This case from Kings county is puzzling because the court found it was permitted to treat a 3211[a] motion as a 3212 Motion for Summary Judgment, without notice to the parties, based upon use of extrinsic materials. Read the decision:
"Defendants, Lindenbaum & Young and Alan Young, Esq. (the Young defendants), in this legal malpractice action, move, pursuant to CPLR Rule 3211 (a) (7), for dismissal of the cross-claim against them by defendants, Pollack & Associates, PLLC and Ira B. Pollack, Esq. (the Pollack defendants). The instant case and the earlier cases that led to this case have meandered through the courts and Part 27. My March 27, 2006 decision and order, Richardson v. Lindenbaum & Young, 11 Misc 3d 1070 (A), 2006 NY Slip Op 50453 (U), granted the Young defendants, pursuant to CPLR Rule 3211 (a) (7), dismissal from the action due to plaintiffs’ failure to state a cause of action against them. I observed, at 2, in paraphrasing Paul McCartney, that "the instant action is part of a ‘long and winding road’ of litigation." However, the legal "road" traveled in this litigation has yet to reach its final destination. Last week, in Richardson v. Lindenbaum & Young, 2007 NY Slip Op 50130 (U), I denied plaintiffs’ motion and the cross-motions of the Pollack defendants and plaintiffs, pursuant to CPLR Rule 2221, for leave to renew and reargue the March 27, 2006 decision and order. I held, at 1, that:
t]his Court did not overlook or misapprehend matters of fact in making its March 26, 2006 decision and order. Plaintiffs and the Pollack defendants failed to introduce new facts not offered in the prior determination or demonstrate that there has been a change in the law. Further, this Court did not have to give notice that it intended to treat the Young defendants’ prior motion for dismissal as a summary judgment motion, because the parties deliberately charted a summary judgment course, by laying bare their proof in submitting extensive extrinsic documentary evidence and affidavits, which set forth the convoluted chronology that led to this action.
The underlying actions which led to the instant legal malpractice case involved an alleged fraudulent conveyance of real property and collection on a judgment. The Pollack defendants were relieved as counsel for plaintiffs and replaced by the Young defendants. Subsequently, the now retired Justice Lewis Douglass, in a September 19, 2002 order, held plaintiffs in contempt for their wilful failure to comply with a subpoena duces tecum and deposition in connection with a judgment entered on December 12, 2001 for $727,847.27 [my March 27, 2006 decision and order, p. 2]. Thereafter, Justice Douglass refused to vacate the default and contempt of plaintiffs in the instant action. He found "no excusable grounds for default nor do I find [a] meritorious defense [my March 27, 2006 decision and order, p. 3]." In my March 27, 2006 decision, at 3, I held that:
[P]laintiffs have failed to allege that the Young defendants were the proximate cause of their loss, that they sustained actual damages, and "but for" the malpractice of the Young defendants, plaintiffs would not have sustained some actual and ascertainable damages. Further, subsequent to the substitution of the Pollack defendants as new counsel there was ample opportunity to vacate plaintiffs’ default and present a meritorious defense, if plaintiffs had one. When Justice Douglass issued his September 19, 2002 and January 9, 2003 orders, plaintiffs were then represented by the Pollack defendants, not the Young defendants.
To establish legal malpractice, as instructed in Iannarone v. Gramer, 256 AD2d 443, 444 (2d Dept 1998), a plaintiff must establish, "(1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care." See Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 (2d Dept 2005); Volpe v. Canfield, 237 AD2d 282 (2d Dept 1997). In the underlying decision, at 4, I found that plaintiffs failed to allege that they would have prevailed but for the malpractice of the Young defendants. I held, at 4 – 5, that:
plaintiffs’ theory of liability is based upon Justice Douglass’ September 19, 2002 and January 9, 2003 orders for contempt and refusal to vacate plaintiffs’ default, finding that plaintiffs lacked an excusable default or a meritorious defense. Plaintiffs’ claims were viable when the Pollack defendants became plaintiffs’ counsel on August 7, 2002. According to plaintiffs’ complaint, it was the failure of the Pollack defendants to comply with various Court instructions to submit proof of a meritorious defense that caused Justice Douglass to deny the motion to vacate the default judgment. Justice Douglass, in his January 9, 2003 Order, discussed Mr. Pollack’s "continuing pattern of default followed by motion to vacate, followed by default," and "how this litigation is regularly delayed." In cases where a successor counsel had sufficient time to protect a party’s rights, as in the instant case, the outgoing counsel could not be liable for malpractice. Any alleged negligence by an outgoing attorney cannot be the proximate cause of any of plaintiffs’ alleged damages. Kozmel v. Law Firm of Allen L.Rothenberg, 241 AD2d 484 (2d Dept 1997); Golden v. Cascione, Chechanover & Purcigliotti, 286 AD2d 281 (2d Dept 2001); Albin v. Pearson, 289 AD2d 272 (2d Dept 2001); Perks v. Lauto & Garabedian, 306 AD2d 261 (2d Dept 2003); Ramcharan v Pariser, 20 AD3d 556 (2d Dept 2005).
