In Thacker v Constantine Cannon, LLP 2023 NY Slip Op 32376(U) July 14, 2023
Supreme Court, New York County Docket Number: Index No. 155930/2018
Judge: James d’Auguste it is too early for the court to decide who did what.
Plaintiff was locked out in a landlord-tenant dispute. She hired third-party defendants and then hired defendants, and all together it is not yet determined who did what. What is clear is that third-party defendants now represent plaintiff against defendants.
” In December 2014, plaintiff retained third-party defendants to represent her in an illegal eviction action against her former landlord. In January 2015, Constantine Cannon began representing plaintiff pro bona through the Volunteer Lawyer for the Arts program with third party defendants Jarvis and Maher serving as “legal consultants.” Specifically, Constantine Cannon’s retainer agreement with plaintiff states “[Constantine Cannon] agrees to retain Ms. Jarvis and Mr. Maher as legal consultants for the purpose of advising it in this matter, and to share any attorney’s fees with them per the terms of this agreement.” (Ex. C to Third-Party Summons and Complaint, NYSCEF Doc. No. 203). As a result, plaintiff allegedly terminated her previous retainer agreement with third-party defendants.
Constantine Cannon apparently failed to properly serve plaintiff’s former landlord, and,
following a Traverse Hearing on August 11, 2015, the court dismissed plaintiff’s action.
Plaintiff appealed, and the Second Department affirmed dismissal of the underlying action. On June 25, 2018, plaintiff (who is represented in the current action by third-party defendants) commenced a legal malpractice and breach of contract action against Constantine Cannon for failure to effect proper service of the summons and complaint in the illegal eviction action. On February 9, 2022, Constantine Cannon filed a third-party summons and complaint, alleging common law indemnification and contribution against third-party defendants in the underlying legal malpractice action. Constantine Cannon alleges that Jarvis and Maher were substantially involved in the representation for the illegal eviction action, including providing address information for the former landlord and directing motion/appellate strategy, therefore, Constantine Cannon is entitled to seek indemnification and contribution against them. Notably, there is no dispute that Jarvis and Maher were communicating with Constantine Cannon about
plaintiff’s illegal eviction action. Instead, they argue that their involvement was limited, and, therefore, their participation would not expose them to liability for contribution or
indemnification. “[I]t is well-settled that an attorney sued for malpractice may bring a third-party complaint seeking indemnity or contribution against an attorney, whether retained subsequently, concurrently, or independently, whose negligence has contributed to or aggravated the plaintiffs damages” Bolton v Weil, Gotshal & Manges LLP, 9 Misc 3d 1105(A) [Sup Ct 2005] (internal citations omitted). Moreover, “First Department held that allegations in a third-party complaint that ‘third-party defendant attorneys directed the legal handling of matters in which third-party plaintiff law firm represented defendants, and, accordingly, shared responsibility for any loss defendants may have incurred in those matters by reason of legal malpractice, sufficiently stated
a cause of action for contribution”‘ id. at 3, (citing Patterson, Belknap, Webb & Tyler LLP v Bond St. Assoc., Ltd., 266 AD2d 125, 125 [1st Dept 1999]; see also Schauer v Joyce, 54 NY2d 1, 6 [1981] [holding that allegation that another attorney “contributed to or aggravated [plaintiffs] injuries” sufficiently stated contribution claim]. As discussed in a previous order of this Court (Ling-Cohan, J.) dated October 7, 2019, third-party defendants’ status during this representation is unclear; the parties have not performed sufficient factual development to determine if Maher and Jarvis assisted Constantine Cannon as “co-counsel, … legal consultant[s], or out of professional courtesy.” (Decision and Order, NYSCEF Doc. No. 70). 1 Third-party defendants have not shown that, even if they served as legal consultants or merely out of professional courtesy, Constantine Cannon could not seek indemnification and contribution against them in a legal malpractice action. Discovery is ongoing, and third-party defendants have not sufficiently demonstrated that they are free from negligence to warrant
dismissal of the two causes of action at this juncture.”