John W. Grace, Respondent,v.Michael R. Law, et al., Appellants.

Brief

N.Y.September 17, 2014

To be Argued by: KEVIN E. HULSLANDER (Time Requested: 15 Minutes) APL-2013-00276 Court of Appeals of the State of New York JOHN W. GRACE, Plaintiff-Respondent, – against – MICHAEL R. LAW, PHILLIPS LYTLE, LLP, ROBERT L. BRENNA, JR., and BRENNA, BRENNA & BOYCE, PLLC, Defendants-Appellants. ____________ Appellate Division Docket No. CA 13-00036 Erie County Clerk’s Index No. I 2011-004732 BRIEF FOR DEFENDANTS-APPELLANTS ROBERT L. BRENNA, JR., AND BRENNA, BRENNA & BOYCE, PLLC SMITH, SOVIK, KENDRICK & SUGNET, P.C. Kevin E. Hulslander, Esq. Attorneys for Defendants-Appellants, Robert L. Brenna, Jr., and Brenna, Brenna & Boyce, PLLC 250 South Clinton Street, Suite 600 Syracuse, New York 13202-1252 Tel.: (315) 474-2911 Fax: (315) 474-6015 November 22, 2013 i CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f), Appellants state that Brenna, Brenna & Boyce is a professional limited liability corporation. It has no parents, subsidiaries, or affiliates. ii TABLE OF CONTENTS Page CORPORATE DISCLOSURE ......................................................................... i TABLE OF AUTHORITIES ............................................................................ iv STATEMENT OF JURISDICTION................................................................. 1 QUESTIONS PRESENTED ............................................................................. 2 PRELIMINARY STATEMENT ...................................................................... 3 STATEMENT OF FACTS ............................................................................... 5 ARGUMENT POINT I IF THE COURT FINDS THAT THIS IS NOT A CASE OF FIRST IMPRESSION, THEN RUPERT AND RODRIGUEZ CONTROL, AND PLAINTIFF’S CLAIM FOR LEGAL MALPRACTICE CANNOT PROCEED BECAUSE PLAINTIFF DIRECTED THE TERMINATION OF THE UNDERLYING CASE .......... 23 A. Plaintiff does not dispute that he voluntarily discontinued his underlying action against the Veterans’ Administration while he still had a pending issue for trial and a viable appeal of Judge Siragusa’s decision .......................................... 23 B. New York jurisprudence dictates that Plaintiff cannot maintain an action for legal malpractice because Plaintiff himself directed the voluntary termination of the underlying FTCA case .................. 26 POINT II IF THE COURT FINDS THAT THIS IS A CASE OF FIRST IMPRESSION, THEN IT SHOULD FIND THAT A PARTY WAIVES HIS RIGHT TO COMMENCE A LEGAL MALPRACTICE ACTION WHERE HE TERMINATES AN UNDERLYING ACTION IN WHICH A CAUSE OF ACTION IS RIPE FOR TRIAL AND A MERITORIOUS APPEAL IS PENDING ...................................................................... 31 iii A. An examination of the merits of the pending appeal is not necessary; because Plaintiff forfeited a pending cause of action that was ripe for trial, he abandoned his right to bring a cause of action for legal malpractice ....................... 32 B. If the Court examines the merits of the pending appeal, the appropriate standard of review is whether such an appeal was meritorious; because Plaintiff’s pending appeal had merit, he forfeited his legal malpractice action by discontinuing the action ............................................. 33 1. Defendants do not advocate for a bright- line standard that would require all appeals to be exhausted before a legal malpractice action can be brought.......................................... 33 2. A standard by which a plaintiff never waives the right to sue for legal malpractice where an appeal is pending is inappropriate, and not fully supported by caselaw ........................... 34 3. The consensus of current jurisprudence favors an examination of the merits of a potential appeal; the appropriate standard is one where a plaintiff forfeits his opportunity to sue for legal malpractice when he fails to pursue a meritorious appeal that a reasonable lawyer would pursue........................................... 35 4. The ‘meritorious’ or ‘reasonably prudent party’ standard is preferable to the ‘likelihood of success’ standard, because the latter is an invitation to speculation ................................. 37 POINT III THE PUBLIC POLICY CONCERNS RAISED BY THIS MATTER NECESSITATE A FINDING IN FAVOR OF THE APPELLANTS ..................................... 39 CONCLUSION ................................................................................................. 