Reem Contr. v Altschul & Altschul 2016 NY Slip Op 30059(U) January 12, 2016 Supreme Court, New York County Docket Number: 104202/2011 Judge: Kelly O’Neill Levy is an example of the odd situation in which a legal malpractice case is a catalog of procedural errors. Defendants do not answer, then obtain an extension and then do not answer a second time. Litigants die, but their estates are not substituted. Unsigned affidavits are submitted. Out-of-state (NJ) forms are submitted which are alien to NY practice. Whatever…Justice Levy straightens it all out.
“Plaintiffs commenced this action for legal malpractice alleging that the Defendants inadequately and incompetently represented them in a prior ERISA action before the District Court for the Southern District of New York (the “ERISA Matter”). [* 1] On April 7, 2011 Plaintiff filed a summons and verified complaint and on April 21, 2011, personally served Defendants’ law firm. Defendants failed to file their answer within the thirty days required by CPLR 3012( c ). The Plaintiff then consented to Defendants serving a late answer, which defendants failed to do. Thereafter, on December 22, 20 I 1, Plaintiffs filed their first motion for default judgment. Defendants cross-moved to dismiss Plaintiffs’ legal malpractice claim for improper service of process. On May 30, 2012, the court (Singh, J.) denied Defendants’ motion to dismiss after finding service proper. The court further denied Plaintiffs’ first motion for default judgment finding that the allegations in the complaint taken with the verification in the petition were insufficient to make out a claim for malpractice. Defendants subsequently appealed the denial of the motion to dismiss. On May 20, 2014, the Appellate Division, First Department unanimously affirmed the trial court’s decision, finding that Defendants were properly served on April 21, 2011. On January 3~, 2015, Plaintiffs filed a second motion for default judgment. Shortly thereafter, Defendants filed their answer and cross-motion and requested discovery. Plaintiffs filed several additional motions. Each is discussed below. ”
“”To establish a prima facie case of legal malpractice, plaintiffs must establish that they would have been successful in the underlying action.” Abramovich v. Harris, 227 A.D.2d 1000, 1000 (4th Dep’t 1996). In support of their motion, Plaintiffs submit the report of Stanley A. Epstein, Esq. dated January 21, 2015, who in an unsigned letter, opined that in their representation of the plaintiffs in the ERISA action, the defendants failed to exercise the ordinary reasonable skill and knowledge required by counsel in such matters and that but for defendants’ negligence, the plaintiffs would not have been held liable. Here, the expert report submitted was not in the form of an affidavit and an affidavit of Mr. Epstein with certification of merit were submitted for the first time only in plaintiffs’ reply brief. ”
“That determination is the law of the case, see G!ytTWill Investments, N. V v. Shearson Lehman Hutton, 216 A.D.2d 78, 79 (I st Dep’t 1995), and without any additional support from plaintiffs in admissible form submitted in a timely manner, the court denies the motion for default judgment. See Courtney v. Port Authority of NY and NJ, 34 A.D.3d 716, 718 (2d Dep’t 2006)(motion court properly exercised its discretion in declining to consider an untimely expert affidavit submitted after an identical expert affirmation had already been submitted), Ho v. Brackley, 69 A.D.3d 533, 534 (I st Dep’t 20 I O)(motion court properly declined to consider sur-reply affirmation of legal expert). Defendants cross-move for dismissal of the action, asserting, among other things, that there is a conflict of interest between plaintiffs Reem Contracting and Plaintiff Szapiro and Plaintiff Reem Plumbing and Plaintiff Steven Stein and that Plaintiffs failed to substitute the Estate of Steven Stein following the death of Mr. Stein. They further move for a traverse hearing. The court finds dismissal inappropriate and denies the cross-motion in its entirety. Defendants have failed to establish a conflict of interest that would disqualify plaintiffs’ counsel, Mandelbaum Salsburg, from representing the Reem plaintiffs. See generally Abselet v. Satra Realty, 85 A.D.3d 1406, 1407 (3d Dep’t 2011). Furthermore, as set forth more fully below, defendants have not shown that plaintiffs’ delay in moving to substitute for Steven Stein prejudiced them as they had not yet answered at the time of Mr. Stein’s death. The portion of the cross-motion seeking a traverse hearing is denied. In its Order dated May 20, 2014, the First Department affirmed Justice Singh ‘s decision and order and found defendants’ denial of proper service unavailing. As that determination is binding on this court, the court denies Defendants’ request for a traverse hearing . ”
“Finally, Plaintiffs seek a protective order, pursuant to CPLR 3103(a), to prevent them from being compelled to respond to Defendants’ interrogatories and document requests filed on February 12, 2015, limiting the number of interrogatories to 25, and finding that the deposition of plaintiff Jona Szapiro should not be taken at all or relieving Mr. Szapiro from providing all documents related to plaintiffs’ claims. Pursuant to Local Rule I 0, “prior to making a discovery motion, counsel shall consult one another in a good faith effort to resolve any discovery disputes (see Uniform Rule 202.7).”2 Plaintiffs concede here that they have not submitted an affidavit describing a good faith effort { to resolve the dispute, arguing that such an affirmation is not applicable due to defendants’ untimely request for discovery. The court finds that reason unavailing. In light of plaintiffs’ failure to show that a good faith effort was made and the omission of the objectionable interrogatories and document requests as an exhibit to the motion, the court denies the motion. See Cerreta v. N..! Trans. Corp., 251 A.D.2d 190, 191 (I st Dep’t 1998). The court has considered the remainder of the arguments in the aforementioned motions and finds them to be without merit.”