Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2025 NY Slip Op 31462(U) April 25, 2025 Supreme Court, New York County Docket Number: Index No. 157052/2024 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157052/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 04/25/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 157052/2024 PARK WEST EXECUTIVE SERVICES, INC.,FIRST MERCURY CASUALTY COMPANY, UNITED SPECIALTY MOTION DATE 02/13/2025 INSURANCE COMPANY MOTION SEQ. NO. 001 Plaintiff,
-v- DECISION + ORDER ON GALLO VITUCCI & KLAR, LLP, HEATHER C. RAGONE, MARY L. MALONEY, MOTION
Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for DISMISSAL .
In this legal malpractice action, defendants Gallo Vitucci & Klar LLP (“GVK”), Heather
C. Ragone (“Ragone”), and Mary A. Maloney (“Maloney”), move pursuant to CPLR §§
3211(a)(1), 3211(a)(5), 3211(a)(7), and CPLR § 3013 pre-answer to dismiss the complaint
arguing that plaintiffs have failed to state a viable cause of action for legal malpractice, that they
are collateral estopped from litigating the issues raised, and that the complaint lacks particularity
as to Ragone and Malone.
BACKGROUND
Plaintiff, Park West Executive Services, (“Park West”) facilitates taxi and limousine
drivers to customers in need of transportation (NYSCEF Doc No 1 at ¶ 32). Plaintiffs, United
Specialty Insurance Company (“USIC”) and First Mercury Casualty Company (“First
Mercury”), are insurance companies who issued policies to First West (id. at 34 – 35). On
October 31, 2014, non-party Margaret Rivera, a driver who had a contract with Park West, was
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involved in a motor vehicle accident (id. at ¶ 42 – 43). As a result of the accident, non-party
Ennigier Rivera, suffered injuries and commenced an action for personal injuries in New York
State Supreme Court, Bronx County, entitled Ennigier Rivera v. MD. LR. Bhuiyan and Margaret
Rivera, under index number 306435/2014 (the “Underlying Action”) (id. at ¶ 44 – 45).
Defendants represented Margaret Rivera, Mohammed Bhuiyan (the owner of the car operated by
Margaret Rivera), and Park West in the Underlying Action (id. at 46 – 50).
Plaintiffs allege that defendants were negligent in their representation because they the
First Department ruled that they admitted that Margaret Rivera was an employee of Park West,
thus making them vicariously liable for Margaret Rivera’s negligence. Plaintiffs contend that
Margaret Rivera was an independent contractor, and if that argument had successfully been made
in the underlying action, then they would not have had to settle that action.
DISCUSSION
Failure to State a Claim
When reviewing a “motion to dismiss for failure to state a cause of action pursuant to
CPLR 3211(a)(7), [courts] must accept the facts as alleged in the complaint as true, accord the
plaintiff the benefit of every reasonable inference, and determine only whether the facts, as
alleged fit within any cognizable legal theory” (Bangladesh Bank v Rizal Commercial Banking
Corp., 226 AD3d 60, 85-86 [1st Dept 2024] [internal quotations omitted]). “In making this
determination, we are not authorized to assess the merits of the complaint or any of its factual
allegations” (id. at 86 [internal quotations omitted]). Further “[i]n assessing a motion under
CPLR 3211(a)(7), ... the criterion is whether the proponent of the pleading has a cause of action,
not whether [they have] stated one” (Eccles v Shamrock Capital Advisors, LLC, 2024 NY Slip
Op 02841 [Ct App May 23, 2024] [internal quotations omitted]).
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To establish a cause of action for legal malpractice, plaintiff must show that: (1) the
attorney was negligent; (2) the attorney's negligence was a proximate cause of plaintiff's losses;
and (3) plaintiff suffered actual damages” (Springs v L&D Law P.C., 234 AD3d 422, 423 [1st
Dept 2025]) “An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if
but for the attorney's negligence the plaintiff would have succeeded on the merits of the
underlying action or would not have sustained actual and ascertainable damages” (83 Willow,
LLC v Apollo, 187 AD3d 563 [1st Dept 2020]). “Conclusory allegations of damages or injuries
predicated on speculation cannot suffice for a malpractice action” (Philip S. Schwartzman, Inc. v
Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 703-04 [2d Dept 2023]).
