Beer v. Florsheim

Appellate Division of the Supreme Court of New York

Beer v. Florsheim

96 A.D.2d 485, 465 N.Y.S.2d 196, 1983 N.Y. App. Div. LEXIS 18989

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 21, 1983

StatusPublished

Cited by5 cases

This text of 96 A.D.2d 485 (Beer v. Florsheim) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beer v. Florsheim, 96 A.D.2d 485, 465 N.Y.S.2d 196, 1983 N.Y. App. Div. LEXIS 18989 (N.Y. Ct. App. 1983).

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Opinions

— Order of the Supreme Court, New York County (Bernard Nadel, J.), entered on June 14, 1982, which denied the motion by defendant Robert Florsheim to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7) is affirmed, with costs and disbursements. The instant matter involves a claim of legal malpractice. The complaint alleges that in January of 1970 plaintiffs retained defendants as attorneys to represent them in an action against the City of New York. Plaintiff Mary Beer allegedly sustained personal injuries as the result of a sidewalk fall on Seventh Avenue in Manhattan which occurred on December 23, 1969. Defendant Robert Florsheim thereafter filed a timely notice of claim and accompanied the plaintiffs to a hearing at the comptroller’s office. However, when plaintiffs subsequently made numerous inquiries of defendant as to the status of their case, he purportedly failed to provide them with any information. In March of 1980 defendant supposedly notified plaintiffs that he had procured a settlement offer from the city in the sum of $4,500 and that a release would be forwarded to Mary Beer for her signature. According to plaintiffs, the release was duly executed and returned to defendant, but they never received any money from defendant nor were they able to obtain a response from him regarding the settlement. Plaintiffs ultimately contacted the comptroller’s office to ascertain the status of their action. At this time they were advised that no release form had ever been received and, indeed, that no action was pending and that no settlement agreement had ever been reached. Plaintiff thereupon commenced this malpractice action against defendants, charging that as a consequence of defendant Florsheim’s failure to institute the suit for which he had been retained, plaintiffs had been deprived of their legal right of action and were now barred by the Statute of Limitations from proceeding further upon their claim against the City of New York. They also asserted that defendants had acted with fraudulent purpose, malice and wrongful intent and that as a result of the neglect and omission of the defendants, plaintiffs were divested of their right to a recovery and determination upon the merits of their contemplated action against the city. By notice of motion dated April 23,1982, defendant Florsheim moved for an order dismissing the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7). It was defendant’s position that he did, in fact, bring suit on behalf of plaintiffs against the City of New York and that such action is pending in the Civil Court under index No. 99382/70. Defendant also contended that since he is no longer qualified to practice law in the State of New York, he had on several occasions and without success asked plaintiffs’ counsel to make appropriate arrangements to have the file transferred to another lawyer for the purpose of continuing the case against the city. Attached to his motion papers was a copy of the summons served upon the City of New York in June of 1970, a notice of [486]*486appearance by the city in connection with that matter and the city’s demand for a bill of particulars. In opposition to