Opinion
No. 18527/07.
2010-09-14
Eric REISNER, Plaintiff, v. LITMAN & LITMAN, P.C., Jeffrey E. Litman, Kenneth S. Litman, Eugene Litman, Defendant.
Joseph Edward Brady, P.C., Howard Beach, Attorney for Plaintiff. Furman Kornfeld & Brennan, LLP, New York City, Attorney for Defendants.
Joseph Edward Brady, P.C., Howard Beach, Attorney for Plaintiff. Furman Kornfeld & Brennan, LLP, New York City, Attorney for Defendants.
DANIEL R. PALMIERI, J.
This motion by the defendants Litman & Litman, P.C., Jeffrey E. Litman, Kenneth S. Litman and Eugene Litman for summary judgment pursuant to CPLR 3212 is determined as provided in this order.
This cross-motion by the plaintiff pursuant to CPLR 3212 striking the defendants' affirmative defenses and granting them summary judgment or partial summary judgment on their fourth cause of action is determined as provided in this order.
The plaintiff in this action seeks to recover of the defendants for legal malpractice. The defendant attorneys seek summary judgment dismissing the complaint. The plaintiff seeks summary judgment in his favor or, in the alternative, partial summary judgment, on its fourth cause of action. This claim is for a refund of the fees and expenses he paid the defendant attorneys. He also seeks an order striking the defendants' affirmative defenses and precluding them from submitting evidence at trial based upon their failure to serve and file a Verified Bill of Particulars.
The pertinent facts are as follows:
The plaintiff was involved in a motor vehicle accident on July 18, 2004. He and a passenger, Lisa Fazio, were traveling north on his motorcycle on South Oyster Bay Road when a car being driven by Luis E. Diaz and owned by Margaret Lozada, traveling south on South Oyster Bay Road, turned left on to Stewart Avenue and struck the plaintiff on his motorcycle, essentially broadsiding the plaintiff on his left side. The plaintiff retained the defendants on July 27, 2004 at the hospital to represent him with respect to that accident. In November, 2004, the plaintiff's mother contacted the defendants and asked them to bring suit against the County based on its negligent maintenance of the road based upon an article she read in Newsday regarding the “deadly stretch” of road in the vicinity of the plaintiff's accident. Although the 90 day time limit for filing a Notice fo Claim against the County had expired, the defendant Jeffrey E. Litman undertook an investigation in conjunction with his brother Robert Litman, Esq., who represented Ms. Fazio with respect to the accident.
The investigation revealed that the County had contracted with Welsbach Electric Corp. to replace the traffic light at the intersection to address safety concerns, in particular, regarding people who were traveling southbound on South Oyster Bay Road turning left on to Stewart Avenue. That project was in fact in process at the time of the plaintiff's accident. Defendants served a Notice of Claim on the County on April 10, 2005.
A motion to leave to serve a late Notice of Claim was denied by order of the Supreme Court, Nassau County dated October 4, 2005 (Dunne, J.) and that order was affirmed by the Appellate Division, Second Department on January 23, 2007. Reisner v. County of Nassau, 36 AD3d 822 (2nd Dept.2007). The Appellate Division held that “the petitioner failed to establish that he had a reasonable excuse for much of his almost nine-month delay in serving the notice of claim.” Reisner v. County of Nassau, supra, at p. 823, citing Matter of Finneran v. City of New York, 228 A.D.2d 596, 597 (2nd Dept.1996). It also found that “the record [did] not support the petitioner's contention that the County of Nassau had actual knowledge of the essential facts underlying his claim within 90 days of the accident and therefore would not be substantially prejudiced in preparing a defense if the application were granted.” Reisner v. County of Nassau, supra, at p. 823, citing Matter of Cattel v.. Town of Brookhaven, 21 AD3d 896 (2nd Dept.2005); Matter of Gillum v. County of Nassau, 284 A.D.2d 533 (2nd Dept.2001).
