Opinion
INDEX NO. 155658/2019
07-13-2020
RENEE SCHUSTER, Plaintiff, v. FAITH MILLER and MILLER ZEIDERMANN & WIEDERKEHR & SCHWARZ, LLP, Defendants.
NYSCEF DOC. NO. 53 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) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 43, 44, 45 were read on this motion to/for DISMISS.
In this legal malpractice action commenced by plaintiff Renee Schuster, defendants Faith Miller (Miller) and Miller Zeiderman & Wiederkehr LLP i/s/h/a Miller, Zeidermann & Wiederkehr & Schwarz, LLP, (collectively the Miller Firm) move, pursuant to CPLR §§ 3211 (a) (1), (a) (5), and (a) (7), to dismiss plaintiff's complaint against defendants; for sanctions against plaintiff and plaintiff's counsel for allegedly filing frivolous pleadings; and for such other relief which this Court deems just and proper. Plaintiff opposes the motion. After considering the contentions of the parties, and after reviewing the relevant statutes and case law, the motion is granted.
This Court notes that by order dated December 18, 2019, the Supreme Court, Westchester County (Giacomo, J.) consolidated an action entitled Law Office of Yonatan S. Levoritz, P.C. v Stephen Weingrad and Renee Schuster (Westchester County Index No.: 50780/2018) with the present action. Justice Giacomo ordered that the two actions were to be joined for discovery and trial, with separate verdicts, separate judgments, and separate costs, and that the venue of the action was to be transferred from Westchester County to New York County.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2016, the Miller firm commenced a matrimonial action on behalf of plaintiff entitled Renee Schuster v Austin Schuster in the Supreme Court, Westchester County (Index No. 56989/2016). A preliminary conference in the matrimonial action was held on June 17, 2016. The Miller Firm represented plaintiff in the underlying action for a total of about three months. On August 15, 2016, plaintiff executed a Consent to Change Attorney whereby the Law Office of Yonatan S. Levoritz, P.C. (the Levoritz Firm) was substituted in place of the Miller Firm. Defendants maintain that, after the Miller Firm was substituted as counsel, the matrimonial action continued for another year and a half until it was resolved in February 2018.
On October 27, 2016, approximately two months after plaintiff retained counsel to replace the Miller Firm, it filed an Order to Show Cause in the matrimonial action seeking court approval of its fees relating to its representation of plaintiff. In its application, the Miller Firm requested that the court in the matrimonial action vacate a prior stay of the fee award and direct payment to the Miller Firm in the amount of $50,000. Plaintiff submitted an affidavit in support of the fee application wherein she authorized, consented to, and requested that an award of $50,000 of counsel fees be paid directly to the Miller Firm. She also represented that she owed the Miller Firm approximately $84,440.04 in legal fees and disbursements. On December 22, 2016, the Supreme Court, Westchester County (Grossman, J.) approved the Miller Firm's fee application and awarded the Miller Firm $50,000 in counsel fees.
On July 29, 2019, plaintiff commenced the captioned action against defendants as a result of their work in the matrimonial action. Doc. 5. Plaintiff's alleged seven causes of action, including legal malpractice. As a first cause of action, plaintiff alleged that Miller advised her that she was withdrawing as counsel and recommended that the Levoritz Firm take over. Plaintiff subsequently retained the Levoritz Firm for her representation. On October 20, 2016, the parties were to attend a conference and motion argument before Justice Grossman. However, plaintiff alleges that the Levoritz Firm resigned without notice. Plaintiff alleges that she would not have consented to the withdrawal of Miller if she was advised that discovery was ongoing and would not be extended by the court.
Plaintiff further alleged that, during the Miller Firm's departure, she learned that Miller had a conversation with Mitch Lieberman, counsel for her ex-husband in the matrimonial action, who opined that it was unethical for Miller to participate in the action since she had a relative working at the Supreme Court, Westchester County. Plaintiff maintains that she was never informed by the Miller Firm that the court might disqualify it.
As her second cause of action, plaintiff alleged that Miller filed a motion to collect fees from a cash bond that was made by plaintiff's ex-husband and deposited with the court. She maintained that Justice Grossman could have awarded $60,000 in fees, the amount deposited in the bond by her ex-husband, but only awarded $50,000 to the Miller Firm. Plaintiff alleged that no attempt was made to collect the remaining fees and that the $10,000 balance from the posted bond was returned to ex-her husband. Plaintiff requested a return of the retainer fee and the fees paid by her ex-husband's spouse.
As a third cause of action, plaintiff alleged that defendants were negligent because their withdrawal as the attorney of record resulted in a diminished settlement amount. She claimed that defendants' request for $50,000, instead of asking for the entire fee claimed, ignored her financial needs. Plaintiff requested an in-camera review of the confidential transcripts of the matrimonial proceedings before Justice Grossman on October 20, 2016 and December 21, 2016, or in the alternative, permission to file the transcripts under seal.
As a fourth cause of action, plaintiff alleged that defendants' abandonment of her case resulted in delay, loss, and preclusion of discovery which would have disclosed additional cash assets valued in excess of $900,000.
