Brion v Moreira  2016 NY Slip Op 31828(U)  September 30, 2016  Supreme Court, New York County  Docket Number: 155815/2014  Judge: David B. Cohen teaches the essentials of contribution and indemnity in a legal malpractice setting.

Plaintiff wanted to have the will of a relative revoked, and an earlier will reinstated.  There was big money at stake, and he hired Defendant law firm to work on the revocation.  This took place while the testator was still alive.  The law firm was unsuccessful in the revocation.  Testator died, and a second law firm was hired to probate the will, or in essence oppose the probate.  That too went badly.  What is the relationship between law firm 1 and law firm 2 when plaintiff sues law firm 1?

“It is well settled law that that an attorney sued for malpractice may assert a claim for contribution against another lawyer who advised the plaintiff on the same matter (Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190 [1st Dept 2013]). In Schauer v Joyce (54 NY2d 1 [1981]), the Court of Appeals explained the malpractice contribution theory stating: Id. at 5.

“CPLR 1401, which codified this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), provides that “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.” The section “applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative, and even intentional tortfeasors” (Siegel, New York Practice,§ 172, p 213; see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362- 363).”

“The Schauer Court continued and explained that the relevant question under CPLR 1401 is not whether the third-party defendant owed a duty to defendant but whether they each owed a duty to plaintiff and by breaching their respective duties each contributed to the ultimate injuries (id.). “The ‘critical requirement’ for apportionment by contribution under CPLR article 14 is that “the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought” (Raquet v Braun, 90 NY2d 177, 183 [1997]). Thus, for defendants to successfully state a cause of action here against Delaurentis, it must allege that Delaurentis had a duty to plaintiffs and that Delaurentis’ conduct breached such duty. ”

“If defendants are successful in their defense of this matter, the claim for contribution will be academic as defendants will not be liable for malpractice. If plaintiff is successful in this matter and defendants’ are found to be liable for malpractice for its failure to revoke the 2010 will and reinstate the 2004 will, defendants’ first two theories for contribution could not have had a part in causing, exacerbating or augmenting plaintiffs’ injuries as to the $2,100,000 sought. The malpractice injury solely stems from defendants’ alleged (in)actions. There is no allegation here that DeLaurentis augmented the injury be also failing to revoke/reinstate the wills in question. In fact, based upon the facts presented, DeLaurentis’ involvement began with the representation of plaintiff after the death of Miguel Brion and, thus, could not have revoked the will and stopped the injury (see Pellegrino v File, 291 AD2d 60 [1st Dept 2002]). To the extent that defendants’ contend that DeLaurentis’ advice was faulty and had DeLaurentis litigated the probate matter the result would have been different, if that contention is correct then, defendants would not be liable for malpractice. Plaintiffs·’ entire action for damages hinges on that very question and plaintiffs can only be successful if they prove otherwise, i.e., that the 2010 will was not revoked. Therefore, to the extent that defendants’ seek contribution relating to the portion of plaintiffs’ claim for $2, 100,000, that claim is dismissed.2 However, plaintiffs also seek $835,000 in damages for legal fees relating to the probate matter. Defendants have properly stated a cause of action for contribution in that portion. Defendants’ contention that a portion of those legal fees are higher than they should be because of wrongful motion practice, poor advice and failure to seek defendants’ testimony all could have exacerbated the total legal fees and thus, defendants’ have properly stated a cause of action for contribution. DeLaurentis argues that those decisions are legal strategical decision and cannot rise to the level of malpractice. DeLaurentis cites to Rosner v. Paley, 65 NY2d 760 [1985] and Mars v. Dobrish, 66 AD3d 403 in support of this theory. However, Rosner and its progeny stand for the proposition that neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice (id.; Hand v Silberman, 15 AD3d 167 [1st Dept 2005]). Here, defendants are not alleging that the actions of DeLaurentis constitute malpractice. Rather, they allege that to the extent that plaintiffs suffered $835,000.00 of damages in legal fees, the actions of DeLaurentis augmented and exacerbated a portion of that amount and seek contribution for that portion. Because defendants have stated a cause of action for contribution and not malpractice, that portion of the complaint survives.  “