In this present action plaintiff seeks to recover for legal malpractice, fraudulent misrepresentation, breach of fiduciary duty, and disgorgement of attorneys' fees and expenses paid. The defendant attorneys successfully represented him in his personal injury action against the owner of the offending vehicle, as well as its driver. However, plaintiff contends that the defendants committed legal malpractice by failing to timely pursue a claim against the County of Nassau, which was responsible for the intersection where the accident occurred, and its contractor, Welsbach Electric Corporation, which performed certain improvement work in that intersection. He also contends that a suit against the owners and drivers of other vehicles present at the time of the accident should have been pursued as well.
Initially, the Court addresses the plaintiff's failure to disclose his expert until the making of this motion. When the Note of Issue was filed, discovery was clearly continuing; even the Note of Issue so provides. Accordingly, there is no evidence that the plaintiff's failure to disclose sooner was intentional or willful nor has there been any prejudice to the defendants. See, Browne v.. Smith, 65 AD3d 996 (2nd Dept.2009), citing Hernandez–Vega v. Zwanger Pesiri Radiology Group, 39 AD3d 710, 170–711 (2nd Dept.2007); Aversa v. Taubes, 194 A.D.2d 580, 582 (2nd Dept.1993). Hence, the expert may testify.
Furthermore, this Court will not reject Jeffrey Litman's affidavit pursuant to CPLR 4517 as inconsistent with positions he advocated in support of his application to file a late Notice of Claim in the plaintiff's initial attempt to pursue the County. Those affirmations did not constitute testimony under CPLR 4517. See Friedman v. Sills, 112 A.D.2d 343 (2nd Dept.1985). Litman was not a “witness” in the plaintiff's action against the County, but was the plaintiff's advocate. Needless to say, an attorney's position in his client's underlying case is going to be diametrically opposed to the position he advances in his defense in a legal malpractice action.
The plaintiff served a Demand for a Verified Bill of Particulars on or about September 3, 2009. Defendants have only now supplied a response, during the course of the current motion practice. Nevertheless, in view of the absence of a sufficient affirmation of good faith this branch of the cross motion is denied. 22 NYCRR § 202.7(a); Natoli v. Milazzo, 65 AD3d 1309 (2nd Dept.2009). Moreover, such a bill of particulars has now been provided, rendering this branch of the cross motion moot. The Court also notes the continuing discovery, concerning which the plaintiff himself relies in justifying his delay in disclosing his expert.
The Court now turns to the substantive issues raised by these applications.
“On a motion for summary judgment pursuant to CPLR 3212, the proponent 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.” Sheppard–Mobley v. King, 10 AD3d 70, 74 (2d Dept.2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Sheppard–Mobley v. King, supra, at p. 74; Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v. Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v. Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept.2006), citing Secof v. Greens Condominium, 158 A.D.2d 591 (2d Dept.1990).
“In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.' “ Leder v. Spiegel, 9 NY3d 836, 837 (2007, cert. den., 128 S.Ct. 1696 (2008); quoting AmBase Corp. v. Davis Polk & Wardwell, 8 NY3d 428, 434 (2007); Dupree v. Voorhees, 68 AD3d 810 (2nd Dept.2009); see also Leone v. Silver & Silver, LLP, 62 AD3d 962 (2nd Dept.2009). “An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action or for failure to conduct adequate legal research. Conklin v. Owen, 72 AD3d 1006, 1007 (2nd Dept.2010), citing McCoy v. Tepper, 261 A.D.2d 592 (2nd Dept.1999); Gardner v. Jacon, 148 A.D.2d 794, 496 (3rd Dept.1989); Grago v. Robertson, 49 A.D.2d 645, 646 (3rd Dept.1975). “To establish causation, at plaintiff must show that he or she would have prevailed in the underlying action but for the lawyer's negligence.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007).
