontractor, such as Postiglione, would have to traverse dangerous areas to perform repairs because the federal government continued to occupy the site while repairs were being made. And that the federal government had a duty to provide a reasonably safe passageway for all invitees, including contract workers, and that it remained liable for the safety of business invitees, as the federal government owned, operated and maintained the site.
Defendants' Prior Dismissal Motion and the 2020 Order
On July 12, 2019, defendants moved for an order, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the original complaint. On July 26, 2019, plaintiffs opposed defendants' motion and cross-moved for an partial summary judgment on the issue of professional negligence
By the order dated April 17, 2020 (the 2020 Order), the court (Walker, J.) denied defendants' motion to dismiss the original complaint. The court held that while the United States, as sovereign, is immune from suit unless it consents to be sued, the Federal Tort Claims Act (FTCA) provides a limited waiver of the federal government's sovereign immunity. The court held that "plaintiffs may have had a viable negligence claim against the government if they show that an NPS or government employee [such as Theresa] was responsible for plaintiff's injuries". The court further held that while the project specifications and contracts may demonstrate that Nagan contractually assumed responsibility for work site operations and safety while construction was pending, "the government may still be liable". The court thus held that:
"[t]he allegations that Theresa, in the scope of her employment, directed plaintiff where he could and could not walk and that plaintiff fell in an area that Theresa represented was safe arguably state a negligence claim against her under the FCTA had they been asserted in the underlying action (28 USC 1346 [b]; Esgrance, supra; Jappa v PJR Const. Co., Inc., supra). Therefore, plaintiffs have met their burden of demonstrating that they could have prevailed on a personal injury claim against NPS but for defendants' negligence in suing the City, while permitting the statute of limitations for suing the government to lapse (see Grace, 24 N.Y.3d at 211; Rudolph, 8 N.Y.3d at 442; Davis, 88 N.Y.2d at1009-1010)" (id. at 10).
The court also denied plaintiffs' cross motion on the ground that they failed to prove that Postiglione sustained actual and ascertainable damages due to defendants' actions or inaction because (at that time) the underlying action had not yet been resolved, and plaintiffs could still recover damages from Nagan under the Labor Law.
Subsequently, on May 13, 2020, plaintiffs voluntarily discontinued the Underlying Personal Injury Action as against the City, and on October 20, 2020 plaintiffs voluntarily discontinued the Underlying Personal Injury Action as against Nagan.
On May 4, 2020, defendants appealed from the 2020 Order.
The Amended Complaint
On November 13, 2020, plaintiffs moved for leave to amend the original complaint. By a May 4, 2021 order, this court granted plaintiffs' motion to amend without opposition.
On May 5, 2021, plaintiffs filed their amended complaint (see NYSCE Doc No. 80). In addition to containing many of the same allegations as the original complaint, the amended complaint adds additional, detailed allegations expanding on the original claims. The amended complaint further identified "Theresa" as Theresa Cervera (Theresa) and reiterates the same allegations in the original complaint. The amended complaint also alleges that neither Theresa nor anyone else at NPS tested the concrete path or the underlying steel to determine whether it was safe to walk on.
The amended complaint further alleges that prior to Postiglione's accident, the federal government allowed Hangar B to fall into disrepair and that in October 2004, auditors employed by the Inspector General of the United States' Department of Interior (IG) noted Hangar B's dilapidated state. The state of disrepair of the hangers was allegedly recounted in a "Flash Report" issued by the IG in November 2004, which detailed public safety concerns at Floyd Bennett Field and recommended that the NPS' Director: (1) take immediate steps to prevent public access to all unsafe aircraft hangers at Floyd Bennett Field, and (2) inspect all facilities at Floyd Bennett Field to identify additional facilities that present a safety risk and take action to prevent access to such facilities. The amended complaint alleges that the NPS' Director failed to inspect the facilities or implement any of the IG's recommendations in the Flash Report.
The amended complaint also alleges that, prior to Postiglione's accident, parts of Hangar B were further damaged by Hurricane Sandy and NPS contracted with an architect/consultant and an engineer (the design professionals) to prepare architectural plans for Hangar B and to consult about its restoration. further alleges that the design professionals hired by the federal government inadequately prepared specifications and plans for Hanger B and alleges that the design professionals' plans "specifically proscribed the performance of 'interior work' on the second floor east lean to, where Mr. Postiglione was injured when an interior concrete path collapsed." Additionally, the amended complaint alleges that the contract drawings furnished to Nagan specifically indicated that "no interior work" was to be formed on the second floor east lean to.
