Kleinberg v Pellegrini & Assoc., LLC 2023 NY Slip Op 31196(U) April 3, 2023
Supreme Court, New York County Docket Number: Index No. 154718/2014
Judge: Shlomo S. Hagler is an example of how an unopposed motion for summary judgment will almost always be the end of the case. Here, the legal malpractice claim was that certain medical and factual issues were not brought up at the underlying trial stage. However, there was nothing for the court to rely upon in this summary judgment setting.
“In this action alleging legal malpractice, breach of fiduciary duty and breach of contract, defendants Pellegrini & Associates, LLC and Frank L. Pellegrini ( collectively, “Pellegrini” or “defendants”) move for summary judgment pursuant to CPLR § 3212 dismissing all the claims asserted by plaintiff David Kleinberg (“Kleinberg”). In support of their motion, defendants submit the Affidavit of Christopher T. McGrath, Esq., sworn to on November 24, 2020 (NYSCEF Doc. No. 89) (the “McGrath Affidavit”), attesting that the legal representation rendered by Pellegrini in the subject underlying action was not a departure from the requisite standard of care, and the affidavit of Frank L. Pellegrini, sworn to on November 23, 2020 (NYSCEF Doc. No. 88) (the “Pellegrini Affidavit”). Kleinberg has failed to submit opposition to the subject motion.”
“This is a legal malpractice action commenced by Kleinberg in connection with
Pellegrini’s representation of Kleinberg in an underlying personal injury action. On or about November 1, 2004, Kleinberg commenced an action against the driver and owner of a motor vehicle involved in a motor vehicle accident (the “Underlying Action”). 1 Pellegrini was retained by Kleinberg in the Underlying Action, after the note of issue was filed and after the court (Sup Ct Westchester County, Hon. Joan B. Lefkowitz, J.S.C.) granted Kleinberg’s motion for summary judgment on liability. On March 18, 2011, the jury rendered a verdict in favor of the underlying defendants and awarded Kleinberg no damages (Pellegrini Affidavit, ,r 138 [NYSCEF Doc. No. 88]; Underlying Trial Transcript Part 2, at 545-547 [NYSCEF Doc. No. 80])
Essentially plaintiff is alleging that Pellegrini committed legal malpractice during the trial stage of the Underlying Action by failing to successfully undertake to have certain medical evidence and lay witness evidence admitted at trial and to “un bifurcate” the trial in order to introduce evidence on liability.2 Kleinberg alleges that “but for” the negligence of defendants, “plaintiff would have been able to demonstrate that he suffered serious physical injury, traumatic brain injury, permanent loss of the quality and quantity of vision, permanent nerve injury, injury to cerebral nerves with sequelae, along with other injuries and that the operator of the truck was negligent, and proximately injured him.” Plaintiff further alleges he “would have been able to
demonstrate that the physical, cognitive and emotional injuries were proximately caused by the negligent operation by LK Comstock & Company Inc., and its driver, and that such negligence damaged plaintiff (Complaint 1137-39 [NYSCEF Doc. No. 44]).”
“The Pellegrini defendants have met their prima facie burden demonstrating that they did not depart from the requisite standard of care (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015] citing Dombrowski v Bulson, 19 NY3d 347 [2012]). In support, Pellegrini proffers the McGrath Affidavit and the Pellegrini Affidavit. The record reflects that Pellegrini in fact introduced evidence during the trial of the Underlying Action that plaintiff claims were omitted at trial. In addition, notwithstanding plaintiffs claims, although the underlying trial court excluded the SPECT scan from evidence, the record reflects that Pellegrini provided timely disclosure of such scan and made efforts to seek disclosure of the scan at trial. Plaintiffs allegations that Pellegrini departed from the standard of care in failing to introduce evidence of certain of plaintiffs injuries and evidence of lost income, or call lay
witnesses at trial have no merit. “[A]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice” ( Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292, 293 [1 st Dept 2008]; see Dweck Law Firm v Mann, 283 AD2d 292,293 [1st Dept 2001] [internal citations omitted] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice, so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Plaintiffs claim that Pellegrini was negligent in failing to re-open the issue of liability at trial is likewise without merit. The issue of liability would not generally be permitted at a damages only trial (McGrath Affidavit, ,r,r 7-9).”