“To succeed on their motion for summary judgment, the defendants [are] required to establish, through the submission of evidentiary proof in admissible form, that the plaintiff is unable to prove at least one of the essential elements of the cause of action.” Leone v. Silver & Silver, LLP, supra, citing Suydam v. O'Neill, 276 A.D.2d 549 (2nd Dept.2000); Ostriker v. Taylor, Atkins & Ostrow, 258Ad2d 572 (2nd Dept.1999), lv den.,93 N.Y.2d 809 (1999). To defeat an attorney's application for summary judgment dismissing a claim sounding in legal malpractice, a plaintiff need only establish the existence of a material issue of fact as to whether he or she would have prevailed in the underlying action absent the defendant attorney's negligence. Siciliano v. Forchelli & Forchelli, 17 AD3d 343, 345 (2nd Dept.2005), citing Shopsin v. Siben & Siben, 268 A.D.2d 578 (2nd Dept.2000); Budget Installment Corp., v. Levy, Ehrlich & Kronenberg, 259 A.D.2d 649 (2nd Dept.1999). However, “[t]he failure to demonstrate proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent.” Kluczka v. Lecci, 63 AD3d 796 (2nd Dept.2009), citing Leder v. Spiegel, supra. If such showings are made by the attorney defendant, the plaintiff, in effect, needs to establish in response that issues of fact exist as to the viability of the underlying case, and that what has become known as “a trial within a trial” is warranted.
The Plaintiff's Underlying Claim v. Welsbach Electric Corp.
Standing alone, a contractual obligation will not give rise to tort liability to a third party. Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002). Tort liability by a contractor to a third party may exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm'; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.” Espinal v. Melville Snow Contractors, Inc, supra, at p. 140, quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160 (1928) and citing Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226–227 (1990); Palka v. Service Master Management Services Corp., 83 N.Y.2d 579, 585–586 (1994). “A defendant who undertakes to render a service and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury' “ Schwint v. Bank Street Commons, LLC, 74 AD3d 1312 (2nd Dept.2010) quoting Espinal v. Melville Snow Contractors, Inc., supra at p. 141–142.
Both the plaintiff and the defendant attorneys have completely failed to address Welsbach Electric Corp.'s potential liability to the plaintiff under Espinal v. Melville Snow Contrs., supra. Thus, whether the defendant attorneys committed legal malpractice in failing to sue Welsbach Electric Corp. cannot be determined. For that reason alone, the defendant attorneys' motion for summary judgment dismissing the complaint in its entirety must be denied.
The Plaintiff's Underlying Claim v. The County
Municipalities have a nondelegable duty to adequately design, construct and maintain their roadways in a reasonably safe condition for the traveling public. Friedman v. State, 67 N.Y.2d 271, 283 (1986). “This includes the duty to design, install, operate and maintain traffic control devices to regulate, warn and guide vehicular traffic at intersections under (its) ownership and control .” Daub v. State, 17 Misc.3d 1121(A) (Court of Claims 2007), citing Vehicle Traffic Law § 1681; Wood v. State of New York, 112 A.D.2d 612 (3rd Dept.1985). However, municipalities are afforded a qualified immunity from liability for negligence arising out of their discretionary decisions and road construction. Weiss v. Fote, 7 N.Y.2d 579 (1960), rearg den., 8 N.Y.2d 934 (1960); Friedman v. State, supra, at p. 271, 283–284; Alexandra v. Eldred, 63 N.Y.2d 460, 465–466 (1981).