43 ADDENDUM A ............................................................................................... A-1 iv TABLE OF AUTHORITIES Page Cases: Abdell v. City of New York, 759 F.Supp.2d 450 [S.D. NY 2010] ............................................................ 14 Allen Decorating, Inc. v. Oxendine, 225 Ga.App. 84, 483 S.E.2d 298 [1997] .......................................................... 32 Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] .................................................................................. 24 Andre v. Pomeroy, 35 N.Y.2d 361 [1974] .................................................................................. 23 Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24 [1996] ...................................................................................... 34 Brassette v. Exnicios, 92 So.3d 1077 [2012] ....................................................................................... 35 Bravo v. U.S., 403 F.Supp.2d 1182 [S.D. Fla. 2005] .......................................................... 11, 13 Buran v. Coupal, 87 N.Y.2d 173 [1995] .................................................................................. 14, 15 Cole v. Tat-Sum Lee, 309 A.D.2d 1165 [4th Dept 2003] ................................................................ 16 Costa v. U.S. Dept. of Veteran's Affairs, 845 F.Supp. 64 [D.R.I. 1994] ............................................................... 10, 12, 13 Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga.App. 75, 653 S.E.2d 791 n.3 [2007] .................................................... 36 Duncan v. Klein, 313 Ga.App. 15, 720 S.E.2d 341 [2011] .......................................................... 36 Eastman v. Flor-Ohio, Ltd., 744 So.2d 499 [1999] .............................................................................. 31, 33, 34 Forest City Enters., Inc. v. Russo, 8 Misc.3d 151 [Sup Ct, New York County, 2005] ...................................... 26 Gamble v. U.S., 648 F.Supp. 438, 441 [N.D. Ohio 1986] ................................ 16 v Gazzola Bldg. Corp. v. Shapiro, 181 A.D.2d 718 [2d Dept 1992] .................................................................. 27 Gibbons v. Fronton, 661 F.Supp.2d 429 [S.D.N.Y. 2009] ........................................................... 15, 16 Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 [2002] ................................................ 31, 33, 34, 36, 37 Jones v. Law Firm of Hill and Ponton, 223 F. Supp.2d 1284, 1287 [M.D. Fla. 2002] .................................................. 32 Joseph v. Elan Motorsports Technologies Racing Corp., 638 F.3d 555 [7 th Cir. 2011] ........................................................................ 14 Kirbis v. LP Cimineli, 90 A.D.3d 1581 [4 th Dept 2011] .................................................................. 24 Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 130 S.Ct. 2485 [2010] ...................................................... 9, 14, 25 Lue v. Finkelstein & Partners, LLP, 67 A.D.3d 1187 [3d Dept 2009] .................................................................. 27 Matter of Santana v. New York State Thruway Auth., 92 Misc.2d 1 [Ct Cl 1977] ........................................................................... 35 MB Indus., LLC v. CNA Ins. Co., 74 So.3d 1173 [2011] ....................................................................................... 31, 35 Murray Warehouse, Inc. v. Abelove, 170 A.D.2d 1027 [4th Dept. 1991] .............................................................. 26 Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051 [Fla. Dist. Ct. App. 1991] ...................................................... 37 Persaud v. Darbeau, 13 A.D.3d 347 [2 nd Dept. 2004] ................................................................... 24 Plate v. State of New York, 92 Misc.2d 1033 [Ct Cl 1978] ..................................................................... 35 Raux v. City of Utica, 59 A.D.3d 984 [4 th Dept 2009] .................................................................... 24 Reinert v. Johnsburg, 99 A.D.2d 572 [3 rd Dept. 1984] ................................................................... 24 vi Rodriguez v. Fredericks, 213 A.D.2d 176 [1 st Dept 1995] ..................................................... 23, 26, 27, 30 Rosenhack v. State, 112 Misc.2d 967 [Ct Cl 1982] ..................................................................... 35 Rupert v. Gates & Adams, P.C., 83 A.D.3d 1393 [4 th Dept 2011] ................................... 