Alva v Gaines, Gruner, Ponzini & Novick, LLP2014 NY Slip Op 32921(U)

April 8, 2014Supreme Court, Westchester County

Docket Number: 58542/2011Judge: William J. Giacomo

Cases posted with a "30000" identifier, i.e., 2013 NYSlip Op 30001(U), are republished from various state

and local government websites. These include the NewYork State Unified Court System's E-Courts Service,

and the Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

FILED: WESTCHESTER COUNTY CLERK 04/08/2014 INDEX NO. 58542/2011

NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 04/08/2014

To c,ommence the $Wtutory tlm¢ fur appeals as of right {QPLR. 551$[al), you are a4\fi$et1 to serve a copy of ti)i$ Qfd~r1 with n9tice ot•ntry~ upon $0 p~rties,

SUPREME COURT OF i'Hli STATE OF NEW YORK COUNTY OF WESTCHESTER

PRESENT: HON. WILUAM J, GIACOM01 J,S,C,

GERALYN ALVA ami JAMES ALVA, P!ahitiffs,

GAINES, GRUNER, PONZlN! & NOVICK, LLP and TED ALAN NO\HGK,

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GA!NE:S, GRUNER, PONZINI &NOVICK, LLP and 180 ALAN NOVfCK,

ROBERT 8. MARCUS, PC and ROBERT B. l'v1ARCUS, Thkd-Party Defendants,

Index No, 58542/20'1 1 DEClSlON & ORDER

TheJ0Howin9 papers nmnbemd ·1. to 44 111ere-read on pfa~lntiffs' motion tor p~rtial $Vrrirrlary jUd£lmentage~m~t ctefendanls,··defendants' ·cross.rndHon·-for summaryjudgmentdismisalng the ccrnpMint and p!afr1tiffs' motion to amend their complaint

N<Hic* of Mcrtlon/AffldavltlExhibitA:-HJMemo of Law i"J 1 The JN"!nson's Afffrrnation H1·oppcsltkm -------------------J,~ Notice of CrO$$ Motiom'i\ffirmation/E:xhlblfs A-·Y . --~---~-~-------------------------l~h&fil __ Plaintiff's .Affidavits ih OpposWon to Cross Motion!ExhibltsA"'C, _______________________ :fQ_::hl The City's Reply --~--------------------------14

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(''.~tzf'), to prepar~ a ptoperty smvey for a proposed horne's foundation stake-out and

location and an ''as buHt certifk~ate of oc,cupancy'' for a home they \•vere buitdlng in Torn!dns

Cove, NY, Thereafter, plaintiffs' hired an excavator to dig the foundation for the house

pursuant to Atzrs tneasurements. Prob~ems arose which plaintiff$ c!airn aJe due to ,Atz.Fs

In April 2006, when plaintiffs refused to pay Atd for their \1vofk, Atz~ returned to the

ln tvlarch 2DDB, pla~rWffs retained Gaines, Gruner et aL to represent them agafr1st

AtzJ Jn a professkwial negligence action, Gaines, Gn. .. mer d~d not commence an aoth::m

survey.

that the 2006 survey and 2QD6 survey were separate transactions {as opposed to a ' .

continuous professional re@ationship). Plaintiffs'· da1m$ with respect to the 200$ survey

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P~aintfffs commenced the instant fegal malpractice case against Gaines; On.mer,

\Nho, in tum, commenced a third party action aga}nst Marcus for contribution and

indemnmcatkm,

By order dated October 3, 201··1, this Court grant'ed third party defendants motion

to distniss the oornpk~int and denied Gainer, Gruner's crO$$ motion to arnend the third

party comptaint

Gainer,. Gruner appea!ect that decision and order, hov1e\•er, the appea~ vvas never

p~-srfected.

Plaintiffs no'<N move ror-·partlaJ $Urnrnary juctgrnent against Gaines, Gruner on the

issue of neg~lgence c!a~rnlng that vvnen an attumeya!lows the statute of !knitatlons to expire

it ~s negligence as a rnatter of law,

In opposition, Gaines, Gruner argues that since plaintiffs have not shovm that any

alleged negligence proximately causedtheWdarnages the motion should be denied. It also

argues that there are material issues off act reg.arding whether the statute of limitations had

expired.

fri rep~y, f)§ainfift$ note thatthey are seeking partial summary juctgmenton the iss:ue

of negligence, not Hahilit)i so a proxirnate cause resolution is not pa.rt of the relief sought,

Further, thoy argue that ln this Co~.irfs October 3, 2011 dedsion and order it specfficat!y

he®d that the statute of Hmitations·expired and, therefore, that finding ts law cf the case.

Gaines, On.mer also cross move for summary judgment dismissing the cornp!a}nt

on the ground that pfainUffs' damages were caus.ed bythegrading planAtz:J completed in

June 28, 2001 therefore anyviatHe cause of action to·te asserted agaJnst Atz! \<Vas time

baaedhy the time plaintiffs cm1su1ted them.