Nevertheless, municipalities have a duty to review highway and road plans, and, if made aware of dangerous traffic conditions, to undertake necessary action to correct it. Weiss v. Fote, supra at p. 579, 587; Friedman v. State, supra, at p. 284. In addition, once made aware of a dangerous condition which warrants action, municipalities have an obligation to implement their remedial plan within a reasonable time. Weiss v. Fote, supra; Friedman v. State, supra. Where an “analysis of a hazardous condition by the municipality results in the formulation of a remedial plan, an unjustifiable delay in implementing the plan constitutes a breach of the municipality's duty to the public just as surely as if it had totally failed to study the known condition in the first instance.” Friedman v. State of New York, supra, at p. 286; Pendergast v. Cosco, 4 AD3d 880, 881 (4th Dept.2004). However, delays which are “necessary in order to study and formulate a reasonable safety plan” or were “part of a considered plan of action taken on the advice of experts” or which “[stemmed] from a legitimate ordering of priorities with other projects based on the availability of funding” are not actionable. Friedman v. State of New York, supra, at p. 287 (citations omitted). In addition, a plaintiff must establish that a municipality's unjustifiable delay was a proximate cause of his injuries in order to recover of it on account of its delay in remedying a dangerous traffic condition. Friedman v. State of New York, supra, at p. 289.
The defendant attorneys did not undertake an investigation of the accident site until four months after the accident, when the plaintiff's mother alerted them to general safety concerns in the vicinity of the accident. The plaintiff has in fact established that from January 22, 1990 to July 18, 2004, there were 225 accidents at the intersection, 111 involved left turns, 56 of which were due to a failure to yield and 98 of which involved traffic signals.
Drivers Mark Brian and passenger Daniel Wicks both stated in their police statements that the light in the left turning lane was green. Another driver in the area Kevin Karmen stated that he saw a car turn left and just miss the motorcyclist before he saw Diaz hit him.
While FOIL requests were erroneously issued to the State of New York, which lacked jurisdiction over the site, and were not issued to the County of Nassau, the defendant attorneys ultimately learned that work was being done at the intersection at the time of the plaintiff's accident, that is, the traffic light configuration was being revamped in response to 2003 traffic surveys which had revealed safety concerns. Eschbacker Engineering Corp. submitted plans for redoing the traffic lights at the intersection on January 22, 2002.
More specifically, southbound South Oyster Bay Road at the intersection with Stewart Avenue was three lanes. The left lane was for left turns only; the center lane was for left turns and through traffic; and, the right lane was for through traffic only. The traffic lights on southbound South Oyster Bad Road was circular red, circular yellow, circular green and left yellow and green arrow in the left turn lane. The light in the permissive left turn lane and southbound lane was circular red, circular yellow and circular green. The light in the southbound only lane was circular red, circular yellow and circular green. These lights were being modified to add two separate left turn lights with protected red, yellow and green arrow left turn signals. The purpose of this modification was to remove the double permissive left turn movement from South Oyster Bay Road on to Stewart Avenue which crossed with the moving northbound traffic during the green interval.
A signed work order was originally issued to Welsbach Electric Corp. on September 23, 2003, and by letter dated October 27, 2003, the County advised it to begin work on a four phase controller and cabinet in the signal shop. While work was started on a cabinet in the signal shop on December 11, 2003, all of that work stopped until May 20, 2004 and was completed on June 22, 2004. As of September 23, 2003 however, work at the site itself had not begun, and by letter dated May 3, 2004, Joseph Pecora, a Nassau County Engineer, instructed Welsbach Electric that the project must be completed in eight weeks. The records reflect that work was begun on May 3, 2004 by Welsbach Electric Corp., was stopped on May 21, 2004 and did not resume until after the plaintiff's accident, on July 19, 2004.
As for the delay that took place in implementing the plan to address the left turn safety issue, Shelia M. Dukacz, the County's section head of the signal management section of the Nassau County Department of Public Works, testified at her examination-before-trial that: “[w]hen [the County] receives the work from [its] traffic engineering office, there is much prep work that [her] office has to do before [it] send[s] a job to the contractor including possibly ordering poles for the location, building control equipment which we do within [the] office, things like that.” She also testified that “[t]here are many steps that [she has] to take such as estimating how much [a] job is going to cost [and to] secure the poles and the signal equipment that are required for [any] particular job.”
