We discussed Gilbo v Horowitz 2018 NY Slip Op 31844(U) July 31, 2018 Supreme Court, New York County Docket Number: 158727/2017 Judge: Margaret A. Chan last week in the context of ripeness in a multiple -attorney setting. Beyond whether the case is ripe against prior attorneys while the underlying case is pending, is the question of how to break out (or apportion) blame in a multi-attorney setting. First, some of the facts from the car accident case:
“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).
On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated asettlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).
For his claim against the City of New York, Gilbo contacted another attorney, non-party Sherwin Suss, who was then of counsel to defendant Dillon, Horowitz & Goldstein, LLP (DHG), in November 2012 (id at ~ 29). Plaintiff executed a retainer agreement with DHG on March 13, 2013 (NYSCEF Doc. No. 18-Retainer). Despite the retainer, plaintiff appeared self-represented at a GML §50h hearing held with the City of New York on October 16, 2013 (NYSCEF Doc. No. 7). DHG commenced
an action on plaintiffs behalf against the City of New York in Kings County Supreme Court under the Index no. 506293/2013 (the Kings County action). DHG characterized its retainer agreement as one to “investigate the viability of Plaintiffs potential cause of action against the City” (NYSCEF Doc. No. 30 – Dillon Aff at~ 13). DHG made a FOIL request, conducted a site visit with plaintiff, and timely filed the Kings County action to preserve plaintiffs claim against the City (id). In November 2014, Suss stopped working for DHG. Three years later, DHG moved to be relieved as counsel in the Kings County action, which was granted on December 1, 2017. Court records reflect that Gilbo represents himself in that Kings County action. ”
“DHG argues that the legal malpractice claim also fails because the complaint fails to articulate that its conduct was the “but for” cause of any alleged damages. It also argues that there are no damages as the Kings County action is pending. This court concurs on both arguments.
Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). Plaintiff withdraws his claim for specific performance (second cause of action) in his opposition (NYCSEF Doc No. 43 – Plaintiffs Opposition 11 17). In any event, that cause of action is not cognizable. A judge of the Kings County Supreme Court permitted DHG to be relieved in that action. Thus, this court could not make an award of specific performance in contravention of another court’s determination to relieve DHG. Plaintiffs cause of action for specific performance is permitted to be