As a fifth cause of action, plaintiff alleged that defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to disclose a relationship to a judge in the courthouse, failing to direct her ex-husband to pay fees to cover the billing and anticipated billing, and causing plaintiff to sustain actual and ascertainable damages. Plaintiff alleged that the referral of the case to the Levoritz Firm resulted in her being the subject of two subsequent lawsuits brought against her by that firm.
As a sixth cause of action, plaintiff alleged that defendants proximately caused the unsatisfactory results in the matrimonial action, which would not have occurred but for their legal malpractice.
As a seventh cause of action, plaintiff alleged a lack of good faith and fair dealing, breach of contract, and a violation of New York Judiciary Law § 487.
PARTIES' CONTENTIONS
AND LEGAL CONCLUSIONS
Defendants move, pursuant to CPLR 3211 (a) (1), (a) (5) and (a) (7), to dismiss plaintiff's complaint. Those sections provide as follows:
"(a) Motion to Dismiss Cause of Action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
1. a defense is founded upon documentary evidence; or
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5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or
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7. the pleading fails to state a cause of action . . . ."
When reviewing a CPLR 3211 (a) (1) motion to dismiss, the 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 NY3d 100, 105-106 (2018) (internal quotation marks and citation omitted).
CPLR 3211 (a) (5) provides for the dismissal of a claim based on collateral estoppel. Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . whether or not the tribunals or causes of action are the same." Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 (1999), quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 (1984); see also People v Evans, 94 NY2d 499, 502 (2000).
"In assessing a motion under CPLR 3211 (a) (7), ... the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v Martinez, 84 NY2d 83, 88, (1994) (citations and internal quotation marks omitted).
In her complaint, plaintiff attempts to assert claims based on a theory of legal malpractice. "An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages." Brooks v Lewin, 21 AD3d 731, 734 (1st Dept 2005). To recover damages, "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." Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007) (internal quotation marks and citation omitted). "An attorney's 'selection of one among several reasonable courses of action does not constitute malpractice.'" Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 (1st Dept 2011) quoting Rosner v Paley, 65 NY2d 736, 738 (1985).
"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, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007). "[C]onclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim." Freeman v Brecher, 155 AD3d 453, 453 (1st Dept 2017).
Plaintiff alleges that the Miller Firm was negligent by failing to obtain the full $60,000 in legal fees which was posted in a bond by her ex-husband during the course of the matrimonial action. Plaintiff claims that, although the Miller Firm obtained $50,000, it made no effort to collect the remaining $10,000.
In support of their motion to dismiss, defendants contend that, on or about October 27, 2016, two months after the Miller Firm was substituted out of the case and ceased to represent plaintiff, it submitted an Order to Show Cause for court approval of its fees relating to its representation of plaintiff in the matrimonial underlying action. Defendants argue that, in that application, the Miller Firm requested that the court vacate a prior stay of the fee award and direct payment to them in the amount of $50,000.
Defendants maintain that, in November of 2016, plaintiff submitted an affidavit in support of the fee application wherein she authorized, consented to, and requested that an award of $50,000 of counsel fees be paid directly to the Miller Firm. Plaintiff stated:
"3. I acknowledge that as of today's date, I owe MZWS [the Miller Firm] approximately $84,440.04 in legal fees and disbursements.Doc. 29.
4. I hereby join in the request of MZWS to vacate the bond and authorize, consent and request that the counsel fee award of $50,000 under the Amended Decision and Order dated September 14, 2016 be ordered to be paid directly to MZWS."
Defendants contend that, on December 22, 2016, Justice Grossman approved the Miller Firm's fee application and awarded the Miller Firm $50,000 in counsel fees despite opposition to the same by plaintiff's ex-spouse.
Here, plaintiff supported and consented to the Miller Firm's fee application of $50,000 by submitting an affidavit. At the time plaintiff signed the affidavit, the Miller Firm no longer represented her as counsel. Plaintiff was aware that the total amount of legal fees which she owed to the Miller Firm was $84,440.04. Since the Miller Firm no longer represented plaintiff at the time the counsel fees application was made, and because plaintiff consented to the amount of counsel fees, that branch of plaintiff's complaint seeking the return of all of the fees she paid to the Miller Firm is without merit.
Despite plaintiff's claim that the Miller Firm abandoned its obligation to provide her with legal representation, she alleged in her complaint that she retained the Levoritz Firm as incoming counsel following her representation by the Miller Firm. A preliminary conference was conducted on June 17, 2016 and the Miller firm was substituted less than two months later, on August 15, 2016, at which time plaintiff consented to the change of attorney in a signed document.
Although plaintiff is critical of the legal services provided by the Levoritz Firm, she failed to allege that Miller Firm did not exercise reasonable skill during the three months it served as her attorney. Instead, plaintiff focuses on how the Levoritz Firm failed to appear at a conference and a motion hearing. However, any issues plaintiff had with her representation by the Levoritz Firm are irrelevant herein. Therefore, plaintiff's allegation that the Miller Firm abandoned her representation is also without merit.
