Vitale v Meiselman 2013 NY Slip Op 30910(U) April 25, 2013 Sup Ct, New York County Docket Number: /12 Judge: Eileen A. Rakower Republished from

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1 Vitale v Meiselman 2013 NY Slip Op 30910(U) April 25, 2013 Sup Ct, New York County Docket Number: /12 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] lnned ON4130!201? r' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : /201 I VITALE, FELlClA vs MEISELMAN & GORDON, LLP Sequence Number : 003 PARTIAL SUMMARY JUDGMENT I The following papers, numbered I to -, were read on this motion tolfor - PART /5 INDEX NO. MOTION DATE. MOTION SEQ. NO. Notice afmotion/order to Show Cause - Affidavits - Exhibits I Ws). I;& 5 Y Answering Affidavits - Exhibits I Ws). 5,&7 Replying Affidavits Upon the foregoing papers, it is ordered that this motion is I Now" A+fL-,- A -c\\,"j.s.c. I. CHECK ONE:... [3 CASE DISPOSED NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE:... MOTION IS: 0 GRANTED [IIS DENIED a GRANTED IN PART 0 OTHER 3. CHECK IF APPROPRIATE:... 0 SETTLE ORDER SUBMIT ORDER a DO NOT POST 0 FlDUCl ARY APPOINTMENT 0 REFERENCE

3 [* 2] Plaintiffs, Index No /20 12 Mot. Seq.: against - DECISION/ORDER MEISELMAN & GORDON, LLP ALVIN GORDON and MICHAEL MEISELMAN, Defendants. HON. EILEEN A. MOWER, J.S.C. This is an action for legal Meiselman & Gordon LLP, Alvin Gordon, and Michael Meiselman s (collectively, Defendants ) representation of plaintiffs Felicia Vitale and Louis Vitale (collectively, Plaintiffs ) in a medical malpractice action that was dismissed by the United States District Court of New Jersey ( the District Court ) with prejudice.. This action was commenced on August 3, In its initial Complaint, Plaintiffs asserted a claim for legal malpractice based on Defendants failure to comply with the New Jersey Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Issue was joined on or about October 1 1, Plaintiffs then moved for leave to file a supplemental summons and amended complaint by motion dated March 28,2013 to add a claim based on Defendants failure to name the individual parties who had rendered care and treatment services, thereby limited Plaintiffs recovery. That motion was granted. Defendants answered the amended complaint on or about September 1 1,20 12, denying that claim. Plaintiffs move for an Order granting them partial summary judgment pursuant to CPLR $3212 as to the issue of negligencekability against Defendants for legal 1

4 [* 3] 4 malpractice in causing the underlying medical malpractice action to be dismissed with prejudice due to their failure to comply with New Jersey s Affidavit of Merit statute, N.J.S.A. 2A53A-26 to 29. Plaintiffs state that they are not seeking summary judgment on the ultimate issue of whether Defendants committed legal malpractice, but rather on the sole issue of whether the defendant was negligent, an issue that has already been determined in the underlying action. In support, Plaintiffs submit the attorney affirmation of Jordan H. Hecht, which annexes, among other documents, the District Court s dismissal of Plaintiffs underlying case, the expert affidavit of Michael Fruhling, Esq., and the affidavit of Louis Vitale. Defendants cross move pursuant to CPLR $32 12 for an Order granting them summary judgment and dismissing Plaintiffs Amended Complaint and alternatively, pursuant CPLR $32 16 and 3 124, striking the Amended Complaint for failure to provide discovery. Defendants submit the attorney affirmation of Brett A. Scher and the affidavit of E. Drew Britcher, Esq. Plaintiff Felicia Vitale received treatment for depressive disorder at the Carrier Clinic in Belle Mead, New Jersey. In June 2006, Plaintiff underwent multiple sessions of electroconvulsive therapy ( ECT ), which allegedly resulted in progressively worsening cognitive function and serious and permanent injuries to Ms. Vitale. Plaintiffs thereafter retained the legal services of Defendants to investigate and prosecute a claim for medical malpractice for the psychiatric care and treatment rendered by the Carrier Clinic. Defendants first commenced a malpractice action on Plaintiffs behalf against Carrier Clinic in the Supreme Court of the State of New York, Richmond County, which was subsequently discontinued. Defendants commenced a second action against the Carrier Clinic in the District Court. On May 20,2009, defendant Carrier Clinic moved to dismiss Plaintiffs case on the grounds that they had failed to comply with New Jersey s Affidavit of Service statute in that the affidavit supplied by Plaintiffs was defective as it was not from an appropriate licensed person. Plaintiffs had submitted an Affidavit of Merit by a general practitioner, Dr. Tedesco. The District Court held that Dr. Tedesco was not qualified to offer an expert opinion as to Plaintiffs alleged injuries. Accordingly, the District Court dismissed Plaintiffs case with prejudice based on the failure to comply with the New Jersey 2

