Amid v. Del Col

2024 NY Slip Op 00178

Farah Amid, respondent, v. Robert Del Col, et al., appellants.

No. 2019-14017, Index No. 10357/15

Supreme Court of New York, Second Department

January 17, 2024

Robert Del Col, Bay Shore, NY, appellant pro se and for appellant Joseph Gulino.

Alexander Potruch, LLC, Garden City, NY, for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice and conversion, the defendants appeal from an order of the Supreme Court, Nassau County (Jack L. Libert, J.), dated September 23, 2019. The order denied the defendants' motion for summary judgment dismissing the second amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were for summary judgment dismissing the third through sixth causes of action in the second amended complaint, and substituting therefor a provision granting those branches of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements.

In September 2012, the plaintiff entered into a retainer agreement with the defendant Robert Del Col and his law firm to represent the plaintiff in a series of legal actions she had commenced, including a federal court case and two state court cases. At some point after the retainer agreement was executed, Del Col allegedly "promised" to represent the plaintiff in an action entitled Airmix Long Island Inc. v Amid. Thereafter, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice alleging that the defendants performed little or no work on her cases, withdrew several claims without her permission and failed to return any unearned portion of the retainer fee. The defendants moved for summary judgment dismissing the second amended complaint. In an order dated September 23, 2019, the Supreme Court denied the motion. The defendants appeal.

"To state a valid cause of action alleging legal malpractice, the plaintiff must plead sufficient facts to show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (York v Frank, 209 A.D.3d 804, 807 [internal quotation marks omitted]; see Singh v Pliskin, Rubano, Baum & Vitulli, 200 A.D.3d 927, 928-929). "To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney's negligence" (Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 968, 970; see Rabasco v Buckheith & Whelan, P.C., 206 A.D.3d 770, 771). "A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages" (Bakcheva v Law Offs. of Stein & Assoc., 169 A.D.3d 624, 625).

The Supreme Court properly denied that branch of the defendants' motion which was to dismiss the first cause of action, alleging legal malpractice. With respect to the state court cases, the defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldamn & Spitzer, P.A., 197 A.D.3d 544, 545; Fricano v Law Offs. of Tisha Adams, 194 A.D.3d 1016, 1018).

With respect to the federal court case, the defendants established, prima facie, that the plaintiff would not have prevailed on her 42 USC § 1983 claim regardless of whether the defendants consented to the discontinuance of that claim. However, in opposition, the plaintiff raised a triable issue of fact (see Hall v Schrader, Israely DeLuca & Waters, LLP, 147 A.D.3d 1421, 1422). And, with...