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Ursprung v Verkowitz 2011 NY Slip Op 31723(U) June 14, 2011 Supreme Court, Nassau County Docket Number: 1125/11 Judge: Anthony L. Parga 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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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU

PRESENT:

HON. ANTHONY L. PARGA JUSTICE

PART 8
DONNA URSPRUNG,
INDEX NO. 1125/11

Plaintiff
-against-

MOTION DATE: 4/22/11 SEQUENCE NO. 001, 002
CHARLENE K. VERKOWITZ, ESQ.
Defendant.
Notice of Motion, Afr. & Exs...................................................................................... fLaw............................... ............................. " """"1" ................... I.... M em 0 ran d urn Aff & Exs""'''''''''''''''''''''8:'''''''''''''''' Notice of Cross- Motion,

Affirmation in 0

osition and Re

I &

Exs............................................................ .

Upon the foregoing papers , it is ordered that the motion by defendant (Seq. 001) for an order dismissing plaintiffs complaint, pursuant to CPLR 993211(a)(5) and (7) and CPLR 9214(6), is granted. Plaintiffs cross-motion (Seq. 002) for an order joining this action with the v. bearing Nassau County index Verkowitz Ursprung, prior pending related action entitled number 665/11 , for the puroses of a joint trial , is denied as moot. The following facts are taen from pleadings and submitted papers and do not constitute findings of fact by this Cour. This is an action for legal malpractice. On July 19, 2002 , attorney Verkowitz was retained by plaintiff Donna Ursprug (hereinafter " Ursprung ) to represent her in a divorce proceeding against her now ex- husband , Christopher Ursprung. The matrimonial action was settled in late 2003 , and a Judgment of Divorce was entered on Februar 27 2004. Defendant Verkowitz contends that the Judgment of Divorce ended the matrimonial action and her representation ofUrsprung in the matrimonial action. On or about April 17 , 2007 , three years after the matrimonial action was concluded , and after Chrstopher Ursprug died in October 2006 , Ursprug was named as a defendant in an insurance action venued in New York County Supreme Court , which was commenced by the Executor of Chrstopher Ursprug s estate , Robert Vermylen , and Chrstopher Ursprug s second

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wife , Diane Ursprug. The insurance action also named Genworth Life Insurance Company of New York as a co- defendant. Defendant contends that all causes of action asserted in the insurance action pertained to Chrstopher Ursprug s changes to the beneficiar designation of his life insurance policy. On May 8 , 2007 , Ursprung retained attorney Verkowitz , by way of a new and separate retainer agreement , to defend her in the insurance action. The insurance action was to determine which beneficiar designation would apply to Christopher Ursprug s life insurance policy. Said action was eventually settled between the paries by dividing the insurance proceeds. Pursuant to
the settlement ,

plaintiffUrsprug was to receive $290 360.25.

Defendant Verkowitz contends that after the settlement of the insurance action , an issue arose regarding the outstanding legal fees allegedly owed by Ursprug to Verkowitz. Verkowitz argues that afer she brought suit for payment of legal fees , the plaintiff instituted the within legal malpractice action. Plaintiff s complaint alleges that Verkowitz committed legal malpractice in the underlying matrimonial action , but defendant argues that plaintiffs legal malpractice action is bared by the thee year statute of limitations which began to ru upon the entr of the Judgment of Divorce on Februar 27 2004. Since the complaint in the instant matter was not filed until Januar 24 2011 , defendant argues that the action is time bared by the expiration of the statute of limitations. In addition, defendant argues that the plaintiff failed to properly plead a cause of action for legal malpractice , and as such , should be dismissed pursuant to. CPRL 3211 (a)(7) for failure to state a cause of action. Defendant contends that the complaint does not set forth specific factual allegations which show that "but for" counsel' s representation, there would have been a more favorable outcome in the underlying matter. Defendant lastly submits that plaintiffs action should be dismissed as there is a prior action pending in which plaintiff asserted a counterclaim for legal malpractice arising from the same set of circumstances. Plaintiff opposes defendant' s motion to dismiss on each of its grounds , arguing, inter alia that Verkowitz failed to properly draft Ursprug s divorce agreement , failed to properly advise Ursprug as to the legal consequences of certain provisions of the divorce agreement , and failed to identify the legal consequences of the terms of the divorce agreement. Plaintiff contends that the insurance action was begun due to the legal malpractice of the defendant Verkowitz in the underlying divorce settlement wherein Verkowitz represented the Ursprung. Ursprug argues that in the underlying divorce settlement, she was supposed to be named as a beneficiar of her former husband' s life insurance policy that would cover the spousal maintenance payments remaining in the event that her former husband died prior to the
terminatiQn of his requirement to pay spousal maintenance. Ursprug claims that the clause , as

written in the September 18 , 2003 divorce settlement agreement , instead only required him to