21, 22, 23, 26, 27, 28, 30 Saussy v. Bonin, 2013 WL 4748236, at *4-*5 [La.App. 4 Cir. Sept. 4, 2013] ........................... 35 Schiavone v. Fortune, 106 S.Ct. 2379 [1986] .................................................................................. 15 Segall v. Segall, 632 So.2d 76 [1999] ......................................................................................... 31 Tivoli v. U.S., 1996 WL 1056005 [S.D.N.Y. Sep. 27, 1996], further action, 1997 WL 1047860 [S.D.N.Y. Oct. 31, 1997], aff'd 164 F.3d 619 [2d Cir. 1998] ................................................................................. 11, 12, 13 U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., 2013 WL 4505800, at *2 [D. Nev. 2013] ........................................................ 36, 37 U.S. v. Orleans, 425 U.S. 807 [1976] ..................................................................................... 10 Valdez ex rel. Donely, 518 F.3d 173 [2 nd Cir. 2008] ........................................................................ 16 Williams v. U.S., 2007 WL 951382 [S.D.N.Y. Mar. 22, 2007] ............................................... 13 Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] .................................................................................. 24 Statutes and Other Authorities: 22 NYCRR 1200.0, rule 3.1(a) .............................................................................. 20 CPLR 214-a ....................................................................................................... 15 FRCP 15(c)(B)&(C) .......................................................................................... 14 1 STATEMENT OF JURISDICTION This Court has jurisdiction to entertain this appeal and to review the questions raised pursuant to an Order of the Appellate Division, Fourth Department, entered September 27, 2013 (R. 469), which granted the motions of Defendants-Appellants Brenna; Brenna, Brenna & Boyce PLLC; Law, and Phillips Lytle, LLP for leave to appeal to this Court from a decision of the Fourth Department entered July 19, 2013 (R. 471-478), which affirmed the Supreme Court's denial of Defendants-Appellants' motion for summary judgment. (R. 9- 11). 2 QUESTIONS PRESENTED 1. Whether Supreme Court erred in denying Defendants' motion for summary judgment and whether the Fourth Department erred in affirming the decision of Supreme Court because Plaintiff voluntarily discontinued the underlying action on the advice of his current counsel in order to sue the Brenna Defendants for legal malpractice before the Brenna Defendants could try the case to verdict and before they could perfect a meritorious appeal that a reasonable lawyer would have perfected. Yes. Plaintiff, by failing to perfect a meritorious appeal and voluntarily discontinuing the action without allowing the Brenna Defendants to pursue his claim to trial, forfeited his right to sue for legal malpractice by incurably prejudicing the Brenna Defendants and precluding them from pursuing the very means by which they could have vindicated their representation of the Plaintiff. 3 PRELIMINARY STATEMENT This brief is submitted on behalf of Defendants-Appellants Robert L. Brenna, Jr., Esq., and Brenna, Brenna & Boyce, PLLC (hereinafter collectively referred to as "Defendants" or the "Brenna Defendants"), in support of their appeal from a September 28, 2012 Order by the Honorable Shirley Troutman that denied their motion for summary judgment, and which was affirmed by a July 19, 2013 Decision and Order of the Fourth Department. This action with allegations of legal malpractice arises from Defendants' representation of Plaintiff regarding a claim for medical malpractice that Plaintiff made against the United States of America in connection with a VA facility's treatment of Plaintiff's right eye. Plaintiff was represented first by the Brenna Defendants, beginning in June of 2006, who filed the administrative claim on or about August 9, 2006. When the Government failed to respond to the administrative claim within the applicable six-month period, the file was transferred to Michael R. Law of Phillips Lytle, LLP (hereinafter the "Phillips Lytle Defendants"). Phillips Lytle filed the complaint in the U.S. District Court for the Western District of New York on January 3, 2008. Although the U.S. Attorney initially indicated that Dr. Shobha Boghani, Plaintiff's treating physician at the VA, was a Government employee, he