Here, plaintiffs’ legal malpractice claim must fail because the damages alleged are purely
speculative. Plaintiffs argue that defendants were negligent by, in their motion for summary
judgment in the underlying action and the appeal of that decision, admitting that Margaret Rivera
was an employee of Park West. In the reply brief submitted by defendants in the Appeal to the
Underlying Action, they argue for dismissal of a negligent hiring claim as against Park West,1
because a negligent hiring claim cannot be maintained against an employer, when the employer
is already liable under the theory of respondeat superior (Ennigier RIVERA, Plaintiff-
Respondent, v. Md. Lr. BHUIYAN, Margaret Rivera and Park West Executive Services, Inc.,
Defendants-Appellants., 2016 WL 11543386, at *12). The First Department ruled that this
argument was an admission that Margaret Rivera was an employee of Park West (Rivera v
Bhuiyan, 149 AD3d 493, 494 [1st Dept 2017] [“Although Bhuiyan and Park West initially
1 The reason that the motion sought dismissal of the negligent hiring claim in the Underlying Actions, was because punitive damages could have been sought against Park West for that cause of action, while liability on the basis of respondeat superior does not allow for punitive damages (Quiroz v Zottola, 96 AD3d 1035 [2d Dept 2012]) 157052/2024 PARK WEST EXECUTIVE SERVICES, INC. ET AL vs. GALLO VITUCCI & KLAR, Page 3 of 5 LLP ET AL Motion No. 001
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denied in the answer that defendant Rivera was operating the vehicle within the scope of her
employment when the accident happened, in their reply affirmation, they concede the issue”]).
However, plaintiffs’ allegations that had defendants not allegedly conceded that
Maragaret Rivera was an employee of Park West, they would not have suffered damages, rely on
a conclusory assumption that the courts would have ruled that she was an independent
contractor.
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Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2025 NY Slip Op 31462(U) April 25, 2025 Supreme Court, New York County Docket Number: Index No. 157052/2024 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157052/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 04/25/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 157052/2024 PARK WEST EXECUTIVE SERVICES, INC.,FIRST MERCURY CASUALTY COMPANY, UNITED SPECIALTY MOTION DATE 02/13/2025 INSURANCE COMPANY MOTION SEQ. NO. 001 Plaintiff,
-v- DECISION + ORDER ON GALLO VITUCCI & KLAR, LLP, HEATHER C. RAGONE, MARY L. MALONEY, MOTION
Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for DISMISSAL .
In this legal malpractice action, defendants Gallo Vitucci & Klar LLP (“GVK”), Heather
C. Ragone (“Ragone”), and Mary A. Maloney (“Maloney”), move pursuant to CPLR §§
3211(a)(1), 3211(a)(5), 3211(a)(7), and CPLR § 3013 pre-answer to dismiss the complaint
arguing that plaintiffs have failed to state a viable cause of action for legal malpractice, that they
are collateral estopped from litigating the issues raised, and that the complaint lacks particularity
as to Ragone and Malone.
BACKGROUND
Plaintiff, Park West Executive Services, (“Park West”) facilitates taxi and limousine
drivers to customers in need of transportation (NYSCEF Doc No 1 at ¶ 32). Plaintiffs, United
Specialty Insurance Company (“USIC”) and First Mercury Casualty Company (“First
Mercury”), are insurance companies who issued policies to First West (id. at 34 – 35). On
October 31, 2014, non-party Margaret Rivera, a driver who had a contract with Park West, was
157052/2024 PARK WEST EXECUTIVE SERVICES, INC. ET AL vs. GALLO VITUCCI & KLAR, Page 1 of 5 LLP ET AL Motion No. 001
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involved in a motor vehicle accident (id. at ¶ 42 – 43). As a result of the accident, non-party
Ennigier Rivera, suffered injuries and commenced an action for personal injuries in New York
State Supreme Court, Bronx County, entitled Ennigier Rivera v. MD. LR. Bhuiyan and Margaret
Rivera, under index number 306435/2014 (the “Underlying Action”) (id. at ¶ 44 – 45).
Defendants represented Margaret Rivera, Mohammed Bhuiyan (the owner of the car operated by
Margaret Rivera), and Park West in the Underlying Action (id. at 46 – 50).
Plaintiffs allege that defendants were negligent in their representation because they the
First Department ruled that they admitted that Margaret Rivera was an employee of Park West,
thus making them vicariously liable for Margaret Rivera’s negligence. Plaintiffs contend that
Margaret Rivera was an independent contractor, and if that argument had successfully been made
in the underlying action, then they would not have had to settle that action.
DISCUSSION
Failure to State a Claim
When reviewing a “motion to dismiss for failure to state a cause of action pursuant to
CPLR 3211(a)(7), [courts] must accept the facts as alleged in the complaint as true, accord the
plaintiff the benefit of every reasonable inference, and determine only whether the facts, as
alleged fit within any cognizable legal theory” (Bangladesh Bank v Rizal Commercial Banking
Corp., 226 AD3d 60, 85-86 [1st Dept 2024] [internal quotations omitted]). “In making this
determination, we are not authorized to assess the merits of the complaint or any of its factual
allegations” (id. at 86 [internal quotations omitted]). Further “[i]n assessing a motion under
CPLR 3211(a)(7), ... the criterion is whether the proponent of the pleading has a cause of action,
not whether [they have] stated one” (Eccles v Shamrock Capital Advisors, LLC, 2024 NY Slip
Op 02841 [Ct App May 23, 2024] [internal quotations omitted]).