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maintain a life insurance policy that named her as a trustee for her two daughters. Ursprug also

claims that the insurance litigation was a direct result ofVerkowitz s negligence in drafting the subject divorce settlement agreement and then improperly advising Ursprug of its contents. As a result of ths negligence , and on the advise ofVerkowitz , Ursprug claims that she refused to execute the necessar documents required by Genwort Life Insurance Company to payout the beneficiares of the policy and that she was ultimately sued because of it. Ursprug contends that Verkowitz' s defense of the insurance litigation entailed Verkowitz attempting to obtain a judicial constrction of the divorce settlement agreement that would determine that the insurance provision contained therein was intended to cover the spousal maintenance owed to the plaintiff in the event that her ex-husband died. Ursprug argues that the statute of limitations has not expired to bring the within legal malpractice action , and that the within action is timely commenced , because the continuous representation doctrne applies to this matter and tolls the applicable statute of limitations. Ursprug argues that Verkowitz represented Ursprug continuously from 2002 , when she was

fuer

retained to act as her divorce attorney, to the present date. Ursprug argues that the attorney

portion of the settlement proceeds from the insurance action. Ursprug also argues that the continued representation was not a continuing general relationship, but rather, it was specific to the divorce settlement and the litigation that allegedly arose from it , which gives rise to the malpractice claim herein. Ursprug argues that an ongoing and continuous professional relationship from 2002 to the present is
holding a

client relationship has not ceased as Verkowitz is stil

sent from Verkowitz to Ursprug, the letters containing inquiries about Ursprug s ex- husband' s Qualified Domestic Relations Order (" QDRO" ) sent between Ursprug and Verkowitz , the letters sent by Verkowitz to the County Clerk in connection with the filing of the QDRO in connection with the divorce , and the letters sent between Ursprug and Verkowitz regarding Ursprug s questions about the divorce settlement agreement and the Genwoth Life Insurance policy. Ursprung contends that said communications are sufficient to demonstrate that the continuous representation doctrine applies and that the within legal malpractice action is not time bared. Plaintiff fuher argues that her complaint sufficiently sets forth a cause of action for legal malpractice and should not be dismissed upon
demonstrated by the biling invoices

said grounds.

CPLR 9214 provides that an action for legal malpractice , whether sounding in tort or breach of contract , must be commenced within three years from the date that the malpractice occurs. It is well settled that the period of limitations in a legal malpractice action begins to
when the malpractice is committed. 2d 108 (2d Dept. 1996); Glamm

(See, Boyd v. Gering, Gross Gross 226 A.D.2d 489 , 641 v. Allen 453 N. 2d 674 , 439 N. E.2d 390 (1982)).

Pursuant to the doctrine of continuous representation, however , the statute oflimitations period

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does not begin to run until the attorney ceases representing the client on the matter which is the subject of the malpractice action. (See , Shumsky v. Eisenstein 96 N. 2d 164 , 750 N. 2d 67 (2001); Pilero v. Adler Stavros 282 A. 2d 511 , 723 N. S.2d 91 (2d Dept. 2001) (holding that pursuant to the continuous representation doctrine , the statute of limitations for causes of action sounding in legal malpractice is tolled until the attorney s ongoing representation concerning the matter out of which the claim arises is completed). The continuous representation must bein connection with the paricular transaction which is the subject of the action and not merely during the continuation of a general professional relationship. Michaels, (Zaref v. Berk st Dept. 1993)). For the continuous representation 192 AD. 2d 346 595 N. 2d 772 (I doctrine to apply to an action sounding in legal malpractice by an attorney, there must be clear indicia of an ongoing, continuous , developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice. (Luk Lamel/en U. Kupplungbau GmbH v. Lerner 166 AD. 2d 505 , 560 N. S.2d
787 (2d Dept. 1990)).

