Sang Seok Na v Malik & Assoc., P.C. 2023 NY Slip Op 30831(U) March 20, 2023 Supreme Court, New York County Docket Number: Index No. 100962/2017 Judge: David B. Cohen is an example of the proverb “too many cooks spoil the broth.” Simply read through the history to see how this happens.
“This malpractice action arises from legal representation plaintiff received in a personal
injury action he commenced in 2003 against Greyhound Lines Inc. (Index no. 13453/03 [Sup Ct, Queens County]) (NYSCEF 137-139), which had the following procedural history, according to a decision on plaintiff’s motion to restore it to active status:
This action was stricken from the trial calendar on May 10, 2006. A motion to restore was filed on April 10, 2007 and subsequently withdrawn on October 16, 2007. In January 2008, plaintiff changed attorneys for the fourth time and retained the firm of Sapone &
Schietroma, P.C. By letter dated January 28, 2008, counsel for the defendant requested
responses to outstanding discovery and the rescheduling of plaintiff’s deposition and
physical examination. In response, plaintiff’s attorney, Paul Schietroma, indicated further discovery would be provided once his file was reconstructed. During the remainder of 2008, plaintiff made inquiries into retaining new counsel to pursue this action and an additional medical malpractice claim. In December 2008, the firm of Sapone & Schietroma, P.C. was dissolved and plaintiff determined that he would continue to be represented by Mr. Schietroma in this matter. It was not until May 2009 that Mr. Schietroma discovered that the case had been stricken from the calendar. An oral request made to defense counsel in June 2009 to consent to restoration of the case was refused.
Thereafter, the motion to restore was filed in March 2010, and was subsequently denied, on the ground that:
While counsel may have experienced uncertainty concerning his continued representation of plaintiff that was further complicated by the dissolution of his firm, it is clear that no diligent efforts were undertaken to determine the status of this case until May 2009. Outstanding discovery was never provided to the defendant. In addition, even after defendant’s refusal to consent to restore this matter, Mr. Schietroma waited until March 2010 to serve this motion. As a result, plaintiff has failed to demonstrate a reasonable excuse for the delay or rebut the presumption of abandonment. Moreover, since nine years have now elapsed since the accident occurred, the defendant would be prejudiced if this action were restored to the trial calendar.
( citations omitted).
In October 2011, the Appellate Division, Second Department upheld the dismissal of the
Greyhound action (88 AD3d 980 [2d Dept 2011]), and between June 2012 and December 2014, plaintiff commenced three legal malpractice actions in various state courts related to the dismissal, which are in issue here and discussed further (infra., II).
In April 2015, plaintiff signed a retainer agreement with the Malik defendants, by which
he retained them in connection with his pending legal malpractice actions (along with a medical malpractice case which is not relevant to this action), and they agreed to file opposition and/or a cross motion to two pending motions in the malpractice actions, as well as to “review entire file and research issues presented” (NYSCEF 85). Defendant Jamil is an attorney who worked for the Malik defendants on plaintiffs cases (NYSCEF 190). In July 2017, plaintiff, self-represented, commenced this action against defendants, asserting, among other things, claims of legal malpractice, fraud, fraudulent concealment, negligent misrepresentation, negligence, breach of fiduciary duty, and breach of contract (Doc No. 191).”
” In June 2012, plaintiff commenced a legal malpractice action against Sivin & Miller, LLP
(Firm No. 1), Sapone & Schietroma, P.C. (Firm No. 2), Schietroma, P.C. (Firm No. 3), and
Schietroma, individually. According to the justice presiding in the matter, plaintiff alleged that Firm No. 1 failed to prevent the Greyhound action from being stricken from the calendar and eventually dismissed, and that Firm Nos. 2 and 3 failed to inform him of the action’s status and to move timely to restore it (index no. 701527/13, NYSCEF 28).
Firm No. 1 moved for summary judgment in the action in October 2013, which plaintiff
did not oppose (id.). The motion was granted on the ground that plaintiffs malpractice claim was barred by the applicable statute of limitations, and plaintiffs claims against Firm No. 1 were thus severed and dismissed (id). It does not appear that plaintiff appealed this decision.
In February 2015, Firm Nos. 2 and 3 and Schietroma (collectively, the Schietroma
defendants) moved for summary dismissal of the complaint against them (id., NYSCEF 41). The motion was returnable in March 2015, and later adjourned to May 2015 (id., NYSCEF 56). In April 2015, plaintiff retained Malik and Malik P.C. as his attorneys (id., NYSCEF 57), and in June 2015, Malik submitted opposition to defendants’ summary judgment motion (id., NYSCEF 60). In September 2015, plaintiff discharged Malik as his attorney and elected to proceed prose (id., NYSCEF 65).
By decision and order dated September 17, 2015, the summary judgment motion was
granted as the Schietroma defendants demonstrated that plaintiff was unable to prove that he would have prevailed in the Greyhound action but for their alleged negligence, and plaintiff failed to raise a triable issue (id., NYSCEF 67). Plaintiff appealed the decision on his own (id., NYSCEF 72).
In July 2018, the Appellate Division, Second Department, affirmed the dismissal, finding
that plaintiff failed to raise a triable issue in his opposition papers as his arguments consisted “entirely of speculation and conclusory assertions.” (163 AD3d 597 [2d Dept 2018]).”