Opinion
Index 156499/2021
02-16-2022
DANIEL TAVARES and LAURA TAVARES, Plaintiffs, v. CALCAGNO & ASSOCIATES, LLC, CALCAGNO & ASSOCIATES, PLLC, CALCAGNO & ASSOCIATES, INC., and CALCAGNO & ASSOCIATES ATTORNEYS AT LAW, PLLC, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN, Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN. J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 40 were read on this motion to/for DISMISS.
In this legal malpractice action commenced by plaintiffs Daniel Tavares and Laura Tavares, Calcagno & Associates, LLC, Calcagno & Associates, PLLC, Calcagno & Associates, Inc., and Calcagno & Associates Attorneys at Law, PLLC (collectively "defendants") move, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss the complaint. Plaintiffs oppose the motion and cross-move, pursuant to CPLR 2201, for a stay of this action. Defendants oppose the cross motion. After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the motions are decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND:
After he was injured in a construction accident on November 15, 2013, Daniel Tavares ("plaintiff) hired defendant Calcagno & Associates Attorneys at Law, LLC to represent him in a personal injury action commenced in this Court against Toll Brothers, Inc. a/k/a Toll GC, LLC a/k/a Toll GC II, LLC, Nagan Ex, Inc. ("Nagan"), Mildred Castanon ("Castanon"), and Civetta Cousins JV, LLC ("Civetta") under Ind. No. 159625/16 ("the underlying action") on November 15, 2016. Plaintiffs wife, Laura Tavares, asserted a claim for loss of consortium. Doc. 1 filed under Ind. No. 159625/16.
Plaintiffs do not allege the relationships, if any, between the various Calcagno entities named in this action.
In November 2018, "Toll Brothers, Inc. s/h/a Toll Brothers, Inc. a/k/a Toll GC LLC a/k/a Toll GC II, LLC" and Castanon moved to dismiss the underlying action pursuant to CPLR 306-b, asserting that they had not been served within 120 days after the complaint was filed. Doc. 8 filed under Ind. No. 159625/16. By order entered March 8, 2019, this Court (Nock, J.) granted the motion and dismissed the complaint in the underlying action as against Toll Brothers, Inc. and Castanon. Doc. 27 filed under Ind. No. 159625/16. In so holding, Justice Nock held that "[t]here is no dispute that plaintiffs failed to serve defendants within 120 days as required by CPLR 306-b, or that plaintiffs even attempted to serve the defendants within that time." Id.
Plaintiffs thereafter moved to renew and reargue the motion by Toll Brothers, Inc. and Castanon in the underlying matter. Docs. 29 and 30 filed under Ind. No. 159625/16. By decision and order entered January 14, 2020, Justice Nock granted that branch of the motion seeking reargument and, upon reargument, reinstated the claims against Toll Brothers, Inc. and Castanon, reasoning that plaintiffs had "directed] the court's attention to portions of their initial motion papers, submitted in opposition to defendants' motion to dismiss [in the underlying matter], that detailed] serious, severe, and persisting personal and professional problems that plagued plaintiffs' counsel subsequent to the commencement of [the underlying] action in 2016, causing said counsel to be distracted from the service deadlines applicable in this action." Doc. 47 filed under Ind. No. 159625/16. Justice Nock also noted that, although service on Toll Brothers, Inc. and Castanon had been untimely, it was otherwise proper, and that it is the policy of the courts of this State to determine matters on the merits. Id. No appeal was taken from Justice Nock's order.
In July 2020, Civetta moved for summary judgment (mot. seq. 003) in the underlying action. Docs. 56-63 filed under Ind. No. 159625/16. In September 2020, Toll Brothers, Inc. cross-moved for summary judgment (mot. seq. 003) on the ground that it was not the owner of, or the general contractor at, the site of plaintiff s accident. Docs. 66-75 filed under Ind. No. 159625/16. Although Toll Brothers, Inc. conceded that it was served with the summons and complaint in the underlying action, it maintained that it, Toll GC LLC, and Toll GC II LLC were three distinct entities and that the latter two were not served with process. Doc. 67 filed under Ind. No. 159625/16, at pars. 6-7.
The claims against Civetta in the underlying action were discontinued on October 30, 2020, thereby resolving its motion for summary judgment (mot. seq. 003). Doc. 77 filed under Ind. No. 159625/16. However, the cross motion by Toll Brothers, Inc. (mot. seq. 003) remained pending.
By order dated February 12, 2021, this Court (Nock, J.) granted the motion by Toll Brothers, Inc. for summary judgment dismissing the complaint "on the ground of no opposition". Doc. 95 filed under Ind. No. 159625/16. However, by order filed July 29, 2021, Justice Nock vacated his February 12, 2021 order, stating that he had erred in granting the motion without opposition since he "had granted an adjournment to allow opposition." Id. Justice Nock also directed that oral argument of the motion was to be conducted on March 9, 2021, on which date it was held. Docs. 95 and 97 filed under Ind. No. 159625/16. At oral argument, counsel for Toll Brothers, Inc. argued that his client "had absolutely no connection to the project" during which plaintiff was injured. Doc. 97 filed under Ind. No. 159625/16. Plaintiffs' counsel sought leave to amend the complaint to name Toll GC LLC and Toll GC II LLC as defendants, maintaining that they were subsidiaries of Toll Brothers, Inc. and that the claims against them related back to those asserted against Toll Brothers, Inc. for statute of limitations purposes. Doc. 97 filed under Ind. No. 159625/16 at 8. However, plaintiffs' counsel has not made a formal motion to amend the complaint. To date, no decision has been rendered regarding Toll Brothers, Inc.'s cross motion for summary judgment in the underlying action.