157052/2024 PARK WEST EXECUTIVE SERVICES, INC. ET AL vs. GALLO VITUCCI & KLAR, Page 2 of 5 LLP ET AL Motion No. 001
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To establish a cause of action for legal malpractice, plaintiff must show that: (1) the
attorney was negligent; (2) the attorney's negligence was a proximate cause of plaintiff's losses;
and (3) plaintiff suffered actual damages” (Springs v L&D Law P.C., 234 AD3d 422, 423 [1st
Dept 2025]) “An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if
but for the attorney's negligence the plaintiff would have succeeded on the merits of the
underlying action or would not have sustained actual and ascertainable damages” (83 Willow,
LLC v Apollo, 187 AD3d 563 [1st Dept 2020]). “Conclusory allegations of damages or injuries
predicated on speculation cannot suffice for a malpractice action” (Philip S. Schwartzman, Inc. v
Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 703-04 [2d Dept 2023]).
Here, plaintiffs’ legal malpractice claim must fail because the damages alleged are purely
speculative. Plaintiffs argue that defendants were negligent by, in their motion for summary
judgment in the underlying action and the appeal of that decision, admitting that Margaret Rivera
was an employee of Park West. In the reply brief submitted by defendants in the Appeal to the
Underlying Action, they argue for dismissal of a negligent hiring claim as against Park West,1
because a negligent hiring claim cannot be maintained against an employer, when the employer
is already liable under the theory of respondeat superior (Ennigier RIVERA, Plaintiff-
Respondent, v. Md. Lr. BHUIYAN, Margaret Rivera and Park West Executive Services, Inc.,
Defendants-Appellants., 2016 WL 11543386, at *12). The First Department ruled that this
argument was an admission that Margaret Rivera was an employee of Park West (Rivera v
Bhuiyan, 149 AD3d 493, 494 [1st Dept 2017] [“Although Bhuiyan and Park West initially
1 The reason that the motion sought dismissal of the negligent hiring claim in the Underlying Actions, was because punitive damages could have been sought against Park West for that cause of action, while liability on the basis of respondeat superior does not allow for punitive damages (Quiroz v Zottola, 96 AD3d 1035 [2d Dept 2012]) 157052/2024 PARK WEST EXECUTIVE SERVICES, INC. ET AL vs. GALLO VITUCCI & KLAR, Page 3 of 5 LLP ET AL Motion No. 001
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denied in the answer that defendant Rivera was operating the vehicle within the scope of her
employment when the accident happened, in their reply affirmation, they concede the issue”]).
However, plaintiffs’ allegations that had defendants not allegedly conceded that
Maragaret Rivera was an employee of Park West, they would not have suffered damages, rely on
a conclusory assumption that the courts would have ruled that she was an independent
contractor. Defendants note that in subsequent cases, courts have rejected Park West’s argument
that its drivers were in fact independent contractors and found them vicariously liable (NYSCEF
Doc No 17)2. Furthermore, while plaintiffs argue that Margaret Rivera signed a contract which
labeling her as an independent contractor, such a contract is not dispositive of the issue (Carlson
v Am. Intern. Group, Inc., 30 NY3d 288, 301 [2017]). Therefore, plaintiffs’ allegations of
proximate cause are too speculative to maintain a legal malpractice action, and the complaint
must be dismissed.
Accordingly it is,
ORDERED that the motion to dismiss is granted, and the Clerk is directed to enter
2 While defendants argue that the ruling that other Park West drivers were employees, “collaterally estops” plaintiffs from arguing that Maragaret Rivera was an independent contractor, [f]or collateral estoppel to apply, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Davidson v Am. Bio Medica Corp., 299 AD2d 390, 390 [2d Dept 2002]), and “[T]he determination of whether someone is an independent contractor is a fact-specific question” (Carlson v Am. Intern. Group, Inc., 30 NY3d 288, 301 [2017]), so collateral estoppel cannot apply as the nature of the relationship would depend upon individual facts for each worker. 157052/2024 PARK WEST EXECUTIVE SERVICES, INC. ET AL vs. GALLO VITUCCI & KLAR, Page 4 of 5 LLP ET AL Motion No. 001
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judgment in favor of the defendants, with costs and disbursements to the defendants as taxed by
the Clerk.
4/25/2025 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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