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Macaluso v Pollack 2010 NY Slip Op 30276(U) February 1, 2010 Supreme Court, Nassau County Docket Number: 20112/08 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT - STATE OF NEW YORK
Present:
HON. ARTHU M. DIAMOND Justice Supreme Court
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TRIAL PART: 16

ANDREA MACALUSO,
NASSAU COUNTY

Plaintiff
-againstRUTH M. POLLACK, ESQ., LYNN R. KOTTLER, ESQ. POLLACK & KOTLER, Attorneys at Law, JASON R. CORRDO, P. C., JASON R. CORRDO, ESQ. and PHILIP RIZZUTO, P. Defendants.
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The following papers having been read on this motion:

INDEX NO: 20112/08

MOTION SEQ. NO: 1,

SUBMIT DATE: 1/11/10

Notice of Motions Cross- Motion.................. Opposition papers.........
Rep Iy ............... ...... ... ..... ....

Memoranda of Law......

Motions (seq. no. 1) by the attorneys for the defendants Jason R. Corrado , P . C. and Jason R. Corrado , Esq. ; (seq. no. 3) by the attorneys for the defendant Philip J. Rizzuto , P. ; and (seq. no. 4) by the attorney for defendants Lynn R. Kottler , Esq. and Pollack & Kotler , Attorneys at Law for an order pursuant to CPLR 3211 (a) 1 and 7) dismissing the plaintiffs complaint as to the respective
defendants is determined as hereinafter set forth.

This is an action for legal malpractice. By order of Judge Daniel Martin , ASCJ , dated Sept. 1 2009 , pursuant to CPLR 3211 (c) the converted the within CPLR 3211(a)(I) and (7) motions to motions for sumar cour sua sponte judgment pursuant to CPLR 3212. In July 2004 , plaintiff retained the services of defendant Pollack & Kotler , Attorneys at Law
(the law firm) to represent her in an employment discrimination and sexual harassment case against her employer Keyspan. In July 2004 the law firm consisted of defendant Ruth M. Pollack , Esq.

(Pollack) and Lynn R. Kotler , Esq. (Kotler). Due to the conduct of defendant Pollack in pursuing the discrimination action , the Federal discrimination law suit was dismissed with prejudice. Judge Spatt' s order dated June 2 , 2007 stated:

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On May 16 2007 , at the scheduled pre- trial conference of this matter
defendants moved the Court to dismiss this action pursuant to Rule

41(b) ofthe Federal Rules of Civil Procedure. Plaintiffs counsel did not appear. Defendants asserted that (i) there has been a continuous and substantial failure to prosecute this action; (ii) plaintiff s counsel failed to comply with this Cour' s May 7 , 2007 order; (iii) plaintiffs counsel has a prior history of failing to comply with prior orders of this Cour , as described in detail in the May 7 , 2007 order of this Court and the April 3 , 2007 order of Magistrate Judge Wall; and (iv) dismissal with prejudice was the appropriate remedy. This Cour has heard the arguments of counsel for defendants in favor of the motion. No opposition to the motion was presented by plaintiff, who did not appear despite the Cour' s May 17 2007 order to do so. As noted , the Court has separately fied findings in its May

7, 2007 order that there has , indeed been a continuous failure to
respond to discovery requests and motions. The Court concludes that no lesser remedy is an appropriate response to these failures.

Plaintiff acknowledges she received a copy of Magistrate Judge Wiliam D. Wall' s April 3

2007 order. Plaintiff asserts she was never aware of Judge Spatt' s order dated May 7 , 2007.
Pollack' s motion to vacate the dismissal was denied by Judge Spatt on July 20 2007.
On or about September 25 , 2007 , the plaintiff then retained defendant Jason R. Corrado , P. C.

and Jason R. Corrado , Esq. (refereed to hereafter collective as Corrado). Plaintiff met with Corrado

at his law offce in mid October , 2007. He advised her that the appeal that Pollack fied was
defective because she failed to fie Forms C and D. On Januar
7

2008 she signed another retainer

agreement with Corrado. The plaintiff retained Corrado to seek to restore the appeal to the appellate

calendar , reversal of the dismissal of the Federal discrimination case from the trial calendar and
restoration to the trial calendar. Plaintiff asserts she paid a retainer of$5 000. 00 and neither Corrado
nor Rizzuto took any legal action with regard to the appeal. Plaintiff alleges that due to the legal

malpractice of defendants law firm , Pollack , Kotler , Corrado and Rizzuto , she suffered the loss of

right to litigate and would have prevailed in her underlying sexual harassment and employment
discrimination case. Moreover she asserts each defendant breached the respective duty owed to her

resulting in damages.

To establish a cause of action to recover damages for legal malpractice , a plaintiff
must prove "that the defendant-attorney failed to exercise that degree of care , skil and dilgence

commonly possessed by a member of the legal community, "

and " that

the defendant-attorney

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negligence was a proximate cause of damages.