In July 2021, plaintiffs commenced the captioned action against defendants, alleging that they committed legal malpractice by, inter alia, failing to timely serve Toll Brothers, Inc. and Castanon in the underlying action pursuant to CPLR 306-b. Doc. 1 Plaintiffs further alleged that defendants failed to commence claims against Toll GC, LLC and Toll GC II, LLC in the underlying action within the applicable statute of limitations period. Doc. 1 at pars. 84-85.
Plaintiffs discontinued their claims against Castanon in the underlying action on or about August 20, 2021. Doc. 64 filed under Ind. No. 159625/16. Any claim of malpractice against defendants arising from untimely service of process on Toll Brothers, Inc. in the underlying action was rendered moot by Justice Nock's reinstatement of the claims against said defendant.
Defendants now move, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss the complaint in the captioned action. Docs. 11-20. In support of the motion, defendants argue that the complaint must be dismissed because plaintiffs fail to allege "but for" causation and do not allege facts setting forth actual or ascertainable damages. Docs 12, 20.
On October 1, 2021, plaintiffs amended their complaint to allege, inter alia, that they "would have prevailed [against Toll Brothers, Inc.] in the underlying personal injury action" had defendants "not committed negligence and legal malpractice" by failing to serve defendants Toll Brothers, Inc., Nagan, Castanon and Civetta in a timely fashion pursuant to CPLR 306-b. Doc. 24 at pars. 124-145. They further alleged that defendants committed malpractice by failing to commence a timely action against Toll GC, LLC and Toll GC II, LLC, that they would have prevailed against Toll GC, LLC and Toll GC II, LLC in the underlying action had defendants not committed negligence, and that, due to defendants' negligence, they "have lost the opportunity to recover damages for the injuries" alleged in the underlying action. Doc. 24 at pars. 140-148.
The claims against Civetta were discontinued on October 30, 2020. Doc. 77 filed under Ind. No. 159625/16.
Plaintiffs oppose defendants' motion on the ground that they are not required to demonstrate that they sustained actual and ascertainable damages because such damages can be inferred from their allegations. Doc. 27 at par. 20. Plaintiffs also cross-move, pursuant to CPLR 2201, for a stay of the captioned action pending a decision of Toll Brothers, Inc.'s cross motion, which remains pending in the underlying action. Doc. 26.
In reply, defendants argue, inter alia, that plaintiffs have not alleged any damages which can be reasonably inferred from any malpractice committed by defendants. Doc. 39.
LEGAL CONCLUSIONS:
It is well settled that, in determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court's task "is to determine whether plaintiffs' pleadings state a cause of action. The motion must be denied if from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law." (511 W. 232nd Owners Corp. v Jennifer Realty Corp., 98 N.Y.2d 144, 151-152 [2002]). The pleadings are to be afforded a "liberal construction," and the court is to "accord plaintiffs the benefit of every possible favorable inference." (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]).
Since the amended complaint adequately asserts the essential elements for a legal malpractice claim (i.e., that plaintiffs would have prevailed in the underlying action had defendants not negligently failed to name Toll GC, LLC and Toll GC II, LLC as defendants in that action, and that they incurred damages as a result of such negligence), this action should not be dismissed at the pleading stage (See Esterman v Law Off. of Gideon Stephen Schwartz, P.C., 2009 NY Slip Op 31523[U], * 12-13 [Sup Ct, NY County 2009] citing Greenwich v Markhoff, 234 A.D.2d 112, 114 [1st Dept 1996]). The only claim of malpractice which fails to state a claim against defendants is that arising from untimely service of process on Toll Brothers, Inc. in the underlying action pursuant to CPLR 306-b. This claim was rendered meritless by Justice Nock's reinstatement of the claims against said defendant. Any further discussion of the potential success of plaintiffs' underlying action and/or any possible malpractice by defendants is premature since that proceeding is still pending (See Esterman, supra).
Additionally, contrary to defendants' contention, the amended complaint is not subject to dismissal due to plaintiffs' failure to allege damages with specificity. "At this stage of the [litigation], plaintiff[s] need only plead allegations from which damages attributable to defendants' conduct 'might be reasonably inferred' (Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 A.D.2d 45, 45 [1st Dept 1993])." (Risk Control Assoc. Ins. Group v Maloof Lebowitz, Connahan & Oleske, P.C., 127 A.D.3d 500, 500 [1st Dept 2015]).
Additionally, "to the extent that the plaintiff[s'] action may be premature because, while the underlying action is pending, it cannot be determined whether the defendants'] alleged legal malpractice caused the plaintiff[s] to sustain damages", this Court, in its discretion, hereby stays this action pending a decision on Toll Brothers, Inc.'s motion for summary judgment in the underlying action (Spitzer v Newman, 163 A.D.3d 1026, 1028 [2d Dept 2018] [citations omitted]). This is because that decision may shed light on whether defendants should have named Toll GC, LLC and/or Toll GC II, LLC as direct defendants in the underlying matter.
Accordingly, it is hereby:
ORDERED that the motion by defendants Calcagno & Associates, LLC, Calcagno & Associates, PLLC, Calcagno & Associates, Inc., and Calcagno & Associates Attorneys at Law, PLLC seeking to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is granted to the extent that any claims for malpractice arising from said defendants' failure to timely serve Toll Brothers, Inc. with process pursuant to CPLR 306-b in the action commenced by plaintiffs in this Court under Ind. No. 159625/16 is dismissed, and the motion is otherwise denied; and it is further
ORDERED that the cross motion by plaintiffs Daniel Tavares and Laura Tavares seeking to stay this action pursuant to CPLR 2201 pending a decision of the motion by Toll Brothers, Inc. for summary judgment (mot. seq. 003) in the action commenced by plaintiffs in this Court under Ind. No. 159625/16 is granted.