Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30733(U) March 9, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley and Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30734(U) March 10, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley, (same caption, different defendants) are puzzling, but ultimately turn on procedural defects in this pro-se litigation. Why the failure to present proof of “no texting” did not state a cause of action seems lost in the procedural morrass.

On July 27, 2022, plaintiff filed this action against Gjoni Law, P.C., Gencian Gjoni, Esq.,
Haicken Law, and Matthew Haicken, Esq., (“Defendants”) for alleged legal malpractice arising out of the Defendants’ prosecution of plaintiffs underlying action to recover for personal injuries sustained when plaintiffs bicycle collided with a motor vehicle. Plaintiff hired Defendant Matthew Haicken for plaintiffs personal injury action against the motorist. During discovery in the underlying action, the motorist alleged that plaintiff was inattentive and was texting on his phone prior to the collision, however plaintiff claims he provided his attorney, Defendant Haicken, with time-stamped evidence that he was not texting at that time. As a result, upon a motion for summary judgment on liability, the Court determined that plaintiff established that the motorist had violated
local traffic laws, however, plaintiff failed to establish he was free from comparative negligence in this accident. Therefore, the Court granted plaintiffs summary judgment motion on the issue of liability and ordered a trial on the questions of”[c]omparative fault of the plaintiff, if any.”

Plaintiff alleges that after the issuance of the summary judgment order, Defendant Haicken referred the underlying personal injury case to Defendant Gjoni to handle the trial on the issue of comparative liability. Plaintiff asserts, inter alia, that he informed Defendant Gjoni that he had phone records that would refute the defense claim that plaintiff was using his phone at the time of the collision.

At the personal injury trial, plaintiff alleges that the attorneys for the motorist presented witnesses and evidence to suggest that plaintiff was texting when the accident occurred in order to prove their affirmative defense of comparative liability. Plaintiff claims that his attorney, Gjoni questioned the driver of the motor vehicle, and challenged his credibility, and then Gjoni rested the plaintiffs case without calling plaintiff or the responding police to testify or offer the phone records or photographic evidence. After deliberation, the jury determined unanimously that plaintiff was negligent and 99% responsible for the accident. Plaintiff also alleges that Gjoni
advised plaintiff that he had half an hour to decide whether to accept a $2,500.00 settlement offer, and Gjoni did not advise plaintiff as to alternative options available to him. Subsequently at the trial on damages, plaintiff alleges, again that his attorney, Gjoni called no medical expert, and the jury unanimously awarded no damages.”

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This Court finds that plaintiff’s complaint and the amended complaint both fail to assert
facts in support of any element of the negligence and breach of fiduciary claims. Plaintiff did not establish or demonstrate the negligence of counsel, proximate cause of their loss, and proof of actual damages. On the contrary, plaintiff relies on allegations and inferences which do not provide for an enforceable right ofrecovery. Id at 29 N.Y.3d 137, 142. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court that plaintiff would have achieved a better outcome at trial.

On a motion brought under CPLR §3211 (a)(l) dismissal is warranted when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Allegations that are “bare legal conclusions” or that are “inherently incredible or flatly contradicted by documentary evidence” are not sufficient to withstand a motion to dismiss.” RTW Retailwinds, Inc. v. Colucci & Umans, No. 150794/20, 2023 WL 1974320 (N.Y. App. Div. Feb. 14, 2023). Here, as evidenced by NYSCEF Doc. No. 11, plaintiff entered into a retainer agreement with the Haicken Defendants, which established that the Haicken Defendants had the right to associate and allow as trial counsel, Defendants Gjoni.

Plaintiff has not demonstrated how the Haicken Defendants, by assigning trial counsel,
caused plaintiff’s alleged damages. Pursuant to a motion brought under CPLR §3013 “statements in pleadings shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Here, plaintiff has coupled the defendants in his complaint without ascertainable causation. More specifically, the complaint lacks facts to support a showing that a different trial counsel would have achieved a better outcome.”

(from the second decision) “This Court finds that the plaintiff’s complaint and the Amended complaint both fail to assert facts in support of any element of the negligent and breach of fiduciary claims. The defendant has demonstrated by competent evidence, and attached as Exhibits A and C of the motion (seq. no. 001), as proof of plaintiff’s duplicative filings of the complaint, both filed by counsel and by prose plaintiff. (See, NYSCEF Doc. No. 5 and 7). Here, plaintiff has failed to establish the negligence of counsel, proximate cause of his loss, and proof of actual damages. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court any alternative manner by which plaintiff would have been successful in winning his case.
A court has broad discretion in considering whether to dismiss an action, pursuant to CP LR §3211 (a)(4), on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982). Plaintiff’s complaints only differ in regard to the signature lines on the submitted complaints. The first complaint was signed by plaintiff’s counsel, and the later dated complaint was signed by pro se plaintiff. As such, both the complaint and the Amended complaint must be dismissed because plaintiff has impermissibly filed two complaints
addressing two very same issues. (See, NYSCEF Doc. No. 5-7).In opposition, the plaintiff does not refute the arguments of duplicate filings, or state the status of those cases.”