Plaintiff INDE)( NO (Action No. 02)

Transcription

1 )( """"""'"... SHORT FORM ORDER SUPREME COURT-NEW YORK STATE-NASSAU COUNTY PRESENT: JUSTICE ANTHONY L. PARGA JUSTICE JANINE PETRACCA -against- KENNTH J. WEINSTEIN, ESQ. KENNETH J. WEINSTEIN, ESQ. )( P ART 8 Plaintiff INDE)( NO /09 (Action. 01) Defendant. MOT fda TE: 4/1/11 SEQUENCE NO against - Plaintiff INDE)( NO (Action No. 02) JANINE PETRACCA Defendant. Notice of Motion, Affs. & Exs.... """"" Affirmation in Opposition... Reply Affirmation Upon the foregoing papers, the motion by defendant (in Action #1), Kenneth J. Weinstein, Esq., for summary judgment in Action #1, pursuant to CPLR 3212, is granted. The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. Action #1 is a legal malpractice action commenced by plaintiff Janine Petracca against Kenneth 1. Weinstein, Esq. arising out of Mr. Weinstein s representation of the plaintiff in a Family Court custody and visitation proceeding action. The parties agree that the within action is predicated solely on plaintiff Janine Petracca s claim that she allegedly suffered damages due to Mr. Weinstein s purported failure to seek an award of attorneys fees. In her complaint, plaintiff Petracca alleges that Mr. Weinstein was negligent in his representation of her in the underlying

2 custody action because he failed to make an application for an award of counsel fees from her husband at the conclusion of the underlying custody proceeding. Said action was resolved by stipulation between the parties whereby Janine Petracca obtained sole legal and residential custody of the two infant children. Defendant Weinstein argues that he is entitled to summary judgment as he did, in fact reserve plaintiff Petracca s right to make an application for attorneys fees after the conclusion of the underlying custody action. In support of his motion, Mr. Weinstein submits a sworn affidavit, wherein he attests that at the conclusion of the custody settlement, he sought an agreement to reimburse Petracca for the attorneys' fees she incurred in the custody proceeding from her husband, Eugene Petracca. In advance thereof, Mr. Weinstein attests that Janine Petracca, Eugene Petracca, counsel for Eugene Petracca, attorneys Joshua Gruner, Esq. and Stephen Gassman, Esq., and he stipulated in the presence of the Referee, that if Janine Petracca claim for legal fees was not otherwise settled, Janine Petracca could bring a motion for legal fees notwithstanding the settlement and termination of the Family Court proceeding. In furtherance of his contentions, Mr. Weinstein submits the affidavits of Eugene Petracca s counsel, Joshua Gruner, Esq. and Stephen Gassman, Esq., who both attest that the parties and their counsel expressly stipulated and agreed that Janine Petracca s rights to bring an application for an award of her counsel fees after the Family Court matter was terminated were reserved, ifthe fee issue was not otherwise resolved through settlement. Joshua Gruner, Esq. further attests that an offer in settlement of Janine Petracca s legal fee claim against Eugene Petracca was made during his firm s representation of Eugene Petracca, but Janine Petracca jected the offer. Additionally, defendant Weinstein submits an affdavit from Nathaniel H. Weisel, Esq., the Petracca s infant children s court-appointed law guardian, who also attests that he was present when the parties ented into a final order of custody and parental access before Referee Phillips. He attests that the parties expressly stipulated and agreed, before Referee Philips, that if a legal fee claim by Janine Petracca was not settled, Janine Petracca could bring a motion for reimbursement of legal fees from Eugene Petracca after the final termination of the Family Court proceeding. Defendant Weinstein also submits a letter, dated October (after the entry of the October stipulation and order), from Nathaniel Weisel, Esq. in which Mr. Weisel states that "on October 2007, when the Petracca matter settled you reserved your right to bring a motion for attorneys fees before Referee Phillps if said matter did not settle." Mr. Weisel inquires as to whether the issues regarding attorneys fees have been settled and goes further to request that a copy of any motion pertaining to attorneys fees be served upon his office. Defendant Weinstein argues that he did reserve the plaintiff's right to seek reimbursement of attorneys fees, but that J anine Petracca terminated his services at the conclusion of the underlying custody matter and failed to furnish Mr. Weinstein with the necessary supporting

3 financial disclosure affidavits necessary to seek reimbursement of attorneys fees. Mr. Weinstein submits letters sent from his office to Janine Petracca dated December and December 2007 confirming that she refused to prepare a Statement of Net Worth in support of her requested counsel fee motion. The letter also confirms receipt of an earlier handwritten letter of Ms. Petracca, dated December (also submitted by defendant), in which Ms. Petracca rejects Eugene Petracca s $ offer in settlement of the attorneys fees issue and confirms that she has requested that Mr. Weinstein not negotiate further with respect to the counsel fee issue nor proceed with the matrimonial action. Mr. Weinstein attests that he prepared an application for reimbursement of counsel fees after the termination of the custody matter, but Ms. Petracca failed to complete an Affidavit of Net Worth in support of the application. Mr. Weinstein contends that plaintiff did not commence the within legal malpractice action until after Mr. Weinstein filed for arbitration against Janine Petracca to collect his legal fees. Defendant argues that he is entitled to summar judgment as plaintiff Janine Petracca cannot establish that Mr. Weinstein s conduct fell below the ordinar and reasonable skill and knowledge commonly possessed by a member of the profession nor can she establish that she sustained any damages as a result of her claims against Mr. Weinstein. In opposition, the plaintiff submits an affidavit in which she attests that no agreement was ever entered into relative to attorney s fees in front of Referee Philips and that Mr. Weinstein advised her that he "forgot" to ask for reimbursement of attorney s fees at the hearing. She also attests that she did provide him with a Net Worth Statement in April 2008 which had been prepared by a Mr. Clair. In plaintiff Janine Petracca s prior affidavit, dated July however, she attests that she fired Mr. Weinstein and had hired new counsel in October 2007, six months prior to sending Mr. Weinstein the April 2008 Net Worth Statement. Additionally, while Ms. Petracca s attests that Mr. Weinstein did not preserve her right to make an application for attorneys' fees, the transcript of the proceeding for fees on November reveals that Ms. Petracca s new attorney stated to the court that Ms. Petracca told him that she " believes that her former attorneys had preserved her right somewhere along the line. Plaintiff argues in her opposition that Mr. Weinstein was negligent in his representation of her in the underlying custody action because he failed to make an application for an award of counsel fees from her husband at the conclusion of the underlying custody proceeding on the record or in writing and that he failed to preserve plaintiff's right to make an application for attorneys fees, as he failed to create a written stipulation to that effect and/or include such a provision in the Final Order of Custody and Parental Access dated October Plaintiff notes that the transcript of the proceedings of October 10, 2007 and the order of October make no mention of an application for reimbursement of attorneys fees. Plaintiff further argues that Referee Phillips dismissed plaintiff's claims for

