Braig v Baker 2024 NY Slip Op 51438(U) Decided on October 22, 2024 Supreme Court, Westchester County Giacomo, J. is an interesting case in which a $ 1M + settlement was obtained, but two sets of attorneys shied away from continuing the case against an employer of the driver. Attorney 2 seeks to blame Attorney 1 for shortcomings in discovery. The question of whether Attorney 2 could have fixed the mistakes of attorney 1 did not arise.
“Plaintiffs allege Baker committed legal malpractice in the representation of plaintiffs in the underlying action in that Baker voluntarily discontinued the underlying action against defendant JAG without plaintiffs’ knowledge, permission or consent, relegating the plaintiffs with only a possibility of recovery of the insurance coverage of $1.3 million underwritten by Liberty Mutual Insurance Company, instead of recovery against the owner of the vehicle, JAG. Plaintiffs claim that from the time Baker’s representation began through the conclusion of the case, it failed to discuss, disclose or otherwise inform them of its decisions which were detrimental to the underlying case and failed to prepare them for their depositions resulting in pre-trial testimony that was deficient, devastating and detrimental to their case. Plaintiffs also allege that Baker failed to properly prepare for the arbitration proceeding in their case which included failing to retain an accident reconstructionist, failing to have up to date medical records and reports available for the arbitrator, and failing to retain an expert with respect to alcohol consumption to refute the claim of plaintiff Mary Braig’s alcohol impairment in the underlying case. The complaint asserts that the arbitrator awarded only $225,000.00 to plaintiffs as a result of Baker’s conduct. In the complaint, plaintiffs seek damages in the amount of five million dollars.
By decision and order dated March 27, 2023, this Court denied Baker’s motion to dismiss and held that plaintiffs stated a cause of action to recover damages for legal malpractice in their amended complaint. Baker filed its answer on April 6, 2023 and filed a third-party summons and complaint on June 20, 2024.
In the third-party complaint, Baker alleges that the legal malpractice of Huston is the proximate cause of the plaintiffs’ alleged monetary damages and the third-party complaint asserts claims for common-law indemnification and for contribution. The third party complaint alleges that plaintiffs retained Huston to represent them in the initial underlying motor vehicle action. Huston acted as the attorney for plaintiffs between May 19, 2017 and September 12, 2018 and had commenced an action on behalf of plaintiffs. Baker was substituted as counsel on or about September 12, 2018. Baker alleges that Huston failed to preserve critical evidence, failed to [*2]engage appropriate or necessary experts, failed to conduct appropriate discovery and otherwise failed to perform its duties as counsel for plaintiffs. For instance, Baker claims that in May 2017, defendant in the underlying action had an expert examine the 2015 BMW. Defendant then returned the leased BMW to the dealership in June 2018. However, Huston failed to have an expert inspect the BMW prior to that time and failed to otherwise preserve any evidence related to the BMW including digital data. According to Baker, this preservation and inspection of the BMW was essential and would allow an accident reconstruction expert to testify on plaintiffs’ behalf. However, due to Huston’s alleged inactions and negligence, the BMW subsequently became inaccessible and unavailable. These actions occurred prior to when Baker was substituted as counsel.”
“The Court finds that Baker failed to state a cause of action against Huston for common-law indemnification, as plaintiffs in their underlying complaint “did not seek to hold [Baker] responsible for another’s wrong,” such as any alleged failure to preserve the 2015 BMW, but “directly charged [Baker] with negligence . . .” Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724, 726 (2d Dept 2014) (“The Supreme Court also properly determined that the GGP&N defendants failed to state a cause of action against the Marcus attorneys for common-law indemnification, since the Alvas did not seek to hold the GGP&N defendants responsible for another’s wrong, but directly charged the GGP&N defendants with negligence in allowing the statute of limitations to expire in connection with the claims based on Atzl’s November 2005 conduct”).
Moreover, the claims against Baker in the underlying legal malpractice claim are based upon specific actions taken by Baker, including failing to prepare plaintiffs for depositions, discontinuing the action against JAG without consulting plaintiffs and failing to retain an alcohol consumption expert. Thus, Baker’s role in causing plaintiffs’ injuries, if any, would not be “solely passive.” See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d at 958 (“Thus, the documentary evidence submitted by M & S in support of its motion [to dismiss the cause of action for common-law indemnification in the third-party complaint] conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious”).”
“Here, construing the third-party complaint liberally, accepting the facts alleged in the complaint as true, and according third-party plaintiff the benefit of every possible inference, Baker has stated a cause of action to recover for contribution. See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d 956, 959 (2d Dept 2014)( “defendants/third-party plaintiffs properly stated a cause of action [for contribution] alleging that [third-party defendant’s] legal malpractice contributed to the plaintiff’s damages, and documentary evidence did not conclusively establish a complete defense to that cause of action”); see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589. As set forth in the examples above, including the failure to preserve the 2015 BMW, the third-party complaint alleges sufficient facts which, if true, would establish that any legal malpractice committed by Huston proximately caused plaintiffs to sustain actual damages, making Huston liable to Baker for contribution. Whether the inadequate arbitrator’s award, among other damages alleged by plaintiffs, was result of either Baker and/or Huston’s negligence is a question of fact. As a result, the third-party complaint sufficiently states a cause of action for contribution.”