Summary Judgment

…the client must prove that he sustained damages….

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Once the defendant-law firm has moved for summary judgment to dismiss the complaint, the client must prove that he sustained damages. See, Nill v Schneider, 173 AD3d 753 [2d Dept 2019]:

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d 597, 598, 79 N.Y.S.3d 636). “ An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages ” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 50, 19 N.Y.S.3d 488, 41 N.E.3d 353 [citation and internal quotation marks omitted]; see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 A.D.3d 1168, 1168, 52 N.Y.S.3d 672).

“ It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof ” (Quantum Corporate Funding, Ltd. v. Ellis, 126 A.D.3d 866, 871, 6 N.Y.S.3d 255). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d 959, 960, 77 N.Y.S.3d 118; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604).

Here, the defendant met her prima facie burden of demonstrating that the plaintiff did not sustain actual and ascertainable damages proximately caused by the defendant’s alleged negligent representation (see Harris v. Barbera, 163 A.D.3d 534, 536, 79 N.Y.S.3d 643; Panos v. Eisen, 160 A.D.3d 759, 760, 75 N.Y.S.3d 69; Kaloakas Mgt. Corp. v. Lawrence & Walsh, P.C., 157 A.D.3d at 779, 66 N.Y.S.3d 897). The evidentiary submissions established that the proximate cause of the plaintiff’s damages was the occurrence of a tree falling on the subject property during Hurricane Sandy, and not any claimed failure on the part of the defendant to discover, prior to the closing, any alleged discrepancy between the certificate of existing use and the 2007 survey of the subject property (see Excelsior Capitol LLC v. K & L Gates LLP, 138 A.D.3d 492, 492, 29 N.Y.S.3d 320; cf. Esposito v. Noto, 132 A.D.3d 944, 946, 19 N.Y.S.3d 300). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s determination granting the defendant’s cross motion for summary judgment dismissing the amended complaint insofar as asserted against her. For these same reasons, we agree with the court’s determination denying the plaintiff’s motion, inter alia, for summary judgment on the issue of liability.

R. A. Klass
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…Court held that collateral estoppel (issue preclusion) barred a legal malpractice action

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In Sang Seok Na v Schietroma, 2019 NY Slip Op 04017 [2d Dept May 22, 2019], court held that collateral estoppel (issue preclusion) barred a legal malpractice action, holding:

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d at 598, 79 N.Y.S.3d 636). To establish proximate 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 defendant attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Kluczka v. Lecci, 63 A.D.3d 796, 797, 880 N.Y.S.2d 698).

Here, the Schietroma defendants established their entitlement to summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of collateral estoppel (see Karimian v. Time Equities, Inc., 164 A.D.3d 486, 489, 83 N.Y.S.3d 227). “ The doctrine of collateral estoppel, a narrower species of res judicata, 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 or those in privity, whether or not the tribunals or causes of action are the same ” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487). The doctrine of collateral estoppel applies when: “ (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits ” (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [internal quotation marks omitted] ).

In order for the plaintiff to recover damages for legal malpractice against the Schietroma defendants based on their alleged failure to advise him of a potential legal malpractice claim against S & M, the plaintiff must prove that he would have prevailed in a legal malpractice action against S & M, but for the Schietroma defendants’ negligence. In order for the plaintiff to prevail in a legal malpractice action against S & M, the plaintiff must prove that he would have prevailed in the Greyhound action, but for S & M’s negligence.

The issue of whether the plaintiff would have succeeded on the merits in the Greyhound action was raised, necessarily decided, and material in the first legal malpractice action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Sang Seok NA v. Schietroma, 163 A.D.3d 597, 79 N.Y.S.3d 636). Thus, the Schietroma defendants established, as a matter of law, that their alleged negligence did not proximately cause the plaintiff’s damages by showing that the plaintiff would not have prevailed in a legal malpractice action against S & M, and that they were entitled to summary judgment dismissing the complaint based on the doctrine of collateral estoppel (see generally Lamberti v. Plaza Equities, LLC, 161 A.D.3d 841, 841–842, 73 N.Y.S.3d 901; Matter of Trump Vil. Apts. One Owner v. New York State Div. of Hous. & Community Renewal, 143 A.D.3d 996, 40 N.Y.S.3d 157). Accordingly, we agree with the Supreme Court’s determination to grant the Schietroma defendants’ motion for summary judgment dismissing the complaint.

R. A. Klass
Your Court Street Lawyer

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Issue of fact concerning the continuous representation doctrine

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In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
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Summary Judgment Motion Should Be Denied When There Are Material Issues of Fact

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On a motion for summary judgment, it is well-settled that the movant 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. If the movant fails to make such a showing, then the motion must be denied, regardless of the sufficiency of the opposing papers. Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. See Zuckerman v. City of New York, 49 NY2d 557 [1980]; SRM Card Shop v. 1740 Broadway Associates, 2 AD3d 136 [1 Dept. 2003]; Romano v. St. Vincent’s Medical Center of Richmond, 178 AD2d 467 [2 Dept. 1991].

