Trapp-White v Fountain  2015 NY Slip Op 31835(U)  September 30, 2015  Supreme Court, New York County  Docket Number: 150719/2015  Judge: Donna M. Mills is an unusual decision in the immigration – legal malpractice filed.  First, there are a number of interesting details that come from ICE and support plaintiff’s case, details which are rarely in the hand of Plaintiff.  Second, it covers not only the liability aspect of legal malpractice, but also the question of successor counsel, in this case plaintiff herself.

Plaintiff is a native of Belize, residing in Suffolk County, New York. She entered the United States illegally in 1986, and soon thereafter the Immigration and Naturalization Service instituted deportation proceedings against her. On or about October 17, 1991, plaintiff was granted a voluntary departure from the United States. by May 17, 1992. By then, she had married a non-citizen, and she remained in the United States, allegedly because of her concern for her three young children, all born here. She had a fourth child in 1993, also born here. In 1995, plaintiff got her nursing license and divorced her first husband. She married / Calbert White (White), a U.S. citizen, in 1997. They later had a child together. In late 1997, a Form 1-130 petition on plaintiffs behalf was approved, after previously being denied.’ She took no further action on her immigration status until January 10, 2011, when she retained defendants. She wanted to settle her immigration status, bec~ause her 1991 deportation order was never rescinded. Defendants’ efforts were unsuccessful. Plaintiff was arrested on February 13, 2012, incarcerated until April 3, 2012, then deported. Shortly before she was deported, she retained Cella & Associates, LLC (Cella) to replace defendants. White continued his efforts on plaintiffs behalf, working with Cella. After almost two years in Belize, plaintiff received her Alien Registration Receipt Card (Green Card), and returned to the United States. The instant action commenced on January 23, 2015, with the filing of a complaint asserting a cause of action for legal malpractice.”

“Plaintiffs legal malpractice claim is based primarily on defendants’ purported failure to file a motion to reopen her deportation order and to move for a stay of removal. While plaintiff was principally represented by Fountain, the complaint implicates Rothbell, his partner, and the Firm as being vicariously liable. Plaintiff claims that but for defendants’ negligence, she would not have been deported. , The complaint states that defendants proclaimed their competence “in immigration, visas and citizenship” on their web site. Complaint, ,-i 26. Fountain, who was principally responsible for plaintiffs case, was cited on the web site as particularly expert: “In his years representing immigrants, he has not lost’!- case. His successes have included complicated cases of asylum, waivers, hardship and naturalization.” Id. Fountain allegedly advised plaintiff that resolution of her case would take about four months. Id., ,-i 31. He had plaintiff take a medical examination, arranged for her and White to have a psychological assessment, and to complete several government forms. Defendants provide a set of documents and materials that appear to be a complete or near-complete package for submission to the immigration authorities on plaintiffs behalf. Fountain aff, exhibit C. All are dated in early June 2011. Plaintiff alleges that, months after engaging him, Fountain “never provided her any information or update on the status of her case.” Complaint, il 33. She maintains that she “constantly e-mailed” Fountain about the progress of her case, but is now unable to produce any copies of such messages. She claims that, after her two years in Belize, she has “since forgotten the password to my e-mail account.” Trapp-White aff, il 16. Defendants offer no explanation or description of activity on plaintiffs case after June 2011 until plaintiffs arrest the following year. They acknowledge that “the motion to reopen [the Deportation order] was not filed.” Id. ”

“How a judge might have ruled on plaintiffs motion to reopen her order of deportation in 2011 is also purely speculative, even if it were filed with ICE cooperation. However, two-and-ahalf years later, plaintiff received favorable consideration by United States immigration authorities, apparently without the need for judicial intervention. Therefore, the question of what might have been cannot be decided at this time. The action shall continue. Lappin v Greenberg, 34 AD3d 277, 279 (1st Dept 2006) (“To survive a CP.LR 3211 [a] [7] preanswer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred”). ”