Gotay v. Breitbart

58 A.D.3d 25, 866 N.Y.S.2d 638

Opinions

OPINION OF THE COURT

Lippman, P.J.

Plaintiff seeks to recover for the malpractice of her former attorneys in connection with the prosecution of her underlying medical malpractice action. The question presented is whether the legal malpractice action is time-barred.

The medical malpractice action arose out of injuries plaintiff allegedly sustained during her birth in August 1977. In early 1978, plaintiffs mother retained the law firm of Kaufman & Siegel, and that now-defunct firm commenced the malpractice action on plaintiffs behalf in April of the same year. After a long period of apparent inactivity in the litigation, plaintiffs mother substituted defendant David Breitbart as counsel in 1993.

In 1994, former Breitbart associates Michael Handwerker, Neil Honschke and Steve Marchelos formed their own firm (Handwerker, Honschke and Marchelos [HHM]) and became plaintiffs attorneys of record. After HHM dissolved in November 1998, defendant Handwerker became a member of Ross, Suchoff, Hankin, Maidenbaum, Handwerker & Mazel, EC. (Ross Suchoff), bringing plaintiffs medical malpractice action with him. Shortly thereafter, Mark Hankin, a partner at Ross Suchoff, evaluated plaintiffs case and determined that Ross Suchoff would not represent plaintiff because an index number had never been purchased in the action. Plaintiff and her father were advised of Hankin’s decision on January 28, 1999. Plaintiff commenced this action for attorney malpractice on January 31, 2002.

Footnotes

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Although Supreme Court granted defendants’ motion to dismiss the action for failure to state a cause of action, this Court reversed (14 AD3d 452 [2005]), .finding, inter alia, that the complaint adequately alleged that HHM had been negligent in failing to apply for an order of filing nunc pro tunc in the medical malpractice action (at 454). Defendants then moved for summary judgment, asserting that the action was time-barred and that there was no proof of damages attributable to the alleged negligence. Plaintiff cross-moved for summary judgment, arguing that the medical malpractice should be deemed admitted. Ultimately, upon reargument, Supreme Court denied the HHM defendants’ motions, finding that those defendants had failed to make a prima facie showing that the attorney-client relationship had ended more than three years before plaintiff commenced this action.

Defendants’ statute of limitations defense is premised upon the contention that their representation of plaintiff did not continue within the statutory period. “The continuous representation doctrine . . . ‘recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered’ ” (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001], quoting Greene v Greene, 56 NY2d 86, 94 [1982]). The statute of limitations is tolled while the attorney continues to represent the client on a particular matter, in part to protect the professional relationship (see Shumsky, 96 NY2d at 167-168). However, the representation must be related to the specific area that is the subject of the malpractice claim (id. at 168) and “there must be clear indicia of an ongoing continuous, developing, and dependent relationship between the client and the attorney’ ” (Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754 [2000], lv dismissed 96 NY2d 730 [2001], quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 [1990]).

The HHM defendants contend that the subject attorney-client relationship terminated in January 1998, or at the very latest on January 28, 1999. They urge that on the earlier occasion HHM partner Steve Marchelos met with plaintiff and her father and advised them that the medical malpractice action was dead and that they had the option to pursue a legal malpractice action against their former attorneys, Kaufman & Siegel. The record, however, is not in accord with this characterization of what transpired at the 1998 meeting. It is clear from Marchelos’s deposition testimony that, at the time of the 1998 meeting, he simply did not know the actual status of the medical malpractice action and, accordingly, could not have accurately represented that the action was certainly “dead.” Indeed, Marchelos testified that, as of the date of the meeting, he was still attempting to retrieve the court file and that he fully intended “to continue in trying to follow through, maybe with a resurrection of the file.” There is no indication in the record that Mar-chelos made any contrary representation to plaintiff; he nowhere claims to have told plaintiff that HHM’s efforts on her behalf had definitively concluded. Nor is there other evidence that that impression had been conveyed. There is no indication that the firm’s file on the case was either offered by Marchelos or requested by plaintiff or her father and, in fact, the file remained in the firm’s possession, where it evidently continued to be viewed as active, since it was among the files that defendant Handwerker took with him to Ross Suchoff in January 1999.

As noted, the file was given, presumably by Handwerker, to Ross Suchoff partner Hankin, and after Hankin reviewed the file and decided that Ross Suchoff would not take the matter, he met with plaintiff and her father on January 28, 1999. He told them that Ross Suchoff would not handle the case. Handwerker was not present at the meeting, and there is no proof that either plaintiff or her father was then aware that Handwerker had some weeks before become a member of Ross Suchoff. Under these circumstances, Hankin’s representation to plaintiff respecting Ross Suchoff s disinterest in pursuing the matter was insufficient to signal to plaintiff that her representation by HHM had terminated. Plaintiffs attorney-client relationship had been with HHM, and never with Ross Suchoff, and her interaction with Hankin, a new attorney at a new firm, cannot reasonably be viewed as having placed her on notice that her attorney-client relationship with her own attorneys at HHM had concluded.