(See DeNatale

Santangelo 65 AD3d 1006). To

succeed on a motion for summar judgment , the defendant must establish that the plaintiff is unable to prove at least one of the essential elements of the cause of action sounding in legal malpractice
(see Leone Silver

Silver, LLP

62 AD3d 962;

Suydam

v 0

Neil

276 AD2d 549;

Ostriker

Taylor, Atkins

Ostrow 258 AD2d 572).

The Corrado defendants argue that the dismissal of the discrimination action was caused
solely by the action of defendant Pollack. Corrado asserts a motion to vacate had already been made
and a second motion could not be made while an appeal was already pending.

Corrado contends that
circumstances "

only where an aggrieved client can establish the presence of " extraordinar
there be a chance of prevailng
on the appeal and

would

Judge Spatt had expressly ruled that " extraordinar

circumstances " were not present.
The two dismissals ofplaintiffs

lawsuit (at district cour and at the appellate level)
Pollack. For almost two

were the result of the actions of plaintiff s initial counsel , co- defendant

years , plaintiff and her prior counsel , co- defendant Pollack failed to provide court-ordered discovery

and even failed to appear at court-ordered conferences. Judge Wall, in his lengthy 48 page order concluded that co- defendant Pollack' s behavior was " undeniably negligent." . Plaintiff appealed
Judge Wall' s

order to Judge Spatt who adopted Judge Wall' s order and reiterated that defendant

Pollack was negligent. In so holding, Judge Spatt used language such as " numerous late filings persistent failures counsel' s negligence irrational and bizare claims " and " reckless maner
Appeals were taken by co- defendant
appropriate forms. The appeal was dismissed.

Pollack and once again ,
(See

co- defendant Pollack failed to file the

Exhibit "

, motion- in-chief).

In July 2007 , plaintiff appealed the Order of Dismissal to the United States Court of Appeals

for the Second Circuit by notice fied by Pollack. However , Pollack failed to fie
were required to be fied with the appeal. In October 2007, the

Forms C and

D that

Second Circuit issued an order to

show cause which provided that the appeal would be dismissed for failing to file Forms C and D.
Corrado , who was retained by plaintiff after her case had been dismissed , to try and undo the har

caused by Pollack. The Second Circuit denied the application and as such Corrado was unable to
reverse the dismissal of the action caused by Pollack' s actions.

Although summar judgment is a drastic remedy

(Andre

Pomeroy,

35 NY2d 361),

nevertheless a " court must evaluate whether the alleged factual issues presented are genuine or
unsubstantiated" (Assing

United Rubber Supply Co., Inc.

126 AD2d 590;

see Rotuba Extruders

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Ceppos 46 NY2d 233 231) and where there is nothing left to be resolved at trial , the case should
be sumarily decided (Andre Pomeroy, supra

at 364). Notably, bald conclusory assertions , even
judgment (see Spodek

if believable , are not enough to defeat a motion for sumar
Dev. Assocs.

Park Property

263 AD2d 478). " ' (A)verments merely stating conclusions , of fact or of law , are
(Banco Popular North America

insufficient" to " ' defeat summary judgment.' "
Management, Inc. 1 NY3d 381 383 , quoting from
Assn.,

Victory Taxi
County Fed Sav.

MaUad Constr. Corp.

Loan

32 NY2d 285 290). The plaintiffhas failed to demonstrate or rebut the documentar evidence

that but for the negligence of Corrado , the plaintiff would have been successful in vacating the order
of Judge Spatt (see Leone Silver

Silver, LLP

62 AD3d 962;

Suydam

v 0

Neil 276 AD2d 549;

Ostriker

Taylor, Atkins

Ostrow 258 AD2d 572).

The motion by Corrado to dismiss the complaint as to Corrado is granted. Jason R. Corrado

C. and Jason R. Corrado , Esq. shall be deleted as par defendants.

Not withstanding anything to the contrar,

should the

plaintiff feel that she is entitled to a

refud for all or par of the retainer paid to Corrado, she is not precluded from seeking relief in the
Nassau County District Court.
Defendant Rizzuto in support of his motion for summar judgment argues Rizzuto was never

retained by the plaintiff. Rizzuto acknowledges he had an employee/employer relationship with defendant Corrado , but that relationship only arose in August 2008. Plaintiff has failed to rebut
Rizzuto s claim that he never had any communications with or received any compensation from the

plaintiff for legal services allegedly performed. Plaintiff has failed to rebut Rizzuto prima facie (see Friends of showing that no factual dispute exists requiring a trial as to defendant Rizzuto
Animals, Inc. V Associated Fur Mfrs. , Inc. 46 NY2d 1065). Conclusory statements are insufficient
(Sofsky Rosenberg,

163 AD2d 240 , affd 76 NY2d 927;

Zuckerman

City of New York 49 NY2d

557).

Rizzuto s motion for summar judgment is granted. Philp
a part defendant.