In viewing plaintiffs’ evidence in opposition to summary judgment and dismissal, I found that plaintiffs failed to demonstrate the existence of any triable issues of fact. Therefore, I granted the motion of the Young defendants, pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs’ verified complaint against them, for failure to state a cause of action.
However, this Court’s March 27, 2006 decision and order was silent as to the status of the cross-claim brought by the Pollack defendants for contribution and/or indemnification [exhibit B of affirmation in opposition – verified answer with cross-claim of the Young defendants]. The Young defendants, to put this issue to rest, argue that the Pollack defendants’ cross-claim against them is baseless because it is derived from the plaintiffs’ dismissed complaint for legal malpractice against the Young defendants. In opposition, the Pollack defendants assert that their cross-claim is an independent pleading. It is not dependent upon the survival of plaintiffs’ complaint. The Pollack argument is correct as far as it goes. However, in the instant case, the Pollack defendants’ cross-claim against the Young defendants is impossible to separate from plaintiffs’ claims in the complaint. Therefore, it follows logically, that upon the dismissal of the complaint against the Young defendants the cross-claim of the Pollack defendants, derived from plaintiffs’ complaint, is dismissed.
CPLR §3019 (b) states:
A cross-claim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more defendants, a person whom a defendant represents or a defendant and other persons alleged to be liable. A cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
While a cross-claim "may be any cause of action in favor of one or more defendants" [Emphasis added], it is clear that the Pollack defendants’ cross-claim is derived from and related to plaintiffs’ claims against both the Young defendants and the Pollack defendants. It cannot survive the dismissal of the complaint against the Young defendants. The cross-claim [exhibit B of affirmation in opposition] states:
[t]hat if it is determined that the answering defendants are liable to any degree to the plaintiff [sic], whether because of negligence, by operation of law or any other reason, the answering defendants are entitled to have the liability apportioned among and between the co- defendants by way of contribution and/or is entitled to be indemnified by said co-defendants.
In this case the cross-claim arises directly and solely from plaintiffs’ claims. The Young defendants successfully demonstrated that plaintiffs failed to properly plead the necessary elements for legal malpractice against them. In my March 27, 2006 decision and order, at 3, I concluded that "plaintiffs have failed to allege that the Young defendants were the proximate cause of their loss, that they sustained actual damages, and ‘but for’ the malpractice of the Young defendants, plaintiffs would not have sustained some actual and ascertainable damages." Given these findings, and the undisputed fact that no judgments were entered against plaintiffs until well after the Young defendants were relieved as counsel, the Young defendants have no liability in the instant action as to the Pollack defendants.
The Pollack defendants rely upon Brooks v. Chemical Leamon Tank Lines, Inc., 71 AD2d 405 [1st Dept 1979] for the proposition that a cross-claim is not required to be dependent upon the claim of a plaintiff. While this is true, in the case at bar the Pollack defendants’ cross-claim is dependent upon plaintiffs’ claims. The Pollack cross-claim does not arise out of a separate transaction with the Young defendants, apart from plaintiffs’ malpractice claims. As a result, the Pollack defendants’ cross-claim for contribution and/or indemnification is no longer viable and must be dismissed.
Further, the Pollack defendants’ reliance on La France Carpets, Inc. v. U. S. Rubber Co., 19 AD2d 812 [1st Dept 1963] is similarly misplaced. While the La France Carpets Court correctly states that CPLR §3019 (b) "allows a cross claim for any cause of action and does not require it to be dependent on the claim of the plaintiff," this is not the situation before the Court. Plaintiffs’ claims and those of the Pollack defendants are inextricably intertwined. Therefore, the Pollack defendant’s cross-claim is subsumed within the plaintiffs’ complaint. Thus, the dismissal of plaintiffs’ claims against the Young defendants renders the cross-claim of the Pollack defendants against the Young defendants meritless.
Accordingly, it is
ORDERED that the motion by defendants Lindenbaum & Young and Alan Young, Esq., pursuant to CPLR Rule 3211 (a) (7), for dismissal of the cross-claim against them by defendants Pollack & Associates, PLLC and Ira B. Pollack, Esq., because of the failure of defendants Pollack & Associates, PLLC and Ira B. Pollack, Esq. to state a cause of action against them, is granted. "
This constitutes the Decision and Order of the Court