Close Scrutiny Leads to Legal Malpractice Dismissal
It's well understood that Courts closely scrutinize the underlying cases when a legal malpractice matter comes up for a dismissal motion. Jean-Baptiste v Law Firm of Kenneth B. Mock ; 2012 NY Slip Op 05913 Decided on August 8, 2012 Appellate Division, Second Department is no exception. The short decision states in cursory fashion: " The Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice. The documentary evidence conclusively established that the plaintiff does not have a viable claim of legal malpractice (see Walker v Kramer, 63 AD3d 723; Faden v Satterlee Stephens Burke & Burke, LLP, 52 AD3d 652). "
When one takes a look at the Supreme Court decision, the matter comes into closer focus. This was a landlord-tenant case. "Homere, as petitioner landlord represented by the defendant, commenced a nonpayment proceeding in 2008 in the First District Court, Hempstead Part, County of Nassau, Landlord and Tenant against Janice Henderson, as respondent tenant. District
Court Judge Scott Fairgrieve found, the respondent having been duly served with the notice of petition and petition, the allegations in the petition were established. Judge Fairgrieve noted the parties entered into a settlement stipulation, and subsequently an affirmation of non-compliance was filed with the Clerk of that Court, so upon the motion of the defendant Judge Fairgrieve directed judgment entered for Homere. Judge Fairgrieve also determined no rent nor attorneys ' fees was due and owing to Homere. On December 2, 2008, the Clerk of First District Court entered a judgment of possession of leased premises, to wit 196 Long Beach Road, 1 st floor, Hempstead, New York to Homere with a business address of 11 Oak Avenue, Hempstead, New York. That
judgment directed the issuance of a warrant of eviction to remove the respondent tenant and all persons from the demised premises, and place Homere in full possession, and it severed the landlord tenant relationship (see RPAPL 749). In 2009, Homere commenced an action in the First District Court, Hempstead Part County of Nassau under index number 1194/09. On September 16 2009, District Court Judge Michael A. Ciaffa granted Homere counsel's motion , the defendant here, to withdraw there. Homere subsequently retained Chantel Jean Baptiste, Esq. , as counsel in
that civil action. On January 7, 2010, Judge Ciaffa granted a motion to amend the complaint adding the plaintiff husband here as a pro se plaintiff there while granting leave to Chantel Jean Baptiste, Esq., Homere s counsel to withdraw there. On April 14 2010, Judge Ciaffa dismissed that District Court action, and found the plaintiff husband here was not a proper party there. Judge Ciaffa stated on the record , " it seems the parties had a full and fair opportunity in the landlord-tenant case to have all the issues in the case addressed. " Judge Ciaffa concluded , " the claim for back rent was effectively lost at the time that the landlord-tenant court issued its judgment of eviction and your opportunity to pursue that claim was basically given up." Judge Ciaffa found the testimony of the former tenant, Janice Henderson who appeared pro se credible, and determined the
plaintiffs there failed to prove their claims regarding Henderson s responsibility for excessive gas and water charges. Judge Ciaffa added, while Henderson was not completely innocent in the situation, there was a significant fact issue whether the subject premises were sufficiently habitable and that Henderson had a substantial claim against the plaintiffs."