We again look at 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.

“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. ”

“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. ”

“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. There is ample evidence of Fountain’s active attention to plaintiffs case once she was in jail. He sent an email to Marty Ryan (Ryan), Deputy Chief Counsel, Immigration and Customs Enforcement (ICE), on March 7, 2012, introducing plaintiffs case to Ryan, and asking ICE to join in a motion to reopen plaintiffs deportation order. Fountain affirmation, exhibit A at 9-10. Fountain labeled his message “Urgent,” and Ryan replied by email the same day. Ryan raised several questions, including did plaintiff “have any criminal issues,” and advised Fountain to proceed with a petition and application for relief, addressed to Jason Aguilar (Aguilar), Acting -Chief Counsel. Id. at 8-9. On March 8, 2012, the next day, Fountain submitted a collection of pertinent documents to Ryan and Aguilar, and informed them that plaintiff “confirmed that she has no criminal issues.” Id. at 8. Over the next few days, Fountain and Aguilar exchanged messages about White’s military service and plaintiffs five children. Id. at 5-7. On March 16, 2012, Fountain wrote to Aguilar that all of the children, ranging from age 11to21, live at home, have “a very strong relationship with their mother (as well as Mr. White, who has raised them as though they were his children),” and attend church regularly. Id. at 4-5. Aguilar’s next message, on March 17, 2012, apparently took Fountain by surprise. “I have information that her two sons were arrested and are currently charged with murder and gun trafficking. Why was this not brought to my attention?” Id. at 4. Fountain replied: “This is the first that I have heard of this!” Id. In fact, plaintiffs two adult sons were arrested on February 10, 2012, three days before plaintiffs arrest, the older on charges of sale of firearms, the younger on charges of murder, sale of a controlled substance, sale of firearms, and unauthorized use of a vehicle. In a follow up message to Aguilar, on March 17, 2012, Fountain, citing White as his source, claimed “that while the sons continued to have rooms at home and to have some clothes there, they were often out of the house and staying with their girlfriends or friends.” Id. at 3. Fountain further paraphrased White’s contention that “his relationship with them had been strained because they would not follow his rules.” Id. White, according to Fountain, also maintained that he learned of the arrests only after plaintiffs arrest, and he shielded her from the news for over a month. Id. ”

“Defendants contend that plaintiff cannot establish negligence in their representation, when they chose between reasonable courses of action. See Hand v Silberman, 15 AD3d 167, 167 (1st Dept 2005) (“Neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice”). Defendants contend that “[p ]roceeding with the filing of the joint motion would have necessarily required plaintiff to disclose her current address and location, which could have exposed her location and led to her arrest and deportation.” Bruno affirmation, ,-i 21. However, nowhere do defendants identify the time, place or manner in which they conveyed this information to plaintiff. Defendants state that plaintiff “advised Attorney Fountain not to proceed with the filing of the motion for this very reason.” Id. She strongly disputes this. “Contrary to defendants’ claims, I specifically hired them to file these motions.” Trapp-White aff, ,-i 15. She asserts that “before I even retained Fountain, I knew that I would be required to disclose my address in order to obtain permanent lawful residence and that by doing so, I risked alerting authorities to my location and being deported.” Id. Defendants insist that “[t]here would be no other reason for Attorney Fountain to make sure all of the papers were prepared but then not to submit them, other than plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so.” Bruno aff, ~ 22. They fail to recognize that legal malpractice is an alternate explanation, as plaintiff asserts. While choosing among reasonable alternatives is a defense to a claim of legal malpractice, defendants fail to identify or describe the alternative that they choose after June 2011. It is not defendants’ conduct up to June 2011 that plaintiff complains of, but, rather, their purported inaction from June 2011 until her arrest in February 2012. They never state that plaintiffs alleged refusal to file a motion to reopen the deportation order for fear of exposure actually ended the matter. Nothing memorializes such an understanding. The issue of what legal advice and services defendants gave plaintiff remains unsettled, and warrants continuation of the action. Defendants do not announce what course of action they recommended to plaintiff after she assembled her package of materials, with their assistance, for submission to the immigration authorities. They intimate that they advised her that submission would have exposed her to arrest and deportation, but left the decision to her. See Bruno aff, ~ 22 (“plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so”). Yet, the inaction led to the same unwelcome results, arrest and deportation. ”

“Defendants also argue that Cella had l 0 days to file the motion to reopen plaintiffs deportation order, already drafted by defendants, and to move for a stay of removal. ,According to defendants, it was Cella’s failure to act that was the proximate cause of plaintiffs alleged damages,. Defendants had 14 months during which they represented plaintiff in order to avoid having her imprisoned and deported. Yet, they contend that Cella should have been able to accomplish that in 10 days, and that only Cella should be liable for plaintiffs damages. Balancing 10 days against 14 months may be an unreasonable comparison, but it is an issue that warrants continued examination by the court. The action shall not be dismissed on the basis of Cella’s succession in representing plaintiff. ”

“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”). ”