4 , " reimbursement of attorneys' fees in her Order of November 8, 2010, noting that "the matter was completed in its entirety October 2007, without any preservation of any right to move before this Court for legal fees. In his Reply Affrmation, defendant Weinstein submits the transcript of the proceedings which took place on November 4, 2010, before Referee Philips, at which counsel for Eugene Petracca made an oral application before the court to dismiss Janine Petracca s petition and motion for legal fees as being "time bared. " At said proceedings, Janine Petracca was represented by new counsel, Mark Ialenti, Esq. Counsel for Eugene Petracca argued that Ms. Petracca s motion was barred by the doctrine of laches, as there was "a three year delay in bringing any kind of action to enforce of collect these legal fees. " Referee Philips agreed and stated on the record that she did not know whether the right to make an application for legal fees was preserved or not and that she was "not making any ruling on whether those rights were or were not preserved. " Referee Philips stated but I do have to concur that the argument of latches really has to apply. We re talking about three years later. " Referee Philips reduced her decision to writing, by the order of November 8, 2010, in which she states that the doctrine of laches bars the enforcement of the right to legal fees which would result in a prejudice to the respondent three years after the final disposition. She further states within the order that the sole issue of custody and visitation was before the Family Court and was resolved by final order of October 2007 without attorneys fees, and that it would prejudice the respondent to permit the petitioner to seek legal fees before the Family Court three years later. It is well settled that an attorney is liable for malpractice if it can be proven that his or her conduct fell below the ordinar and reasonable skill and knowledge commonly possessed by a member of the profession and if it can be proven that the plaintiff would have recovered " but for the alleged malpractice. (Ashton v. Scotman 260 A.D.2d N.Y.S.2d 322 (2d Dept. 1999); Saferstein v. Klein 250 AD.2d 831, 672 N.Y.S.2d 799 (2d Dept. 1998)). A plaintiff must establish that the attorney s negligence was a proximate cause of the loss sustained, that the plaintiff incurred damages as a direct result of the attorney s action, and that the plaintiff would have been successful in the underlying action if the attorney had used due care. (Porello v. Longworth 21 AD. 3d 541, 799 N. Y.S. 2d 918 (2d Dept. 2005); Andrews Beverage Distributor Inc. v. Stern 215 A. 2d 706, 627 N. Y.S.2d 423 (2d Dept. 1995); Turner v. Robins 267 AD N. Y.S. 2d 728 (2d Dept. 1999); Zasso v. Maher 226 AD.2d N.Y.S.2d 244 (2d Dept. 1996)). Defendant Weinstein has made a prima facie demonstration of entitlement to summary judgment and the plaintiff has failed to raise a triable issue of fact to defeat defendant's motion. Defendant has demonstrated through admissible evidence that he did reserve the plaintiff's right to make an application for legal fees after the conclusion of the custody proceedings and that his

5 conduct did not fall below the ordinary and reasonable skil and knowledge commonly possessed by a member of the profession. Further, defendant has established that the plaintiff is unable to prove that Mr. Weinstein s alleged negligence was a proximate cause of the damages she incurred. Plaintiff waited three years after the final custody order was entered in October 2007 to make an application for attorneys fees, and her application was denied due to her own three year delay in making the application. There is no evidence that the delay in fiing a motion for attorneys fees was due to Mr. Weinstein s representation of the plaintiff, as the plaintiff advised Mr. Weinstein in 2007 not to do any further work on her behalf and attests that she " fired" Mr. Weinstein in October Accordingly, plaintiff cannot demonstrate that she would have recovered " but for " Mr. Weinstein s alleged negligence in failing to reserve her right to make an application for attorneys fees on the record entered in October To succeed on a motion for summar judgment, a defendant must establish that the plaintiff is unable to prove at least one of the essential elements of the cause of action. (Markowitz v. Kurzman, Eisenberg, Corbin, Lever & Goldman, LLP 82 AD.3d 719, 917 N. Y.S.2d 683 (2d Dept. 2011)). Accordingly, defendant Kenneth J. Weinstein, Esq. s motion for summar judgment in Action #1 is granted, and plaintiff's action bearing index number 20211/09 is hereby dismissed. Dated: May Anthony L. Parga J. c. Cc: Thomas J. Stock & Associates 88 Second Street Mineola, NY L' Abbate, Balkan, Colavita & Contini, LLP 1001 Franklin Avenue Garden City, NY ENTERED MAY "A&S COUNTY COUNTY CLERK' S OFfiCE