defendant’s motion to dismiss, plaintiff Mary Beer asserted that although the suit may have been commenced, no further activity had apparently ever taken place, thus indicating defendant’s negligence in failing to exercise proper care in representing plaintiffs. She also argued that a lawsuit which has been pending for so many years is certainly dead. Moreover, plaintiffs’ attorney submitted an affirmation, claiming that defendant had abandoned the case against the city without the knowledge, consent or authorization of his clients. Included with plaintiffs’ papers was a copy of defendant’s letter directing plaintiffs to execute the release, as well as a copy of the executed release. Defendant thereafter interposed a reply in which he stated that since the documentary evidence establishes that a suit was instituted against the City of New York, the complaint against him, which is based on a claim that he permitted the Statute of Limitations to lapse, must be dismissed. Special Term, in denying the motion to dismiss, concluded that: “A motion under CPLR 3211 (7) may not succeed if on reading the complaint any cause of action can be made out. (Guggenheimer v. Ginzburg, 43 N.Y.2d 268). The complaint in the instant action alleges that the defendant committed fraud, deceit, misrepresentation, malpractice, negligence, carelessness and improper actions in the handling of the plaintiffs’ claim against the City of New York for injuries sustained on December 23, 1969. Proof by the defendants that an action was instituted against the City of New York in 1970 is insufficient to warrant dismissal of the plaintiffs’ complaint pursuant to CPLR 3211 (a) (1) and (7).” We agree with the decision by Special Term. In Guggenheimer v Ginzburg (43 NY2d 268, 275), the Court of Appeals, in discussing the issue of whether a particular complaint is sufficient, declared that “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail”. In that regard, plaintiffs’ complaint does not merely consist of conclusory allegations. While the record reveals that defendant filed a notice of claim and commenced suit against the City of New York, no further action appears to have been taken by defendant on plaintiffs’ behalf notwithstanding repeated requests for information made by his clients. The fact that defendant was suspended from the practice of law on May 17, 1979 and, thereafter disbarred, effective November 3, 1980, is beside the point. He may have been precluded from prosecuting the case subsequent to May 17,1979 but that does not explain his lack of activity prior thereto. Moreover, defendant not only failed to take affirmative steps to prosecute plaintiffs’ case, he falsely represented to them that he had obtained a settlement of their claim. There is documentary evidence to support plaintiffs’ assertion to that effect. Whether or not the action against the city is still viable after all these years goes to the merits of plaintiffs’ cause of action. Similarly, the amount of plaintiffs’ loss, if any, caused by defendant’s purported malpractice is significant in assessing damages. In neither event is dismissal of the complaint warranted. An attorney is liable “if it can be proved that his conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession” (Grago v Robertson, 49 AD2d 645, 646). The complaint clearly sets forth a cause of action that defendant did not exercise an ordinary and reasonable degree of care and skill with respect to plaintiffs’ suit against the City of New York. Accordingly, Special Term properly denied defendant’s motion to dismiss. Concur — Murphy, P. J., Sullivan and Milonas, JJ.; Silver-man and Kassal, JJ., each dissent in a separate memorandum.