Rizzuto , P. C.

shall be deleted as

In support of their motion for summary judgment the law firm and Kotler defendants argue
that the law firm was dissolved on or about December 25 2005 , and that the alleged malpractice of

defendant Pollack could not have occurred until sometime in 2006 when the firm was dissolved.
Prior to the decision of the Magistrate only defendant Pollack was listed as the attorney of record on

all court fiings. Moreover , Kottler asserts she never represented the plaintiff in any capacity.

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Pollack moved her law office to Riverhead. Kotler opened her own offce in New York City. Kotler

claims all the law firm clients were notified of the dissolution. In further proof of the dissolution
Kotler submitted copies ofletters she sent to the landlord, the New York State Deparment of Labor

cancellation requests from various insurance carriers and letters to various vendors advising them
that the law firm was dissolved. Kotler claims she sent a letter to the plaintiff notifying her of the

dissolution ofthe law firm but submits no letters in evidential form substantiating the claim that the

plaintiff had actual notice.

Issue finding, rather than issue determination, is key to sumar
Family Trust
Co.
271 AD2d 643; 10 AD3d 656; Greco v.

judgment (in re

Cuttitto

Posilico

290 AD2d 532;

Gniewek

Consolidated Edison

Judice

DeAngelo 272 AD2d 583). The court should refrain from making
(see s.J
Capelin Assoc

credibility determinations

Globe Mfg. Corp. 34 NY2d 338 , 341;
Greco Posillco, supra; Petri

Surdo

Albany Collsion Supply, Inc.

8 AD3d 655;

Half Of/Cards, Inc.

284 AD2d 444 , 445) and the papers should be scrutinized carefully in the light most favorable to the

par

opposing the motion

(Glover

City of New York 298 AD2d 428). Kotler s attorneys fuher

argue that although the plaintiff admits that she had suspicions that Kotler and Pollack were no
longer parners , she never contacted Ms. Kotler to confirm her suspicions to discuss the case or to

advise her that she was having difficulties with Ms. Pollack. Moreover Kotler asserts the plaintiff does not indicate that she reached out to Kotler (or even Pollack) at P&K' s New York City office
to find out why Pollack was not returning the plaintiff s calls. In summar the attormeys for Kotler contend that the plaintiff did not contact Kotler because her suspicions about the dissolution ofP&K

were confirmed long before that time and plaintiff was fully aware that only Pollack was
representing her after Februar
motion to dismiss.
2005. There

are issues of fact precluding the granting of Kotler

Where breach of contract , negligent misrepresentation or fraud claims are duplicative of a
legal malpractice claim , the breach of contract and negligent misrepresentation claims must be
dismisse

(see , e.

, Sitar

Sitar

50 AD3d 667;

Amodeo

Kolodny,

, 35 AD3d 773;

AmBase

Corp. V Davis Polk

Wardwell; Ferdinand

Crecca

Blair

5 AD3d 538;

Miszko

Leeds &

Morell 3 AD3d 726). Consequently only as to defendant Kotler the breach of contract and negligent misrepresentation claims are dismissed. Moreover , plaintiffs Judiciary Law and fraud
claims only against the law firm and Kotler are dismissed (see Judiciary Law 9487;

Michalic by

Nakovics

Klat

128 AD2d 505).

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Plaintiff may proceed against the law firm and co-defendant Kotler only on the cause of
action alleging legal malpractice.
A Preliminar Conference
Conference par,
(see 22 NYCRR

202. 12) shall be held at the Preliminar
day of

located at the Nassau County Supreme Court on the 18th

Febru, 2010 , at

9:00 AM. This directive , with respect to the date of the Conference , is subject to the right of the
Clerk to fix an alternate date should scheduling require. The attorneys for the plaitiff
shall serve a

copy of this order on the Preliminar

Conference Clerk and the attorneys for the plaitiffs.

This decision is the order of the Cour.
DATED: February 1 2010

ON.
To:

ARnlM.
J. S. C.

..'1E RE"

Attorney for Plaintiff SULLIVAN PAPAINBLOCKMCGRATH & CANNAVO, PC 55 Mineola Blvd. Mineola, NY 11501

Attorney for Defendant/Corrado fES

RIVKN RADLER LLP

0"

10

926 RexCorp. Plaza
. Uniondale , New York 11556NASS U

COUN1'l

Attorney for DefendantlRuto PIDLIP J. RIZZUTO P.
One Old Country Road , Suite 285 Carle Place , New York 11514

CQUNT'

CLER(SOFiCE

Attorney for Defendant/Pollack

TRAUB LIEBERMAN STRAUS &
SHREWSBERRY LLP Mid- Westchester Executive Park Seven Skyline Drive
Hawthorne, New York 105321

Attorney for Defendants/Pollack &

Kotler
CONTIN, L. 1001 Franklin Avenue Garden City, New York 11530
L'ABBATE, BALKAN, COLA VITA &



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