Contrar to Ursprug s contentions , the doctrine of continuous representation is
inapplicable to toll the statute of limitations in the instant action as the matrimonial action durng which attorney Verkowitz allegedly committed the malpractice was concluded on Februar 27 2004 , and Verkowitz s representation of the plaintiff for the matrmonial action ceased at that time. The paricular transaction which is the subject of this malpractice action had ended in 2004 , even if one accepts that a general professional relationship continued. (See, Zarefv. Berk & Michaels , 192 A.D. 2d 346 595 N. Y.S. 2d 772 (Ist Dept. 1993)). Furher , as the plaintiff was no longer " acutely aware of such need for fuher representation on the specific subject matter underlying the malpractice claim " the defendant' s representation on the matter had ceased at t,at time. (Shumsky Eisenstein 96 N. 2d 164 , 750 N. E.2d 67 (2001); Carnevali Herman 293 AD.2d 698 , 742 N. 2d 85 (2d Dept. 2002)). Attorney Verkowitz representation ofUrsprug in the subsequent insurance matter was pursuant to a separate and subsequent retainer agreement , which was entered three years after the matrimonial action which was concluded on Februar 27 2004. As such , the within action for legal malpractice is bared by the expiration of the statute of limitations. Even accepting plaintiffs arguments that attorney Verkowitz s inquiries regarding Chrstopher Ursprug s QDRO filings on behalf ofUrsprug are evidence ofa continuation of the matrimonial matter, the administrative tasks related to the QDRO were completed on September 12 2006 , when Verkowitz forwarded a copy of the August 18 2006 QDRO order to Ursprug. Accordingly, even accepting the later date of September 12 , 2006 as the conclusion of Verkowitz s representation ofUrsprug for the matrimonial action , the within legal malpractice action , fied on Januar 24 2011 , is bared by the statute oflimitations.

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Furermore , plaintiff s complaint fails to state a cause of action. To state a cause of
action to recover damages for legal malpractice , a plaintiff must allege: (1) that the attorney failed to exercise the ordinar reasonable skill and knowledge commonly possessed by a
member of the legal profession " and (2) that the attorney s breach of e duty proximately caused the plaintiff actual and ascertinable damages (Leder v. Spiegel 9 NY3d 836 , 837 , cert denied

Rowland 552 US 1257; See, Rudolfv. Shayne, Dachs, Stanisci, Corker & Sauer 8 NY3d 438 442). Even if a plaintiff establishes the first prong, however, the plaintiff must stil demonstrate that he or she would have succeeded on the merits of the action but for
sub nom. Spiegel v.

Gabor & Gabor 61 AD3d 646 , 648; , 28 AD3d 1028 1030- 31; see also, Brodeur v. Nelson , 201 AD2d 549 550). " (M)ere speculation abouta loss resulting from an attorney s alleged omission is insufficient to sustain a prima facie case of legal malpractice (Sicilano v. Forchell & Forchell 17 AD3d 343 345; see Dupree v. Voorhees 68 AD3d 810 812- 813; Plymouth Org. Inc. v. Silverman, Collura Chernis , 21 AD3d 464; Giambrone v. Bank ofN. Y. 253 AD2d
v. McCluskey

the attorney s negligence.

(See, Hamoudeh

Mandel 62 AD3d 948 , 949; Peakv. Bartlett, Pontif Stewart Rhodes Hayes 18 AD3d 979; Raphael v. Clune, White

786).

On a motion to dismiss for failure to state a cause of action, a trial cour must determine accepting as true the factual averments of the complaint and according the plaintiff every benefit of all favorable inferences , whether the plaintiff can succeed upon any reasonable view of the
62 A.D. 3d 786 880 N. 2d 293 (2d Dept. 2009)). Plaitiffs complaint herein fails to allege that her attorney s negligence proximately caused her to sustain actual and ascertinable damages , as required to state a cause of action for legal malpractice. (Id). Even accepting all of the plaintiffs allegations as true , Ursrpung s complaint fails to state a cognizable cause of action for legal malpractice. Accordingly, defendant Verkowitz' s motion is granted and plaintiffs complaint is hereby dismissed in its entirety. As such , plaintiffs cross-motion for an order joining this action with
facts stated.

(Waldv. Berwitz

the prior pending action entitled

Ursprung, bearng 665/11 , for the puroses of a joint trial , is denied as moot.
Verkowitz v.

Nassau County index number

Dated: June 14

2011

Cc:

Michael R. Walker , Esq. Gallagher , Walker , Bianco & P1astaas , LLP

98 Wilis Avenue Mineola, NY 11501

ENTERED
JUN 1 6 2011
tj

coUr'niCLt:KK' S OFFICE

.l

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Lewis Brisbois Bisgaard & Smith , LLP 77 Water Street, Suite 2100 New York , NY 10005
Charlene K. Verkowitz , Esq. 561 Lakevile Road New Hyde Park, NY 11040



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