R. A. Klass
Your Court Street Lawyer

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Ownership of Property among Two Sets of Spouses

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“Rodriguez’s Right to 50% of the Property Was Created by Operation of Law”

In this case, the Deed to the subject real property indicated ownership of the property as follows:

“GILBERTO HERNANDEZ and CONSOLACION HERNANDEZ, HIS WIFE … AND ERLINDA QUE and ELPIDIO RODRIGUEZ, HER HUSBAND.”

As to the 50% interest in the property owned by movant Elpidio Rodriguez and his wife, Erlinda Que, they owned their share as tenants by the entirety. Based upon the substantial case law in New York State, Mr. Rodriguez and Erlinda Que took ownership of their half-share as husband and wife, have continued as such until Erlinda Que’s death.

In Prario v. Novo, 168 Misc.2d 610 (Sup. Ct., Westchester Co. 1996), the court held that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.” Estates, Powers and Trusts Law § 6-2.2(b). A joint tenancy is subject to partition during the lifetimes of the joint tenants (24 N.Y.Jur.2d, Cotenancy and Partition, § 33; 3A Warren’s Weed, New York Real Property, Partition, § 3.03; id., vol. 2A, Joint Tenants, § 4.01) whereas a tenancy by the entirety cannot be divided absent consent of both spouses or upon a divorce (24 N.Y.Jur.2d, Cotenancy and Partition, §§ 38, 56; 3A Warren’s Weed, op. cit., Partition, § 3.12) The tenancy by the entirety can be changed by voluntary act of the couple, divorce or death.

In Goldman v. Goldman, 95 NY2d 120 (2000), the Court of Appeals noted that a tenancy by the entirety is a form of real property ownership available only to parties married at the time of the conveyance (Kahn v. Kahn, 43 N.Y.2d 203, 207, 401 N.Y.S.2d 47, 371 N.E.2d 809). As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property (Neilitz v. Neilitz, 307 N.Y. 882, 122 N.E.2d 924). Additionally, “each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” (V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 565, 510 N.Y.S.2d 848, 503 N.E.2d 496). Only if the legal relationship between the husband and wife is judicially altered through divorce, annulment or legal separation, does the tenancy by the entirety converts to a tenancy in common (Kahn v. Kahn, 43 N.Y.2d, supra, at 207, 401 N.Y.S.2d 47, 371 N.E.2d 809).

Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 (Sup. Ct. Queens Co. 2000), the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.” Citing to Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337.)

The Court of Appeals held, in Hiles v. Fisher, 144 NY 306 (1895), that the husband had a right to mortgage his interest, which was a right to the use of an undivided half of the estate during the joint lives, and to the fee in case he survived his wife; and by the foreclosure and sale the plaintiff acquired this interest, and became a tenant, in common with the wife, of the premises, subject to her right of survivorship.

Revisiting this issue, in V.R.W., Inc. v. Klein, 68 NY2d 560 (1986), the Court of Appeals held:

What makes this right of survivorship unique and differentiates it from the right of survivorship inherent in an ordinary joint tenancy is that it remains fixed and cannot be destroyed without the consent of both spouses (see, Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; compare, Matter of Polizzo, 308 N.Y. 517, 127 N.E.2d 316; Matter of Suter, 258 N.Y. 104, 179 N.E. 310, with Matter of Klatzl, supra, 216 N.Y. at pp. 86-87, 110 N.E. 181; Hiles v. Fisher, supra). As long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property (see, Stelz v. Shreck, supra, 128 N.Y. at p. 266, 28 N.E. 510; Bertles v. Nunan, supra, at p. 156). Similarly, involuntary partition is not available to either cotenant as a means of severing the tenancy by the entirety, since a contrary rule would permit a vindictive or irresponsible spouse to deprive the other of the comforts of the marital home (see, Kahn v. Kahn, supra, 43 N.Y.2d at p. 208, 401 N.Y.S.2d 47, 371 N.E.2d 809; Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759; Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43).

Accordingly, the ownership interests of Mr. Rodriguez and Erlinda Que as “husband and wife” created a tenancy by the entirety. Upon the death of his wife, Mr. Rodriguez became the owner of her share by operation of law; any Last Will and Testament of Erlinda Que would not alter his rights.

Long-established New York law is that real property held as tenants by entirety does not pass under the Will of a decedent spouse. In re Rothko’s Estate, 77 Misc.2d 168 [Sur. Ct., NY Co. 1974]; In re Strong’s Will, 171 Misc. 445 [Sur. Ct., Monroe Co. 1939] (“A severance of a tenancy by the entirety cannot be effected by the unilateral last will of one of the spouses alone.” Citing to Levenson v. Levenson, 229 AD 402 [2 Dept. 1930]).

On the death of the first tenant by the entirety of real property, his estate ceases to have any interest in such property. Matter of Harris’ Estate, 88 Misc.2d 60 [1976], affirmed 61 AD2d 881.

R. A. Klass
Your Court Street Lawyer

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