She testified that she has “to coordinate [a job] with many other work orders that [she] received for various locations throughout the county that may come in before this job or at the same time as this job.” And, she has “to have control equipment built to perform the sequence of work that is listed in this particular job and ... to coordinate the work with our pavement markings operation as well as coordinate it with the various contractors and subcontractors who are performing this type of work for us.” Ms. Dukacz explained that “every job that [the County] receive[s] is different. [They] require different size poles, different signal head configurations and other equipment. So, those are the things that can take up the time from the time that [the County] receive[s] a work order to the time that it gets sent out to the contractor.” She further testified that “[the County] also [has] very limited work that occurs over the wintertime, so even if [it] send[s] something out to a contractor over the course of the winter months, the weather and the coldness usually prevent the type of work that we are trying to do which includes concrete and digging up ground that can't be frozen.”
As for the work itself, a contractor began work on April 30, 2004 and Welsbach began its work on May 5, 2004. However, Ms. Dukacz testified at her examination-before-trial that a field condition interrupted Welsbach Electric Corp.'s work and prevented it from finishing the project in eight weeks. More specifically, overhead wires impeded Welsbach Electric Corp. from putting up a pole where planned and the pole being used had to be changed. Therefore, the plan had to be sent back to engineering for modification. Ms. Dukacz testified that the revised plan was not “signed off” on until July 6, 2004 and that it then had to be sent to the print shop which takes approximately two weeks. Accordingly, it was her estimation that work could not resume until mid-July. Work in fact resumed on July 19, 2004, a day after the plaintiff's accident, and was completed on August 11, 2004. The Court finds that although the delay from June until August has been adequately explained as a matter of law, the delay from September to May, i.e., “winter,” has not.
In support of his motion, the plaintiff has submitted an affidavit by Robert Hintersteiner, a New York State licensed Professional Engineer. Having reviewed the history of the intersection of South Oyster Bay Road and Stewart Avenue, he explains that the traffic light modification was being done to reduce the number of accidents involving left turning vehicles and northbound traffic by eliminating dual permissive green lights. He opines that the County and its contractor Welsbach Electric Corp. could have had the work order completed within eight weeks of when the contract began i.e., during December 2003, and that had they done so, the accident would not have occurred. He specifically faults the County for not adequately supervising the project and following through on its work order.
Whether the County's delay in remedying the defective intersection was justifiable presents an issue of fact. Therefore, whether the defendant attorneys were negligent in not pursuing a claim against the County in a timely fashion presents an issue of fact. See Bresciani v. County of Dutchess, 62 AD3d 639 (2nd Dept.2009), citing Friedman v. State of New York, supra, at p. 284; Burgess v. Town of Hempstead, 161 A.D.2d 616, 617 (2nd Dept.1990); see also, Witkowski v. Escobar, 28 AD3d 543 (2nd Dept.2006); Purves v. County of Erie, 12 AD3d 112 (4th Dept.2004).
Plaintiff's Claim v. Other Drivers
As for drivers who were in the vicinity of the accident but were not directly involved in it, the plaintiff must establish that there is an issue of fact as to whether their action or inaction played a causative role in the accident. Kelly v. Rubin, 224 A.D.2d 262 (1st Dept.1996), citing Menekou v. Cream, 222 A.D.2d 418 (2nd Dept .1995); Rosado v. N.J. Cavagnaro & Sons Mach. Corp., 193 A.D.2d 476 (1st Dept.1993); see also Boglia v. Greenberg, 63 AD3d 973 (2nd Dept.2009).
The plaintiff's claim that the defendant attorneys committed legal malpractice by not suing other drivers who turned left from South Oyster Bay Road on to Stewart Avenue before Diaz attempted to do so, and who have represented that they saw the plaintiff heading south on South Oyster Bay Road before making their turns, fails. The plaintiff's contention that those drivers were negligent in failing to yield to him and that their negligence contributed to the accident is purely speculative and cannot form a basis for liability. Accordingly, so much of the amended complaint that asserts such a claim is dismissed.
