Reem Contr. v Altschul & Altshcul 2022 NY Slip Op 34430(U) December 30, 2022 Supreme Court, New York County Docket Number: Index No. 104202/2011 Judge: Kelly A. O’Neill Levy discusses two interesting points: when an expert is needed in a summary judgment motion on a legal malpractice case and whether an account stated claim can proceed in a legal malpractice counterclaim/defense setting. Today, the expert is discussed.
This is a legal malpractice action brought by plaintiffs Reem Contracting Corp. (Reem
Contracting), Jona Szapiro (Szapiro ), Reem Plumbing and Heating Corp. (Reem Plumbing), and the Estate of Steven Stein (Stein) (collectively, plaintiffs) against defendants Altschul & Altschul, Mark Altschul, Esq. (Altschul), and Cory Dworken, Esq. (Dworken) (collectively, defendants). Defendants represented plaintiffs in a federal action seeking recovery under section 515 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 USC§ 1145 (the underlying action). Defendants have asserted a counterclaim for account stated. Defendants move, pursuant to CPLR 3212, for summary judgment on their account stated counterclaim.”
In 2004, plaintiffs were named as defendants in the underlying action, captioned Trustees of Plumbers Local Union No. 1 Welfare Fund v Reem Plumbing & Heating Corp., 04-CV-4698 (CBA) (ED NY) (id., ,-i 5). The trustees (the Trustees) alleged that Reem Plumbing and Reem Contracting were contractually obligated to contribute to certain union benefit funds (the Funds), as required by four collective bargaining agreements between the Association of Contracting Plumbers of the City of New York and Local Union No. 1 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (id.). The Trustees conducted an audit for the period of January 1, 2002 through December 31, 2004, believing that there had been a significant shortfall in contributions (id., ,-i 6). The Trustees sought unpaid contributions, interest, liquidated damages, and attorney’s fees (id., ,-i 8). They also sought to hold Stein and Szapiro personally liable as fiduciaries of the Funds as defined under ERISA (id.). Altschul & Altschul represented plaintiffs in the underlying
action (id., ,-i 9). Altschul and Dworken were tasked with defending plaintiffs (id., ,-i 10).”
In the case below, ” By memorandum and order dated March 31, 2009, Judge Amon granted the Trustees’ motion for summary judgment, finding that Reem Plumbing was obligated to make contributions to the Funds during the audit period (2009 WL 10700668, *8, 2009 US Dist LEXIS 154698, *25). Judge Amon further held that, since plaintiffs admitted that Reem Plumbing and Reem Contracting were alter egos, Reem Contracting was bound to the same collective bargaining agreements as Reem Plumbing (id.). Judge Amon further held that Stein and Szapiro were fiduciaries of the Funds under ERISA, and that they were personally liable given their exclusive
control of the entities (2009 WL 10700668, * 10, 2009 US Dist LEXIS 154698, * 32). Finally, Judge Amon awarded damages against plaintiffs, jointly and severally, in the amount of $1,337,707.63 (2009 WL 10700668, *15, 2009 US Dist LEXIS 154698, *44). In doing so, Judge Amon determined the amount of unpaid contributions based solely on a Marshall & Moss audit of Reem Plumbing and Reem Contracting (2009 WL 10700668, * 13, 2009 US Dist LEXIS 154698, * 40-41 ).”
“On a plaintiff’s motion for summary judgment in a legal malpractice case, the plaintiff
“will be entitled to summary judgment in a case where there is no conflict at all in the evidence, the defendant’s conduct fell below any permissible standard of due care, and the plaintiff’s conduct was not really involved” (Selletti v Liotti, 22 AD3d 739, 740 [2d Dept 2005]; see also Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 514 [2d Dept 1990], appeal dismissed 77 NY2d 940 [ 1991 ]). On the other hand, “[i]n order for a defendant to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the three essential elements of legal malpractice” (Walker v Glotzer, 79 AD3d 737, 738 [2d Dept 2010]).
‘”[U]nless the ordinary experience of the fact-finder provides sufficient basis for judging
the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care, expert testimony will be necessary to establish that the attorney breached a standard of professional care and skill”‘ (Estate ofGinor v Landsberg, 960 F Supp 661, 672 [SD NY 1996], affd 159 F3d 1346 [2d Cir 1998], quoting Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [2d Dept 1993]; accord Estate ofNevelson v Carro, Spanbock, Kaster & Cuijfo, 259 AD2d 282,283 [1st Dept 1999]).
Here, plaintiffs have failed to meet their burden on summary judgment as to their legal
malpractice claim. The court finds that expert testimony is necessary to establish that the adequacy of defendants’ legal services fell below the standard of care, as acknowledged by plaintiffs. It is not within the ordinary jurors’ experience to evaluate whether defendants failed to develop appropriate evidence, failed to secure a proper expert report in a timely fashion, failed to properly oppose the Trustees’ motion for summary judgment, and failed to advise their clients of the nature of the claims made against them. However, as argued by defendants, plaintiffs submit an unsworn expert report from Bennett J. Wasserman, Esq., which opines that defendants’ conduct fell below the standard of care in the underlying action (NYSCEF Doc No. 286, Wasserman report at 21-34). An unsworn report from an expert does not constitute competent evidence to support a motion for summary judgment (see Grasso v Angerami, 79
NY2d 813, 814-815 ). Plaintiffs did not attempt to cure this defect in their reply. While plaintiffs argue that defendants did not submit their own expert affidavit or report outlining the standard of care, this does not eliminate the requirement that plaintiffs make a prima facie showing on their legal malpractice claim by tendering evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557,562  [movant on summary judgment “must establish his cause of action … sufficiently to warrant the court as a matter of law in directing judgment in his favor … and he must do so by tender of evidentiary proof in admissible form”] [internal quotation marks and citation omitted]).”