Alphas v Smith 2022 NY Slip Op 30722(U) March 7, 2022 Supreme Court, New York County Docket Number: Index No. 155790/2015 Judge: Lewis J. Lubell presents the situation in which both plaintiff and defendant file motions for summary judgment, each supported by experts. In the duel of the experts, the dual motions are both denied.
“By way of background, plaintiff1 commenced this action for legal malpractice with the filing of a summons and complaint, which was later amended (Amended Complaint).2
The Amended Complaint alleges the following. Plaintiff retained defendants to represent plaintiff, Alphas Company of NY, Inc., and Alphas Company, Inc. in several pending
actions. One of the pending actions was Daniel Kan’e Jr. et al. v The Alphas Company of New York, Inc. (underlying litigation), in which it was alleged that The Alphas Company
of NY, Inc. (Alphas NY) owed:!$11,450.00 for late payments to a certain Pension and Welfare Fund Fund). Subsequently, the Fund advised by letter (withdrawn letter) that it had determined that Alphas NY had ceased contributions to the Fund and thus effected a complete withdrawal from the Fund, triggering a withdrawal liability of $ 983,579.74 to be paid in a certain number of installments (withdrawal liability). The withdrawal letter Plaintiff claims that defendants did not answer the amended complaint in the underlying litigation and did not oppose the motion for default judgment and that a default judgment was entered on April 30, 2013 in the total amount of $1,209,419.35. Plaintiff also claims that, upon learning of the default judgment, plaintiff retained a new attorney and in July 2013 moved to vacate the defaultj udgment. Plaintiff alleges that defendants’ malpractice led to a series of business and financial losses whereby he suffered damages of approximately $4,000,000.00. Plaintiffs purported damages included loss of his license to conduct business; loss of income; loss of loans to Alphas NY; a lower credit score; attorneys’ fees to move to vacate the judgment incurred as a result of the default judgment regarding the withdrawal liability; and damages as a result of plaintiff being forced to file for bankruptcy. ”
“In order to establish a claim for legal malpractice, a plaintiff must demonstrate that an attorney owed a duty to plaintiff (see Genesis Merchant Partners, L.P. v Gilbride, Tusa,
Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018]), that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession, that the plaintiff would have prevailed on the merits but for the attorney’s negligence, and that the attorney’s negligence proximately caused actual and
ascertainable damages (see Kivo v Louis F. Burke, P.e., 187 AD3d 503 [1st Dept 2020]). Here, material issues of fact abound. Most critically, there is a material issue of fact as to
whether plaintiff retained defendants to respond to the withdrawal letter.s Additionally, there is a material issue of fact as to whether defendants’ negligence, assuming they were
negligent, was a proximate cause of the withdrawal liability. Plaintiff’s experts opine that it was; defendants’ expert opines that it was not. Conflicting expert opinions present
material issues of fact and credibility that are inappropriately resolved on a motion for summary judgment (see Severino v Weller, 148 AD3d 272,275 [1st Dept 2017]).”‘