The Plaintiff's Claim for Fraudulent Misrepresentation and Breach of Fiduciary Duty
To advance a claim sounding in fraud when legal malpractice is also alleged, the fraudulent conduct must be based on an allegation of “independent, intentionally tortious conduct” as well as “separate and distinct” damages. Sabo v. Alan B. Brill, P.C., 25 AD3d 420, 421 (1st Dept.2006); White of Lake George v. Bell, 251 A.D.2d 777, 778 (3rd Dept.1998), app dism., 92 N.Y.2d 748 (1998), quoting LaBrake v. Enzien, 167 A.D.2d 709, 711 (3rd Dept.1990), citing Weiss v. Manfredi, 83 N.Y.2d 974, 977 (1994); rearg den.,84 N.Y.2d 848 (1994); Simcuski v. Saeli, 44 N.Y.2d 442, 452 (1978); Owen v. Applebaum, 205 AD976, 978 (1994).Similarly, claims for negligent misrepresentation and breach of fiduciary duty must be dismissed as duplicative if they are based on the same facts or damages as a legal malpractice claim. Conklin v. Owen, supra; Mecca v. Shang, 258 A.D.2d 569, 570 (2nd Dept.1999)lv. dism., 95 N.Y.2d 791 (2000); White of Lake George v. Beil, supra; see also, Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 (1st Dept.2004); Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35 (1st Dept.1998). And, “the violation of a disciplinary rule does not, without more, generate a cause of action.” Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 199, citing Swift v. Ki Young Choe, 242 A.D.2d 188, 193 (1st Dept.1998).
The plaintiff's fraud claim is predicated on the defendant attorneys' e-mail to his mother on February 24, 2007 stating “the court denied the appeal upon the grounds that there was no evidence that the county had known about any traffic problem at the intersection in question.” This correspondence inaccurately characterized the Appellate Division's decision, in that it neglected to advise of the Appellate Court's reliance on the inexcusable tardiness of the Notice of Claim, as well as the County's lack of actual knowledge of the essential facts underlying the plaintiff's claim. The plaintiff's fraud claim is also predicated on the defendant attorneys' failure to provide an itemized closing statement and to file a retainer and closing statement with the Office of Court Administration.
However, the fraud and breach of fiduciary duty claims ultimately are duplicative of the plaintiff's legal malpractice and disgorgement claims and are dismissed.
Plaintiff's Claim for Disgorgement of Attorney's Fees
“An attorney may not recover fees for legal services performed in a negligent manner even where that negligence is not a proximate cause of the client's injury.” Kluczka v. Lecci, supra, citing Martin, Van de Wale, Guarino & Donahue v. Yohay, 149 A.D.2d 477, 480 (2nd Dept.1989), app dism., 74 N.Y.2d 745 (1989), app den., 79 N.Y.2d 753 (1992); Campagnola v. Mulholland, Minion & Roe, 148 A.D.2d 155, 158 (2nd Dept.1989), aff'd., 76 N.Y.2d 38 (1990).
In view of the Appellate Division's determination on the appeal from Justice Dunne's order, the plaintiff has established, prima facie, the professional negligence of the defendants in failing to serve and file a timely Notice of Claim, and the defendants have not demonstrated the existence of issues of fact in opposition thereto. Accordingly, the Court finds that the defendant attorneys were negligent in their representation of the plaintiff to that extent. Any fees paid with respect to the motion practice in the Supreme Court concerning the Notice of Claim, and the appeal, as well as any expenses advanced by the plaintiff with respect thereto, must therefore be disgorged. However, there is no prima facie showing that the handling of the case against the Diaz/Lozada parties was tainted by the negligence in the handling of the potential claim against the County and its contractor. Plaintiff therefore is not entitled to disgorgement of fees earned in that matter. The plaintiff therefore is granted partial summary judgment on his fourth cause of action to the extent indicated in this paragraph.
This shall constitute the Decision and Order of this Court.