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lnopposition to the cross niot!on. plaintiffs argue that the alleged negligence toox

place ~n 2005 Wh¢n Atzl staking dM not conform to his 200'1 plan, Plaintiffs allege that the

negUgence took p~ace beWi/een h;•lay and October 2005. Plaintiffs note that they reta~ned

Gaines, Gruner in March 2008 wen within the applicable 3 year statute of lirnitatlons,

P!a~ntiffs note that their expert states that Atz~ situated the house ~n the wron9 place and

not ~n accordance with the 2001 plan,

Plaint*ffa also move for teave to amend their compla~nt to clarify that they seek

damages from defendants for the 2005 work (staking) and the 2tJ06 work {the two \Na~!

plan), Pfa~}ntiffs note that from the outset defendants have been on notfoe that they seek

datnages for the 2005 w•oct< as st1ch c!altns were contained in theh' bill of particulars and

Attl vvas dei:'tosed regarding work performed in 2001, 2005 and 200$,

Gainesi Gn .. mer oppose the rnotion on the ground that the arnendrnent has no merit

and coutd be preJudiciaL

Oi!i¢:US$lon

Plaintiffs$ M<,itionfor Summary Judgment on th~ ls:sue of Negligenee

A party seeking surnrnaiy judgment hears the lnltla! burden of affirmative~y

demonstrating its entmementto summary jwdgment as a matter of law, {See Winegred v

Net41 Yotk Univ. 1~1ed Ctr., $4 NY2d 85'1, 853 [19851; Alvarez v Prospect Hospit~if; 68

N,Y2d 320 [18861), "Once this shm.ving has been made, __ the burden shifts to the partv

opposing the motlon for summary judgment to produce evidential)' proonn admis$iMe forrn

sufficient to establish the existence of material issues of fad which· require a trial of the

actkm'' {see Zt.rckertnan v~ City of ,l\tew York, 49 NY2d 557 [19801),

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It is well.,,s:ettled·tnat a plaintiffs burden in a legal malpr$ctlce··case ls a heavy one,

To sustain a legal ma@practice claim, a p!a~nt!'ff must prove three elements, narnety: 0)

proof of the attorney's negligence; (2} a showing that thB negHgence .,Nas the proxifnate

cause of the plainHffs loss or injury': and {3) evidence of actuaJ dan1$ges (Ehlingor v~

Rubotti; Glh4n & Perlazzei, p_e,, 304 A,D-:Z.d 925, 926, 758 N.Y.$,2ct i 95 [2003}; PoHegnho

v, HA~, 29·1 A.D.2d 60, 63, 738 N.Y.S.2d 3.20 [20021, iv~ denferl BB N.Y.2cl 505, 746

N.YS2d 456, 774 N£.2d 22'1 [2002.J),

Here, plaintiffs tailed to establish thek entitlement to summary judgment on th:e

issue of negligence, Notably, \>\ihi~e other Departments have granted summary judgment

on the %$sue of negligence in legal inalpractloo act~ons (soo 8orgoln v. Groce, 30 AD3d

1017, 101 S [3''i Dept 2007]; vV'ilfl@rns v, Kublick, 302 A02d 961 f 4in Dept 2003}; SiansAl v:

Ez.erskf .210 Ad2d 186 P"' Dept '19941), the Second Departmenthas not mad$ such a

finding. Rather, the Second Department cases resolve issues of !iablhty, not negHgence

\Vhich in the context of a !:e.gal ma!pracnce action is a subset of liability {see Asia-,LeB v~

Gand'n Schotsky anz'i Rf!pp~·wott, P,C., 276 AD.2d 45:3, 713 N.Y,S .. 2d 763 [21# Dept

20001),

Accordii"lg~y, plaintiff$; n1otkm for parna~ sumrnary judgm.ent on the ls.sue of

negligence is DEN~ED.

Plaintiffs~ Motion to Amend their Comph~~nt

Pursuant to CPtR 3025{b), leave to arnend a pleadbg shall be fr~ly granted

ab$ent proJudic.e to the adverse party. Nonetheless'!' it is equally true that the court should

examine the sufficiency of the merits of the proposed amendment,' ~mi, vvher:e the

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proposed arnendmentis 'palpably insufficient as a matter ofla\<v or is totally devoid ohnerlt,

~eavetcamendshculd bedenied'. '' (H1Nv, 2016ReaityAssoclstes .. 42AD3d432,433f2'w

Dept 20D?1, quo#hg Malton v. Brookhaven M~nn. Hosp, 32 AD3d 3$1 [21~~1 Dept 40061 and

citing Le€.~ v, l-ftJBltti Pon_~:, 268 A02d 564 [2'Ki Dept 2000]),

Gontrary to Gaines Gruner's arguments lt·has always been dear to all parties that

plaintiffs s.ought darnages for the ~vork perforrned by Atz! in 2005, Notably, plaintiffs and

Atz! were fuHy deposed about the work performed ln 2005 and 2006.

~n view of the tact that leave to mnend a pleading should be fre£!!y granted and

defendants cannotestab@!sh lack of notice or prejudice, p~alntffu's motion to amend the

complaint is GRANTED,

Gainest Gruner1s Cr<;>ss Motion for Summary Judgment

· !n vi~w of the questions of foct regarding \Vhat occlJrred in 2005 and the tjarnages

p!aMfiffs incurrectas a result of Ahd's 2005 vvorkGaines, Gnmer' cross motion forsurnrnary

jt.Kfgment dhm1lssing the con1pial11t is DENIED,

Surnmary

P~alnMfs' motion for partial sumrnary judgment is DENIED. Gainer, Grunet's zm::iss

motion for surnmary Jlid9ment dismissing the complaint is DENIED and plaintiffs' motton

for leave to amend their complaint %s GRANTED_ The arnended cornplalnt anrlexedto their

motion is deemed serve&

The parHes are to appear in the Settlement Conference Part on Juna 3, 2014 at

9:30 a,m, room 1600 for further proceed~ngs.

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Dated: VVhtteP~ains, New York Aprl! a. 2014

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