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— Order of the Supreme Court, New York County (Bernard Nadel, J.), entered on June 14, 1982, which denied the motion by defendant Robert Florsheim to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7) is affirmed, with costs and disbursements. The instant matter involves a claim of legal malpractice. The complaint alleges that in January of 1970 plaintiffs retained defendants as attorneys to represent them in an action against the City of New York. Plaintiff Mary Beer allegedly sustained personal injuries as the result of a sidewalk fall on Seventh Avenue in Manhattan which occurred on December 23, 1969. Defendant Robert Florsheim thereafter filed a timely notice of claim and accompanied the plaintiffs to a hearing at the comptroller’s office. However, when plaintiffs subsequently made numerous inquiries of defendant as to the status of their case, he purportedly failed to provide them with any information. In March of 1980 defendant supposedly notified plaintiffs that he had procured a settlement offer from the city in the sum of $4,500 and that a release would be forwarded to Mary Beer for her signature. According to plaintiffs, the release was duly executed and returned to defendant, but they never received any money from defendant nor were they able to obtain a response from him regarding the settlement. Plaintiffs ultimately contacted the comptroller’s office to ascertain the status of their action. At this time they were advised that no release form had ever been received and, indeed, that no action was pending and that no settlement agreement had ever been reached. Plaintiff thereupon commenced this malpractice action against defendants, charging that as a consequence of defendant Florsheim’s failure to institute the suit for which he had been retained, plaintiffs had been deprived of their legal right of action and were now barred by the Statute of Limitations from proceeding further upon their claim against the City of New York. They also asserted that defendants had acted with fraudulent purpose, malice and wrongful intent and that as a result of the neglect and omission of the defendants, plaintiffs were divested of their right to a recovery and determination upon the merits of their contemplated action against the city. By notice of motion dated April 23,1982, defendant Florsheim moved for an order dismissing the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7). It was defendant’s position that he did, in fact, bring suit on behalf of plaintiffs against the City of New York and that such action is pending in the Civil Court under index No. 99382/70. Defendant also contended that since he is no longer qualified to practice law in the State of New York, he had on several occasions and without success asked plaintiffs’ counsel to make appropriate arrangements to have the file transferred to another lawyer for the purpose of continuing the case against the city. Attached to his motion papers was a copy of the summons served upon the City of New York in June of 1970, a notice of [486]*486appearance by the city in connection with that matter and the city’s demand for a bill of particulars. In opposition to defendant’s motion to dismiss, plaintiff Mary Beer asserted that although the suit may have been commenced, no further activity had apparently ever taken place, thus indicating defendant’s negligence in failing to exercise proper care in representing plaintiffs. She also argued that a lawsuit which has been pending for so many years is certainly dead. Moreover, plaintiffs’ attorney submitted an affirmation, claiming that defendant had abandoned the case against the city without the knowledge, consent or authorization of his clients. Included with plaintiffs’ papers was a copy of defendant’s letter directing plaintiffs to execute the release, as well as a copy of the executed release. Defendant thereafter interposed a reply in which he stated that since the documentary evidence establishes that a suit was instituted against the City of New York, the complaint against him, which is based on a claim that he permitted the Statute of Limitations to lapse, must be dismissed. Special Term, in denying the motion to dismiss, concluded that: “A motion under CPLR 3211 (7) may not succeed if on reading the complaint any cause of action can be made out. (Guggenheimer v. Ginzburg, 43 N.Y.2d 268). The complaint in the instant action alleges that the defendant committed fraud, deceit, misrepresentation, malpractice, negligence, carelessness and improper actions in the handling of the plaintiffs’ claim against the City of New York for injuries sustained on December 23, 1969. Proof by the defendants that an action was instituted against the City of New York in 1970 is insufficient to warrant dismissal of the plaintiffs’ complaint pursuant to CPLR 3211 (a) (1) and (7).” We agree with the decision by Special Term. In Guggenheimer v Ginzburg (43 NY2d 268, 275), the Court of Appeals, in discussing the issue of whether a particular complaint is sufficient, declared that “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail”. In that regard, plaintiffs’ complaint does not merely consist of conclusory allegations. While the record reveals that defendant filed a notice of claim and commenced suit against the City of New York, no further action appears to have been taken by defendant on plaintiffs’ behalf notwithstanding repeated requests for information made by his clients. The fact that defendant was suspended from the practice of law on May 17, 1979 and, thereafter disbarred, effective November 3, 1980, is beside the point. He may have been precluded from prosecuting the case subsequent to May 17,1979 but that does not explain his lack of activity prior thereto. Moreover, defendant not only failed to take affirmative steps to prosecute plaintiffs’ case, he falsely represented to them that he had obtained a settlement of their claim. There is documentary evidence to support plaintiffs’ assertion to that effect. Whether or not the action against the city is still viable after all these years goes to the merits of plaintiffs’ cause of action. Similarly, the amount of plaintiffs’ loss, if any, caused by defendant’s purported malpractice is significant in assessing damages. In neither event is dismissal of the complaint warranted. An attorney is liable “if it can be proved that his conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession” (Grago v Robertson, 49 AD2d 645, 646). The complaint clearly sets forth a cause of action that defendant did not exercise an ordinary and reasonable degree of care and skill with respect to plaintiffs’ suit against the City of New York. Accordingly, Special Term properly denied defendant’s motion to dismiss. Concur — Murphy, P. J., Sullivan and Milonas, JJ.; Silver-man and Kassal, JJ., each dissent in a separate memorandum.

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96 A.D.2d 485, 465 N.Y.S.2d 196, 1983 N.Y. App. Div. LEXIS 18989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beer-v-florsheim-nyappdiv-1983.

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