then, on October 7, 2008, brought a motion for leave to file a third-party complaint against Boghani and the University of 4 Rochester ("U of R"), Dr. Boghani's employer. In this motion, the U.S. Attorney admitted that he could not ascertain that Dr. Boghani was not a VA employee until he prepared for her deposition. At this point, Phillips Lytle declared a conflict with the U of R. The Brenna Defendants took the case back in December of 2008, and filed an amended complaint which included the additional parties as Defendants. Dr. Boghani and the U of R moved for summary judgment on statute of limitations grounds. Hon. Charles J. Siragusa issued a decision dismissing all but one of Plaintiff's claims. Instead of trying the case and appealing Judge Siragusa's decision, Plaintiff, after retaining his current counsel, directed Brenna to end the action. Plaintiff failed to respond to Brenna's request that the directive be put in writing and signed. Plaintiff retained his current counsel of record herein, Rafael O. Gomez of LoTempio and Brown, who advised Plaintiff to sue for legal malpractice in the underlying matter instead of completing the work on the case for which he, Gomez, had now assumed responsibility. He then filed suit, and thereafter issued a written directive that Brenna discontinue the action immediately. (R. 300). Brenna complied with this direction. It was Gomez who made the decision to discontinue a viable case on the trial calendar while a viable, meritorious appeal was pending as well. 5 Plaintiff then turned around and sued the Brenna Defendants for legal malpractice in the underlying matter. The Brenna Defendants moved for summary judgment and dismissal of Plaintiff's complaint on these and other grounds. Supreme Court denied Defendants' motion. Defendants appealed to the Fourth Department, which affirmed, with one dissent, the Supreme Court's denial. Defendants then moved for leave to appeal to the Court of Appeals, which the Fourth Department granted, and this appeal ensued. Accordingly, the Brenna Defendants respectfully submit that Supreme Court erred when it denied their motion for summary judgment and that the Fourth Department erred when it affirmed the Supreme Court's decision. Once Plaintiff voluntarily discontinued the underlying action with a trial and meritorious appeal and a possible settlement pending, he could not then pursue the Brenna Defendants for legal malpractice as a matter of law. STATEMENT OF FACTS Plaintiff's Medical Care Plaintiff came under the care and treatment of Dr. Shobha Boghani at the Rochester VA Outpatient Clinic on or about October 24, 2002. At this time, he was diagnosed with a possible branch vein occlusion in his right eye. (R. 42). In 2003 and 2004, Plaintiff had several follow-up appointments at the Rochester VA Outpatient Clinic regarding his right eye. On August 27, 2004, Plaintiff 6 experienced pain in his right eye and was seen on an urgent basis by his PA, James Sigrist. (R. 270). Mr. Sigrist scheduled an urgent consultation with Rochester Eye Associates. (R. 44). Dr. Kyle Williams of Rochester Eye Associates diagnosed Plaintiff with neurovascular glaucoma, and informed Plaintiff that he could expect to experience permanent blindness in his right eye. (R. 45-54). On June 6, 2006, Plaintiff received treatment and was diagnosed with Rubeotic glaucoma OD secondary to carotid occlusion. (R. 57). At this appointment, Plaintiff purportedly learned that his blindness may have been prevented had it been detected earlier. (R. 249). The Underlying Lawsuit Plaintiff contacted the Brenna Defendants, who commenced the prerequisite administrative tort claim on Plaintiff's behalf against the United States under the Federal Tort Claims Act by filing an SF-95 form with the Veteran's Administration on or about August 9, 2006. (R. 247-282). After Brenna filed the SF-95 form, he recommended that Plaintiff retain the Phillips Lytle Defendants to pursue his medical malpractice claim. On July 11, 2007, Plaintiff executed a retainer agreement solely with Phillips Lytle memorializing their relationship. (R. 58-62). Plaintiff, through Phillips Lytle, sued the United States on January 3, 2008. (R. 63-65). The initial complaint did not include Dr. Boghani or the University of Rochester, whose ophthalmology department provided services to Rochester VA 7 patients. The statute of limitations for pursuing a medical malpractice case against the U of R and Dr. Boghani individually expired, at the latest, on January 12, 