Plaintiff alleged that the Miller Firm did not advise her about discovery obligations before she consented to the withdrawal of counsel, and that she was caused to settle for a lesser amount because the Miller Firm failed to discover assets worth over $900,000 which, she claimed, her ex-husband had hidden from her. Although the Miller Firm represented plaintiff for two months after the preliminary conference, defendants stress that the case proceeded for an additional 18 months following the said conference, with plaintiff being represented by two additional law firms, one of which was the Levoritz Firm, before the conclusion of the matrimonial action in February 2018. Therefore, if discovery remained outstanding, or if the alleged assets existed, successor counsel to the Miller Firm had sufficient time to uncover such information. See Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652, 652 (1st Dept 2011) (holding "[t]he motion court properly determined that plaintiff failed to state a cause of action for legal malpractice. The documentary evidence established that plaintiff's successor counsel had sufficient time and opportunity to adequately protect plaintiff's rights."); Pellegrino v File, 291 AD2d 60, 64 (1st Dept 2002) ("conclusory damages or injuries predicated on speculation cannot suffice for a malpractice claim") (citations omitted).
Plaintiff also alleged in her complaint that Miller had a relative working in the courthouse where the underlying action was pending, thereby invoking 22 NYCRR 100.6 (B) (3), which provides as follows:
"(B) Part-time judge. A part-time judge:
(3) shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law ... ."
The Miller Firm contends that the complaint is devoid of any reference to any specific relative of Miller or of any allegation regarding the relationship of Miller to that individual. Defendants maintain that Miller's husband is the Hon. Alan D. Scheinkman, who was the presiding Administrative Judge of the Ninth Judicial District, and that this relationship did not preclude the Miller Firm from appearing in any court in Supreme Court, Westchester County. Defendants contend that the Miller Firm did not breach any duty to disclose a conflict of interest arising from a relationship to a judge in the courthouse since there was no such conflict.
Plaintiff fails to demonstrate that the relationship between the Miller Firm and any judge was the proximate cause of any of the damages she seeks, or that anyone from the Miller Firm was a part-time judge in Westchester County. Additionally, although plaintiff alleges a violation of the Code of Professional Responsibility, there is no private right of action against an attorney or law firm arising from such a violation. See Kantor v Bernstein, 225 AD2d 500, 501 (1st Dept 1996).
Defendants also contend that plaintiff's cause of action alleging a breach of contract and a violation of New York Judiciary Law § 487 must be dismissed. Judiciary Law §487 provides that:
"[a]n attorney or counselor who:
(1) is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
(2) Willfully delays his client's suit with a view to his own gain; or, willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."
In order to sustain a cause of action for a violation of Judiciary Law § 487, the pleading must allege specific facts demonstrating the attorney's delay for his own gain and may not merely allege bare legal conclusions. See Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 (1st Dept 2015) (holding "[r]elief under a cause of action based upon Judiciary Law § 487 is not lightly given and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys that caused damages" [internal quotation marks and citation omitted]); Mars v Grant, 36 AD3d 561, 561-562 (1st Dept 2007) (holding plaintiff "failed to support his pleading of a cause of action under Judiciary Law § 487 with allegations that adverse court rulings in the matrimonial action were based on acts of deceit by defendant attorneys").
Plaintiff fails to articulate how the Miller Firm caused any type of delay or created intentional deception, what the delay was, or how it caused plaintiff any damage. Therefore, the allegation of a violation of New York Judiciary Law § 487 must be dismissed.
In her seventh cause of action, plaintiff claims a breach of contract. The requisite elements of a breach of contract claim are existence of a contract, plaintiff's performance pursuant to the contract, defendant's breach of the contract, and damages resulting from that breach. Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 (1st Dept 2010). However, a breach of contract claim premised on an attorney's failure to exercise due care or to abide by general professional standards is redundant of a malpractice claim. See Xiong Ping Tang v Marks, 133 AD3d 455, 456 (1st Dept 2015) (holding "[p]laintiffs' cause of action for breach of contract was properly dismissed as duplicative of the legal malpractice claim, since it arose out of the same set of facts as the alleged legal malpractice and did not involve distinct, additional damages"). Here, plaintiff's cause of action sounding in breach of contract is predicated on the same purported conduct by the Miller Firm as the malpractice claims. Therefore, the breach of contract claim is duplicative and must be dismissed.
Finally, while defendants request sanctions and argue that the complaint was frivolous pursuant to 22 NYCRR 130- 1.1 (a), this Court declines to order any sanctions.
In conclusion, since plaintiff fails to set forth a cause of action for legal malpractice and fails to demonstrate that defendants were negligent; that such negligence was a proximate cause of plaintiff's losses; and that she suffered actual damages, plaintiff's complaint must be dismissed.
Therefore, in light of the foregoing, it is hereby:
ORDERED that the motion of defendants Faith Miller (Miller) and Miller Zeiderman & Wiederkehr LLP i/s/h/a Miller, Zeidermann & Wiederkehr & Schwarz, LLP to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order, with notice of entry, upon plaintiff, as well as on the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the dismissal; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office 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.gov/supctmanh)]; and it is further
ORDERED that this constitutes the decision and order of the court. 7/13/2020
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.