Aaglane v Sami 2023 NY Slip Op 30636(U) March 3, 2023 Supreme Court, New York County Docket Number: Index No. 151262/2019 Judge: Mary V. Rosado is an interesting variant on the more usual case where Plaintiff is being sued for fees and brings a legal malpractice case against the attorney. In that setting, collateral estoppel of res judicata issues arise. Here, where the attorney seeks to join a case against a different party for legal fees the Court denies the request.

“This case was commenced on February 5, 2019 and arises out of Defendant’s alleged
malpractice during the course of her representation of Plaintiff in her divorce action against nonparty Khitri (NYSCEF Doc. 1). On January 8, 2021, Defendant moved for summary judgment dismissing Plaintiffs Complaint (NYSCEF Doc. 9 or “Mot. Seq. 001 “) Plaintiff cross-moved seeking to compel Defendant to respond to certain discovery demands (NYSCEF Doc. 11 ).”

“Defendant makes the instant motion pursuant to CPLR § 602(a) (NYSCEF Docs. 82-83).
CPLR § 602(a) provides “when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue … and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Where cases involve different facts, witnesses, claims, injuries, and defendants “individual issues predominate … so as to preclude the direction of a joint trial” (Gillard v Reid, 145 AD3d 446 [1st Dept 2016] quoting Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 200 I]). Moreover, where actions are at different procedural postures a motion for a joint trial should not be granted (Maurer v Maurer, 96 AD3d 417,417 [1st Dept 2012]). Further, where two
actions involve different issues and disparate legal theories, it has been held there is a risk of confusing and “rendering the litigation unwieldy” (Ka/adze v Ocean Park Acquisition, L.P., 203 AD3d 1151 [2d Dept 2022] citing Gillard at 446).

The instant action is a legal malpractice action by Plaintiff against Defendant, her former lawyer in a matrimonial action (NYSCEF Doc. 1). The factual issues have to do with Defendant’s alleged abandonment of Plaintiff’s case; alleged loss of critical documents belonging to Plaintiff, Defendant’s alleged breach of confidentiality, Defendant’s prolonged absence from the country on the eve of trial, Defendant’s alleged failure to investigate key assets in the matrimonial action, Defendant’s alleged misappropriation of client funds, Defendant’s alleged failure to provide Plaintiff with a statement of client’s rights and responsibilities, and Defendant’s alleged lack of
expertise and experience with contested divorce cases (NYSCEF Doc. 1 at 116-42). On the other hand, the case Defendant seeks to join for trial involves $5,000 in allegedly unpaid attorneys’ fees which Khitri allegedly agreed to pay Defendant in an open court stipulation in the matrimonial action.

Here, the legal theories and issues are wholly separate. Moreover, the only party in
common in the two actions is Defendant. Khitri is not a party to this action, and Plaintiff is not a party to the Civil Court action. Further, the Civil Court action is far more simple and seeks damages in a far lesser sum than the instant legal malpractice action, and for that reason is in Civil Court which is the designated forum for expedited relief in disputes over relatively minor sums. Here, the parties have made multiple discovery motions and it appears depositions have not even begun. The parties have failed to enter into any discovery orders since their preliminary conference order dated November 18, 2021. As such, the procedural postures of the two actions are completely
different. These factors militate towards denying Defendant’s motion.”