In Zegelstein v The Roth Law Firm PLLC  2020 NY Slip Op 30581(U) February 28, 2020 Supreme Court, New York County Docket Number: 154224/2018 Judge: W. Franc Perry Plaintiff sued insurers and others in State and Federal Court where each of the cases was dismissed. The Legal Malpractice case is now dismissed as well,

”  The original complaint_ in an underlying action alleged that plaintiff Zegelstein is an anesthesiologist and owner of plaintiffs Custom anesthesia Services, PC and Innovative Anesthesia Solutions, P.C. The defendants in that action are alleged to be doctors with practices
in Manhattan, Haroon Chaudry, M,.D. (Chaudry), Michael J. Faust (Faust), M.D., Jed Kaminetsky, M.D.(Kaminetsky), Michael P. Krumholz, M.D. (Krumholz) and Alan Raymond M.D. (Raymond), who entered, beginning in 2002, into separate agreements with Zegelstein for her to provide in-office anesthesia services to their patients, as well as to VCare LLC. The
agreements “provided for Zegelstein’s billing health insurance companies (the ‘insurers’) and/or patients (if uninsured or for balances owed after insurance payments were made) separately from the defendant physicians. Billing for services were allegedly rendered to the patients from June 2007 through 2011″ (Zegelstein v Faust, Slip Op 31257(U), *2 [Sup Ct, NY County 2017]). Zegelstein alleged that insurer/patient funds intended as payment for her services were deposited into accounts of the defendant physicians and converted by them. She alleged that she did not begin to learn of the theft until mid-2012.”

“Plaintiffs commenced that action by filing a summons with notice on April 17, 2014. On or about August 8, 2014, plaintiffs retained defendants to take over the representation of the case. At that time, when Roth provided a substitution of counsel, no summons or summons with notice had yet been served upon the defendants in that action. On August 13, 2014, Roth filed a verified complaint, and served that complaint upon the defendants in that action, but did not
serve the summons or summons with notice upon the defendants. Between August 13, 2014 and October 17, 2014, Roth was advised by counsel for the defendants in that action that they were never served with a summons.” Yet, Roth did not serve the summons.

During October 2014, defendants filed multiple motions to dismiss. On November 26, 2014, Roth, plaintiffs’ counsel at the time, cross-moved to extend the time to file the verified· complaint. On April 25, 2015, Justice Singh rendered a decision dismissing the complaint. In that decision, the court found that it lacked personal jurisdiction over the defendants due to “the failure to serve a, summons with the complaint,” and therefore did not consider plaintiffs’ motion to extend the time to file the complaint. Plaintiffs allege in their complaint herein that at this
point in the underlying litigation that “even though the claim was doomed by the lack of service of a summons, Defendants continued to litigate the action, charge fees and fail to remedy the situation” (complaint, ~ 83). This, however, is contradicted by the testimony in her own affidavit in support of her opposition to defendants’ motion to dismiss, in which Zegelstein avers that she “informed Roth [she] wanted to appeal the decision and he misadvised [her] that [she] should refrain from appealing the decision, because an appeal would have no merit” (Zegelstein aff, ~ 38). ”

“In this action, plaintiffs allege that but for Roth’s “egregious lack of diligence”, plaintiffs’ case would have survived dismissal and had a favorable outcome. Plaintiffs list several failures by Roth, including his failure to serve the summons  in the state case within the 120 days as
mandated by the CPLR, and his failure to attach the proposed amended complaint to his cross motion to amend the complaint, resulting in the denial of that motion. Plaintiffs allege three causes of action: malpractice, breach of contract and breach of fiduciary duty.
Defendants move to dismiss on the ground that plaintiffs cannot maintain a cause of action for malpractice in light of the decisions issued by Justice Singh and District Judge Forrest dismissing the underlying actions. Further, defendants argue that plaintiffs’ causes of action for breach of contract and breach of fiduciary duty are duplicative of plaintiffs’ malpractice claim and, therefore, should be dismissed.”

“The court finds that plaintiffs here are unable to meet their burden to prove that “but for” the alleged negligence of defendant, they would have prevailed in the underlying matter. Plaintiff alleges that defendant’s failure to serve the summons timely, and consequent failure to obtain jurisdiction over the defendants in the underlying action, or to commence a new action, doomed her claim. However, the decisions of both Justice Singh and District Judge Forrest undermine these allegations.

The First Department affirmed Justice Singh’s decision dismissing plaintiffs’ underlying lawsuit:
“In addition to plaintiffs’ extreme lack of diligence, the statute of limitations on the majority of plaintiffs’ claims appears to have expired prior to the initiation of this action, although it is difficult to say with certainty due to the lack of specificity in the complaint. This lack of specificity also weighs against allowing an extension, as does the prejudice suffered by defendants, who were unable to timely investigate plaintiffs’ claims” (Zegelstein v Faust, _AD3d_, 2020 NY Slip Op 00390, at *1-*2 [!51 Dept 2020][intemal citations omitted]).

Further, employing the doctrine of collateral estoppel, this court finds that these two previous decisions bar the claims in this malpractice suit. Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or
proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Telephone Co., 62 NY2d 494, 500 [1984]. “Collateral estoppel … is but a component of the broader doctrine of res judicata which holds
that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action ( Gra’!1atan Home Jnvs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). “