Opinion
Index No. 151262/2019 Motion Seq. No. 005
03-03-2023
JAMILA AAGLANE, Plaintiff, v. ISHRAT SAMI, Defendant.
Unpublished Opinion
MOTION DATE 03/28/2022
DECISION + ORDER ON MOTION
MARY V. ROSADO, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 005) 82, 83, 84, 85, 86, 87,88,89,90,91,92,93 were read on this motion to/for MISCELLANEOUS.
Upon the foregoing documents, and after oral argument, which was held on December 20, 2022, where David Turchi, Esq. appeared for non-party Shailender Khitri ("Khitri"), Kenneth McCallion Esq. appeared for Plaintiff Jamila Aaglane ("Aaglane" or "Plaintiff) and Johanne Nicolas, Esq. appeared for Defendant Ishrat Sami, Esq. ("Defendant"), Defendant's motion seeking a joint trial of this legal malpractice action with a civil court action wherein Defendant is seeking attorneys' fees from Khitri is denied.
I. Factual and Procedural Discussion
This case was commenced on February 5, 2019 and arises out of Defendant's alleged malpractice during the course of her representation of Plaintiff in her divorce action against nonparty Khitri (NYSCEF Doc. 1). On January 8, 2021, Defendant moved for summary judgment dismissing Plaintiffs Complaint (NYSCEF Doc. 9 or "Mot. Seq. 001") Plaintiff cross-moved seeking to compel Defendant to respond to certain discovery demands (NYSCEF Doc. 11). On October 18, 2021, the Hon. Alexander Tisch denied Defendant's motion for summary judgment, granted Plaintiffs cross-motion to compel, and ordered the parties to appear for a preliminary conference (NYSCEF Doc. 43). Defendant then filed a proposed order to show cause on January 5, 2022, asking the Hon. Alexander Tisch to vacate his prior order denying summary judgment (NYSCEF Doc. 58). The proposed order to show cause was declined on January 13, 2022 (NYSCEF Doc. 62 or "Mot. Seq. 002"). On January 14, 2022, Defendant then filed a motion for the prior order denying summary judgment to be vacated (NYSCEF Doc. 63 or "Mot. Seq. 003"). Plaintiff cross-moved for sanctions to be imposed against Defendant (NYSCEF Doc. 67). The case was subsequently transferred to this Part.
On February 18, 2022, non-party Khitri filed a proposed order to show cause seeking to seal the docket (NYSCEF Doc. 73 or "Mot. Seq. 004"). Khitri's order to show cause was signed on March 3, 2022 (NYSCEF Doc. 77). On March 10, 2022, this Court denied Khitri's motion to seal for failure to show good cause (NYSCEF Doc. 81).
Then, on March 14,2022, Defendant filed the instant motion seeking to join this trial with her civil court action against Khitri seeking attorneys' fees (NYSCEF Doc. 82 or "Mot. Seq. 005"). Meanwhile, on April 8, 2022, Khitri filed a motion to reargue this Court's decision denying his request to seal the docket (NYSCEF Doc. 97 or "Mot. Seq. 006). On October 23, 2022, Defendant filed a motion against Plaintiff seeking sanctions for failure to provide discovery (NYSCEF Doc. 114 or "Mot. Seq. 007).
On November 4, 2022, this Court denied Mot. Seq. 007 as discovery motions are not allowed in Part 33 without leave of the Court (NYSCEF Doc. 120). After oral argument on Mot. Seq. 003, Mot. Seq. 005, and Mot. Seq. 006, which was held on December 20 and 21, 2022, Defendant withdrew her motion seeking to vacate Judge Tisch's prior order. The Court issued an Order reflecting Defendant's withdrawal of Mot. Seq. 003 (NYSCEF Doc. 126). The Court now turns to Mot. Seq. 005, which pertains to Defendant's motion seeking to join for trial this legal malpractice case with a Civil Court case against Khitri wherein Defendant seeks to recoup allegedly unpaid attorneys' fees.
II. Discussion
Defendant makes the instant motion pursuant to CPLR § 602(a) (NYSCEF Docs. 82-83). CPLR § 602(a) provides "when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue.. .and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Where cases involve different facts, witnesses, claims, injuries, and defendants "individual issues predominate... so as to preclude the direction of a joint trial" (Gillard v Reid, 145 A.D.3d 446 [1st Dept 2016] quoting Abbondandolo v Hitzig, 282 A.D.2d 224, 225 [1st Dept 2001]). Moreover, where actions are at different procedural postures a motion for a joint trial should not be granted (Maurer v Maurer, 96 A.D.3d 417, 417 [1st Dept 2012]). Further, where two actions involve different issues and disparate legal theories, it has been held there is a risk of confusing and "rendering the litigation unwieldy" (Kaladze v Ocean Park Acquisition, L.P., 203 A.D.3d 1151 [2d Dept 2022] citing Gillard at 446).
The instant action is a legal malpractice action by Plaintiff against Defendant, her former lawyer in a matrimonial action (NYSCEF Doc. 1). The factual issues have to do with Defendant's alleged abandonment of Plaintiff s case; alleged loss of critical documents belonging to Plaintiff, Defendant's alleged breach of confidentiality, Defendant's prolonged absence from the country on the eve of trial, Defendant's alleged failure to investigate key assets in the matrimonial action, Defendant's alleged misappropriation of client funds, Defendant's alleged failure to provide Plaintiff with a statement of client's rights and responsibilities, and Defendant's alleged lack of expertise and experience with contested divorce cases (NYSCEF Doc. 1 at ¶¶ 6-42). On the other hand, the case Defendant seeks to join for trial involves $5,000 in allegedly unpaid attorneys' fees which Khitri allegedly agreed to pay Defendant in an open court stipulation in the matrimonial action.
Here, the legal theories and issues are wholly separate. Moreover, the only party in common in the two actions is Defendant. Khitri is not a party to this action, and Plaintiff is not a party to the Civil Court action. Further, the Civil Court action is far more simple and seeks damages in a far lesser sum than the instant legal malpractice action, and for that reason is in Civil Court which is the designated forum for expedited relief in disputes over relatively minor sums. Here, the parties have made multiple discovery motions and it appears depositions have not even begun. The parties have failed to enter into any discovery orders since their preliminary conference order dated November 18, 2021. As such, the procedural postures of the two actions are completely different. These factors militate towards denying Defendant's motion.
Defendant cites to just one case in support of her motion - Rogin v Rogin, 90 A.D.3d 507 [1st Dept 2011]). However that case is distinguishable from the facts at bar. In Rogin, the First Department held that joinder of a rent-nonpayment action was warranted with an action seeking an injunction compelling an ex-husband to pay his ex-wife's rent. In that case, there were common issues as to who was responsible for payment of rent which warranted joinder. In our case, whether Defendant committed legal malpractice during her representation of Plaintiff is a wholly separate and unrelated issue from whether Khitri owes Defendant attorneys' fees pursuant to an open-court stipulation. As such, Defendant's motion is denied.
Accordingly, it is hereby, ORDERED that Defendant Ishrat Sami, Esq.'s motion seeking a joint trial is denied; and it is further
ORDERED that Plaintiff Jamila Aaglane and Defendant Ishrat Sami, Esq. are directed to submit a compliance conference order via NYSCEF and e-mail on or before March 15, 2023. In the event the parties are unable to agree to a proposed preliminary conference order, the parties shall appear for an in-person preliminary conference on March 22, 2023 at 9:30 a.m. in 60 Centre Street, Room 442; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this Decision and Order on all parties to this action with notice of entry.
This constitutes the Decision and Order of the Court.