The amended complaint alleges that the location where Postiglione fell was not a subject of Postiglione's window replacement contract and was not within the scope of that contract because Nagan's plans of the area designated that no interior work was to be performed on the second floor of the east lean to.
On or about June 15, 2021, plaintiffs moved, in the Appellate Division, Second Department, to dismiss defendants' appeal from the 2020 Order on the ground that the amended complaint rendered defendants' appeal moot, and defendants opposed the motion. Defendants' appeal and plaintiffs' dismissal motion are presently sub judice.
Defendants' Instant Dismissal Motion
In support of their dismissal motion, defendants submit an "affidavit" from Weir, which is not notarized, in which Weir asserts that he caused the complaint in the underlying action to be filed on plaintiffs' behalf and "I did not sue the Federal Government, the National Park Service its architect and/or consultant and/or engineer and/or National Park Service employee Theresa Cervera on behalf of Plaintiffs because there was no valid claim against any of them." The remainder of Weir's unsworn affidavit addresses Postiglione's insurance policy renewal, which is irrelevant to the sufficiency of the allegations in the amended complaint.
In addition, defendants submit Postiglione's deposition testimony in the underlying action, portions of the contract between NPS and Nagan, the letter awarding Global the windows subcontract, portions of the Repair Plans and the second-floor site plan, documents produced during discovery, and a memorandum of law.
Defendants argue that plaintiffs voluntarily discontinued the underlying action against Nagan, the only defendant against whom they may have been able to recover. Defendants assert that plaintiffs' inability to recover from Nagan was caused by Postiglione's insurance fraud. Postiglione admitted at his deposition in the underlying action that he submitted false insurance documents to Nagan, including an insurance certificate without a valid policy number, in derogation of the Global subcontract. Defendants argue that Postiglione was the proximate cause of his own injuries, since he never would have been allowed inside Hangar B at the site had he not committed insurance fraud. Had Postiglione actually obtained insurance, defendants argue, Nagan's insurance carrier would not have denied Nagan.
Defendants also reiterate the same argument made in support of their prior motion to dismiss the original complaint, to wit: sovereign immunity. Defendants argue that Nagan is not an employee of the federal government and claim that, under the repair contract, Nagan, not NPS, had sole responsibility to protect the site and its occupants during construction. Defendants also contend that plaintiffs would not have prevailed in the underlying action had they sued NPS, any of the design professionals or Theresa because the federal government is a sovereign entity and did not waive its immunity.
Defendants further contend that the amended complaint fails to state a cause of action for legal malpractice based on any potential claims against the design professionals. Defendants argue that the repair contract limits the design professionals' responsibilities.
Finally, defendants request that the court stay discovery pending a decision on their appeal from the 2020 Order, but do not submit any argument in support of this request.
Plaintiffs' Opposition
Plaintiffs, in opposition, submit an affidavit from Postiglione, who asserts that defendants' second dismissal motion is "frivolous" because the amended complaint merely expands the claims in the original motion to dismiss which was denied by Judge Walker. Postiglione attests that "[p]rior to my fall, I had been directed by Theresa Cervara - A National Parks Service employee - to walk on the path that was created between rooms on the second floor of Hanger B" and "[b]ecause of what Theresa told me, I presumed the concrete path was safe[, ]" which was not the case. Postiglione's insurance issues do not bear on the issue of whether defendants are liable for legal malpractice by incorrectly suing the City.
Plaintiffs also submit a copy of the 2004 Flash Report, a site survey, the second-floor site plan and text messages and emails between James Postiglione and defendants. Postiglione notes in his affidavit that the second-floor site plan states "East Lean-To Interior No Work" which "confirms my recollection that I fell in an area that was not part of Nagan['s] Construction project, and that no work was being performed in that area."
Plaintiffs also submit a memorandum of law arguing Judge that Judge Walker's prior decision is the law of the case.
Plaintiffs argue that the documents submitted by defendants do not warrant dismissal because they do not refute that the federal government was in control of the location where Postiglione fell when the pathway collapsed, the allegation that Theresa directed Postiglione to walk in an unsafe area or the allegation that NPS failed to maintain the pathway. Plaintiffs contend that defendants' documentary evidence demonstrates that the federal government continued to occupy and control the site and control its safety.
Plaintiffs contend that the amended complaint also alleges that the government would have been liable for negligence under the FTCA as a result of the 2004 Flash Report, which was accessible to defendants had they searched for it. Plaintiffs argue that the Superintendent of the NPS, a federal employee, was allegedly aware of the dangers which he failed to remedy and would have been liable under the FTCA.