Although defendants claim that plaintiffs father requested the return of plaintiffs file at the January 1999 meeting, the record simply does not permit us to conclude that such a request was in fact made. Indeed, it is clear that the file was not returned at the meeting or in its immediate aftermath and that the wishes of plaintiff and her father as to the file’s disposition, if they were conveyed at all, were not clear to Hankin, for Hankin, in a February 22, 1999 follow-up letter, wrote to plaintiff and her father, “[y]our file remains in our possession. In the event you require the whole or any portion thereof, we are available to provide you with same.”

The Court of Appeals has recognized it as “essential that the terms of [attorney-client] representation ... be set down with clarity” (Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 179 [1986]). Although the need for such clarity has most often been remarked upon in connection with fee disputes, it is no less critical to have an explicit and accurate understanding of any other fundamental issue pertaining to the attorney-client relationship, including, obviously, the elemental issue of whether there is a relationship at all. There is no room for uncertainty on these matters, especially where, as here, attorneys deal with laypersons unversed in the nuances and intricacies of legal practice and expression; what may seem crystal clear to a lawyer may be utterly lost upon the client. If the attorney-client relationship has come to an end, that fact should be absolutely clear to all parties involved.

An attorney is required to provide reasonable notice to the client when withdrawing from representation (see CPLR 321 [b] [2]; Rules of App Div, 1st Dept [22 NYCRR] § 604.1 [d] [6]), and no definition of reasonable notice would require a client to infer, from ambiguous action or inaction on the part of her attorneys, much less on the part of an attorney with whom she had no relationship, that she is no longer represented. Particularly under the circumstances obtaining here, where the entire course of the litigation had been fraught with delay and a lack of communication between client and counsel, and where there had been a series of largely inactive yet persistent attorney-client relationships, more than equivocal behavior was required to sever the representational relationship. The elaborate inferential constructs which the dissent finds so irresistible are not appropriately utilized to impute knowledge of the status of an attorney-client relation. It would have been a simple matter for HHM to advise plaintiff that in its estimation the medical malpractice action was unsalvageable and, consequently, that their relationship had run its course. Inasmuch, however, as the HHM defendants failed to meet their burden as proponents of the summary judgment motion to show prima facie that such unequivocal notice had been afforded, the motion was properly denied.

By contrast, plaintiffs action was shown to be time-barred as against defendant Breitbart because, although HHM was never formally substituted for Breitbart as counsel, it was clear to all parties involved that plaintiff had retained HHM to represent her in the underlying medical malpractice litigation (see MacArthur v Hall, McNicol, Hamilton & Clark, 217 AD2d 429 [1995]). The portion of this Court’s prior decision (14 AD3d 452 [2005]) that denied Breitbart’s motion to dismiss for failure to state a cause of action is not law of the case precluding the grant of summary judgment here, as it neither addressed nor resolved the statute of limitations issue (see Mulder v Donaldson, Lufkin & Jenrette, 224 AD2d 125, 131 [1996]).

The parties submitted conflicting expert opinions, raising an issue of fact as to whether plaintiff would have been successful in the underlying medical malpractice action. As a result, defendants are not entitled to summary judgment based on the alleged lack of a causal link between plaintiffs damages and defendants’ alleged inaction in obtaining an index number and filing the medical malpractice action nunc pro tunc. Handwork-er’s argument that it is speculative whether a court would have granted a motion to purchase an index number and file a summons and complaint nunc pro tunc in the underlying action is precluded by this Court’s prior decision (14 AD3d at 454).

Finally, Supreme Court properly denied plaintiffs cross motion for summary judgment as untimely, since plaintiff failed to demonstrate good cause for the delay (see Brill v City of New York, 2 NY3d 648, 652 [2004]).

Accordingly, the orders of Supreme Court, New York County (Joan A. Madden, J.), entered January 25, 2007 and July 30, 2007, which, insofar as appealed from, granted defendant Breit- hart’s motion for summary judgment, denied the motions of defendants Handwerker, Honschke, Marchelos and the partnership Handwerker, Honschke and Marchelos for summary judgment, and denied plaintiffs cross motion for summary judgment, should be affirmed, without costs.

Plaintiffs motion, made by new counsel, to reactivate her medical malpractice action in Bronx County Supreme Court was denied in January 2003.