5 [* 4] Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Defendants appealed the District Court s dismissal, which was affirmed by the Third Circuit of Appeals. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City ofnew York, 49 N.Y.2d 557 [ 19803). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg* Corp., 26 N.Y.2d 255 [ 19701). (Edison Stone Coy. v. 42nd Street Development Corp., 145 A.D.2d 249, [ 1 st Dept ). TO establish a cause of action for legal malpractice, the plaintiff must show (1) that the attorney was negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community; (2) that but for the attorney s negligence, plaintiff would have prevailed in the underlying action; and (3) that actual damages were sustained as a direct result of the attorney s actions? (Wilson v. City of New York, 294 A.D.2d 290, 293 [lst Dept ) (citation omitted). As plaintiffs expert Fruhling asserts in his affidavit, the New Jersey Affidavit of Merit Statute requires a plaintiff, in an action for personal injuries, wrongful death or property damage resulting fi-om an alleged act of malpractice or negligence by a licensed person in his profession or occupation, to supply an affidavit within 60 days following the date of the filing of the answer to the complaint by the defendant. Fruhling asserts that the statute requires the expert to opine that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the litigation fell outside acceptable professional or occupational standards or treatment practices. In Plaintiffs underlying medical malpractice case, Defendants submit the Affidavit of Merit of Salvatore Tedesco, M.D., a physician certified in the field of general surgery, who did not have a board certification in psychiatry and had no experience in the use of ECT and did not treat psychiatric patients in his clinical practice. Fruhling states that an attorney s retention of a general surgeon to execute an Affidavit of Merit in support 3

6 [* 5] of a psychiatric malpractice claim was a departure from good and accepted legal malpractice. Fruhling concludes that Defendants failed to exercise the degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession in New Jersey, and such failure led to the dismissal of Plaintiffs underlying action on the merits, with dismissal. In opposition, Defendants contend that the District Court s dismissal of Plaintiffs medical malpractice claim was unprecedented and could not be anticipated by a New Jersey practitioner. Defendants argue that Dr. Tedesco was an appropriate specialist and issues concerning the affidavit should have been resolved in a Ferreira conference. In his expert affidavit, Britcher states, The scheduling and conducting of a Ferreira Conference had become a well established and expected occurrence by the time the Affidavit of Merit was served in this matter in A reasonable practitioner would have expected the same to be done in this matter and that any inadequacy of the AOM [Affidavit of Merit] would have been resolved at said conference. Britcher also contends that Defendants reasonably believed that Dr. Tedesco s Affidavit of Merit would be sufficient as to the claims against the Carrier Clinic, a facility. In its reply, Plaintiff contends that these arguments were already made by Defendants in opposition to the underlying motion to dismiss and in support of Defendants appeal to the Third Circuit Court of Appeals. However, the issue of whether Defendants deviated from the applicable standadof care was not addressed in theses cases. Here, as the parties present conflicting expert affidavits concerning whether Defendants were negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community, Plaintiffs summary judgment motion is denied. Defendants cross motion for summary judgment as to Plaintiffs legal malpractice claims is also denied in light of issues of fact that exist in this case. Defendants have not established prima facie entitlement to summary judgment as to these claims. While Defendants allege that Plaintiffs have failed to demonstrate any evidence of proximate cause to support their legal malpractice action, Plaintiffs point to the affidavit of Dr. Goldstein (that had been submitted by Defendants on behalf of Plaintiffs in the underlying action), who opines, with a reasonable degree of medical 4

7 [* 6] psychiatric certainty, that the treatment rendered at the Carrier Clinic departed from accepted standards of psychiatric practice and proximately caused Ms. Vitale serious and permanent injuries. Furthermore, Defendants have not established entitlement to summary judgment on Plaintiffs claim that they were negligent in limiting Plaintiffs recovery to $250,000 and by only naming Carrier Clinic as a party defendant. Defendants contend that they would have later named individual defendants pursuant to the relation back doctrine. Plaintiffs state that Defendants have failed to demonstrate that the doctrine applied, and an amendment would have been permitted. As such, issues of fact exist with regard to this claim. However, as for Defendants motion for summary judgment as to the non-legal malpractice claims asserted in Plaintiffs Amended Complaint, Plaintiffs state only, TO the extent that any of the claims asserted are judicially determined to be encompassed within the primary claim for legal malpractice, plaintiff has no objection to removal of the duplicate claims. Accordingly, Plaintiffs second cause of action for breach of fiduciary duty, third cause of action for breach of contract, fourth cause of action for fraud/misrepresentation, and fifth cause of action for loss of services on behalf of defendant Louis Vitale are dismissed as unopposed. Defendants cross motion to strike Plaintiffs Complaint for failure to respond to discovery demands is rendered moot. Plai responses to the outstanding discovery APR Wherefore, it is hereby YORK ORDERED that Plaintiffs motio%!!&&?&h!!@~~er i ORDERED that Defendants cross motion is granted only to the extent that the second cause of action for breach of fiduciary duty, third cause of action for breach of contract, fourth cause of action for fraudmisrepresentation, and fifth cause of action for loss of services in the Amended Complaint are dismissed. This constitutes the Decision and Order of the Court. All other relief requested is denied. i 5