Defendants' Reply
Defendants, in reply, submit a memorandum of law contending that application of the law of the case doctrine is discretionary, and that the issue of whether the amended complaint states a viable claim for legal malpractice has not yet been decided. Defendants also contend that CPLR 3211 does not limit a party's right to file a motion to dismiss the amended complaint merely because a motion to dismiss a prior complaint has already been adjudicated.
Discussion
In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must "accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Kolchins v Evolution Mkts., Inc., 31 N.Y.3d 100, 105-106 [2018] quoting Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; see also Strujan v Kaufman & Kahn, LLP, 168 A.D.3d 1114, 1115 [2d Dept 2019]; Gorbatov v Tsirelman, 155 A.D.3d 836, 837 [2d Dept 2017]). A court may consider affidavits submitted by plaintiff to remedy any defects in the complaint, but not for the purpose of determining whether there is evidentiary support for the pleading (see Leon, 84 N.Y.2d at 88; Sokol v Leader, 74 A.D.3d 1180, 1181 [2d Dept 2010]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one" (Sokol, 74 A.D.3d at 1181-1182). Allegations consisting of bare legal conclusions must not be considered (see Connaught on v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-142 [2017]). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Gorbatov, 155 A.D.3d at 837, quoting Shaya B. Pacific, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, [2d Dept 2006]).
"The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" (Erickson v Cross Ready Mix, Inc., 98 A.D.3d 717, 717 [2d Dept 2012]; Martin v City of Cohoes, 37 N.Y.2d 162, 165 [1975]). "The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision" and "to the same questions presented in the same case" (Erickson, 98 A.D.3d at 717; Baldasano v Bank of N.Y., 199 A.D.2d 184, 185 [2d Dept 1993]; see also U.S. Bank National Association v Moss, 186 A.D.3d 1753, 1753 [2d Dept 2020]; State v Winkle, 179 A.D.3d 1121, 1126 [2d Dept 2020]).
Here, defendants' motion to dismiss the amended complaint is denied based on the law of the case because the amended complaint contains the same allegations as the original complaint, which was previously upheld by the court's 2020 Order. Accordingly, the law of the case doctrine precludes dismissal of the legal malpractice cause of action asserted in the amended complaint based on defendants' alleged failure to sue the federal government prior to the expiration of the statute of limitations in the Underlying Personal Injury Action because the very same cause of action in the original complaint was previously upheld by the court.
Defendant's motion to dismiss pursuant to CPLR 3211 (a) (1) is also denied, as the documentary evidence submitted only relates to the contractual relationship between the government and Nagan and does utterly refute plaintiffs' factual allegations concerning Theresa (see Karpovich v City of New York, 152 A.D.3d 996, 998 [2d Dept 2018]).
In addition, the amended complaint includes additional allegations regarding the federal government's potential liability under the FTCA in the Underlying Personal Injury Action based on the Flash Report, in which the IG noted that the aircraft hangers were not secured, were in disrepair and posed a safety risk to the public and directed the NPS Director to remedy the defect. If plaintiffs can prove that the NPS Director, a federal employee, failed to remedy the defects, and that this failure was the proximate cause of Postiglione's injuries, then defendants may be liable for legal malpractice. If a federal employee was aware of a dangerous condition and failed to remedy it, such failure to remedy or warn is not a decision "of the nature and quality that Congress intended to shield from tort liability" (United States v S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 [1984]).
The amended complaint also alleges that defendants committed malpractice by failing to sue the federal government's design professionals who allegedly: (1) created plans that did not require work to be done in phases for the protection of workers; (2) failed to identify safety hazards; and (3) failed to require the replacement of deteriorated flooring or tests of the concrete to determine whether pathways were usable. These allegations state a cognizable cause of action because design professionals may be subject to tort liability for their failure to exercise reasonable care, irrespective of their contractual duties (see Sommer v Federal Signal Corp., 79 N.Y.2d 540, 551 [1991]). New York recognizes the tort of malpractice by an architect, assuming such a claim can be proven with expert testimony (530 E. 89 Corp. v Unger, 43 N.Y.2d 776, 777 [1977]; Michael v He Gin Lee Architect Planner, PLLC, 153 A.D.3d 704 [2d Dept 2017]).
Finally, the court finds no basis to stay discovery in this action pending the resolution of defendants' appeal. The court has considered the parties' remaining arguments and finds them to be without merit. Accordingly, it is
ORDERED that defendants' motion (mot. seq. four) is denied in its entirety.
This constitutes the decision and order of the court.