McGlynn v. Burns & Harris

203 N.Y.S.3d 369

William MCGLYNN, appellant,

v.BURNS & HARRIS, Esq., et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 3, 2023

January 17, 2024

Richard H. Coleman & Associates, P.C., Massapequa Park, NY, for appellant.

Dorf & Nelson LLP, Rye, NY (James F. Creighton of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered July 2, 2021. The order granted the motion of the defendants Burns & Harris, Esq., and Allison R. Keenan for summary judgment dismissing the complaint insofar as asserted against them and denied the plaintiff’s cross-motion pursuant to CPLR 8126 to strike those defendants’ answer for spoliation of evidence.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Burns & Harris, Esq., and Allison R. Keenan for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.

In 2007, the plaintiff retained the defendant Burns & Harris, Esq. (hereinafter the B & H law firm), to represent him in the prosecution of an action to recover damages for personal injuries he allegedly sustained in March 2005 while working for United Parcel Service due to an allegedly defective condition on a loading dock in Brooklyn. The defendant Alison R. Keenan was the attorney assigned to handle the plaintiff’s case. The B & H law firm commenced two separate actions on the plaintiff’s behalf against alleged owners of the loading dock. The actions were consolidated (hereinafter the personal injury action), and a default judgment against all the defendants in the personal injury action was obtained, awarding the plaintiff the total sum of $255,914.50.

The plaintiff alleged that he was unable to collect the judgment because the insurance providers for the defendants in the personal injury action disclaimed coverage on the ground that timely notice of the claim was not provided. The plaintiff commenced this action against the B & H law firm and Keenan (hereinafter together the law firm defendants), among others, alleging, inter alia, legal malpractice for the failure to investigate and timely notify the applicable insurance carriers in the personal injury action.

The law firm defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the, ground that the plaintiff could not demonstrate that he would have prevailed in the personal injury action because the doctrine of judicial estoppel or estoppel against inconsistent positions would have precluded such recovery. They contended that prior to the commencement of the personal injury action, the plaintiff obtained workers’ compensation benefits based upon a claim that he was injured when packages fell on him while he was standing in his delivery truck and moving packages from the loading dock. The law firm defendants argued that the defendant would have been precluded from recovering damages in the personal injury action based upon the inconsistent theory that the loading dock surface was defective. In opposition to the motion, the plaintiff argued, inter alia, that the judicial estoppel doctrine was inapplicable because there were issues of fact as to the cause of the plaintiff’s injuries and whether there were multiple causes of his injuries. The plaintiff also cross-moved pursuant to CPLR 3126 to strike the law firm defendants’ answer for spoliation of evidence, asserting that they destroyed the files from the personal injury action. In an order entered July 2, 2021, the Supreme Court granted the motion and denied the cross-motion, determining, among other things, that the plaintiff would not be able to prove the causation element of the legal malpractice cause of action due to his contrary position in his workers’ compensation claim. The plaintiff appeals.

[1, 2] A plaintiff seeking to recover damages for legal malpractice must establish that "(1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages" (Aquar–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 197 A.D.3d 544, 545, 152 N.Y.S.3d 504; see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Gardner v. Sacco & Fillas, LLP, 216 A.D.3d 1139, 1140, 189 N.Y.S.3d 725). "A defendant seeking summary judgment dismissing a legal...