Plaintiff hires attorney 1 and after a while begins to court Attorney 2.  Meanwhile, back at home, no one is looking after affairs, and the litigations begin to unravel. Who is at fault?

Devonshire Surgical Facility, LLC v Law Offs. of Leo Tekiel,   2013 NY Slip Op 31441(U)
July 3, 2013  Supreme Court, New York County  Docket Number: 105558/07
Judge: Cynthia S. Kern describes the duties and obligations of the attorneys in this third-party dismissal motion. 

"Third- party defendant Kenneth L. Kutner, Esq. (“Kutner”) has brought the present motion for summary judgment dismissing the third-party complaint as against him. For the reasons stated below, the motion is granted and the third-party complaint is dismissed as against Kutner.

The relevant facts are as follows. Kutner is an attorney. He alleges that in 2004, he was advised by a friend of his, Mr. Einiger, that a client of Mr. Einiger, Dr. Allan Chamberlain, may have a cause of action against various insurance companies for improperly denying insurance payments for medical services rendered. Kutner agreed with Mr. Einiger to cooperatively investigate the claims regarding misconduct by the insurance companies with regard to denying payments to Dr. Chamberlin’s medical practices Devonshire Surgical Facility, LLC (“Devonshire) and Carnegie Hall Orthopedic Services, P.C. (“Carnegie”) and to assist in commencing a case in Supreme Court against several of the offending insurance companies. This action was commenced in September 2004. In connection with the Supreme Court action, Hoffinan, Einiger and Polland , PLLC was directly retained by Dr. Chamberlin.Kutner was never directly retained by Dr. Chamberlin in the Supreme Court action but was retained by Mr. Einiger’s firm to assist in the Supreme Court action.

The Travelers Action sought payment for medical services rendered by Dr. Chamberlin’s medical practices to fourteen of Travelors’ insureds under no fault insurance coverage. The Tekiel defendants had assumed the representation in the Travelors Action from prior counsel in the matter, Paul Solda, Esq. After the plaintiffs in the Travelors Action failed to respond to discovery requests which Travelors had served on them, Travelors filed a motion to dismiss the Travelors Action pursuant to CPLR 3 126 for the continued failure to provide the requested discovery in March 2004. After Travelors filed the motion to dismiss, Kutner sent a letter to Mr. Tekiel dated March 25,2004 in which he requested, inter alia, that Mr. Tekiel furnish him with all captions and index numbers of actions already commenced so that Kutner could prepare substitution of attorney forms. In response to this letter, Tekiel sent Kutner correspondence dated March 26,2004 which included a list of nineteen commenced actions with regard to the Tekiel Defendants’ representation of Chamberlin’s medical practices. The list included the Travelors Action and noted that a motion to dismiss was returnable on April 5,2004 and that discovery had not been provided. On or about May 10,2004, Kutner again sent a letter to Tekiel requesting that Tekiel adjourn Travelors’ motion to dismiss so as to permit Kutner and his co-counsel to “finalize the anticipated substitution of attorneys in the case” being handled for Dr. Chamberlin. On May 1 1,2004, on the return date of the motion to dismiss, the Tekiel Defendants, through per diem counsel, stipulated in the Travelors action to a self executing conditional order of preclusion if the requested discovery was not provided within sixty days.

Based on this court’s finding that Kutner never owed any duty to represent plaintiffs in the Travelors Action, there can be no valid third party claim for contribution. In order to determine whether a third party action for contribution exists, “the critical issue is whether the third- party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiffs’s damages.” Rosner v. Paley, 65 N.Y.2d 736,738 (1985). Since this court has already determined that Kutner did not owe any duty plaintiffs in the Travelors Action since he never represented them in that action, he cannot be found to have contributed to plaintiffs’ injuries in that action and cannot be found liable for contribution. ’ The cause of action for contribution is also insufficient as a matter of law because the damages sought in the underlying action are purely monetary. Under New York’s contribution statute, “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” CPLR 6 140 1. Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21,26 (1987). The law is clear that where “the
underlying claim seeks purely economic damages, a claim for common-law contribution is not
available.” Children’s Corner Learning Center v. A Miranda Contracting Corp., 64 A.D.3d 3 18,323 (1” Dept 2009). “[Tlhe determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought.” Rockefeller University v. Tishman Construction Corp., 240 A.D.2d 341 (1” Dept 1997). If the damages sought are to be placed in as good a position as one would have been but for the acts being sued upon, then the claim is for economic damages. Children’s Learning Center, 64 A.D.3d at 324. "