2008. Later in 2008, Phillips Lytle noted that it had a potential conflict of interest that would preclude its continued representation of Plaintiff, and Michael Law contacted the Brenna Defendants about the possibility of resuming their prior role as Plaintiff's counsel. (R. 285). The Brenna Defendants substituted back in as counsel for Plaintiff on or about December 8, 2008, when the Western District of New York entered a stipulated order to substitute counsel. (R. 66). Almost immediately after substitution, the Brenna Defendants informed the court that they would not oppose the Government's October 7, 2008 Motion for Leave to Commence a Third Party Action against Dr. Boghani and the U of R. (R. 67-77). In this motion, the U.S. Attorney admitted that he could not ascertain that Dr. Boghani was not a VA employee until he prepared for her deposition. (R. 69- 70). On December 12, 2008, four days after the Order to Substitute Counsel was entered, the court granted the Government's Motion for Leave to File to Commence a Third Party Action. (R. 78). A third-party complaint naming Dr. Boghani and the U of R was filed on January 9, 2009. (R. 79-90). Dr. Boghani and the U of R answered on February 2, 2009. (R. 91-94). The Government served its Rule 26 disclosures on May 18, 2009. (R. 99- 100). In these disclosures, the Government identified Dr. Boghani as a "[p]art-time 8 Ophthalmologist at VA Rochester Outpatient Clinic." (R. 100). On May 22, 2009, Brenna filed an amended complaint on Plaintiff's behalf, naming Dr. Boghani and the U of R as defendants. (R. 103-118). On June 11, 2009, Dr. Boghani and the U of R moved for summary judgment on the grounds that the action against them was barred by the statute of limitations. (R. 119-206). In a decision dated November 4, 2010, Hon. Charles J. Siragusa of the Western District of New York dismissed all of Grace's claims against Dr. Boghani, the Department of Veteran's Affairs ("DVA") and the U of R, except for one claim that the DVA negligently failed to reschedule one of Plaintiff's ophthalmology appointments after it had been cancelled. (R. 239). Judge Siragusa Erroneously Dismisses All But One of Plaintiff's Claims The court reasoned that Dr. Boghani and the U of R were independent contractors and not Government employees (a fact not disclosed by the Government during the mandatory administrative claim process) and, as a result, Plaintiff should have sued them individually in his initial complaint. (R. 224). The court further reasoned that when Plaintiff amended his complaint to include Dr. Boghani and the U of R, the statute of limitations on medical malpractice had long since expired, and Plaintiff could no longer bring suit against them. (R. 239). As a result, Plaintiff lost the ability to sue Dr. Boghani and the U of R, unless Judge Siragusa's decision was successfully appealed. 9 The Appeal of Judge Siragusa's Erroneous Decision Had Merit and Should Have Been Pursued to Conclusion Before Plaintiff Could Sue His Attorney for Malpractice Plaintiff and his current attorney are responsible for the decision not to pursue Judge Siragusa's decision at the trial and appellate levels. In so doing, Plaintiff's current attorney deprived his client and the Brenna Defendants of the tools available to settle the case, take the case to trial, or to pursue an appeal. Thus, this decision deprived the Brenna Defendants of the tools they needed to vindicate their representation of Plaintiff in the underlying matter. One such tool took the form of a valid basis for the appeal of Judge Siragusa's decision. The Brenna Defendants respectfully disagree with Judge Siragusa's decision. Defendants have ample reason to believe that a good-faith basis existed for a legally viable and meritorious appeal, especially after the U.S. Supreme Court's decision in Krupski v. Costa Crociere S.p.A. (560 U.S. 538, 130 S.Ct. 2485, 2490 [2010] (holding that the relation back of an amendment changing or adding a party depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend)). Krupski was decided while the matter was pending before Judge Siragusa. First, it is more than likely that the Second Circuit would have determined Dr. Boghani to be a government employee, and therefore, need not have been named individually as a defendant. As the Court is aware, the Federal Tort Claims 10 Act provides a limited waiver of sovereign immunity, and it makes "the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment." (U.S. v. Orleans, 425 U.S. 807, 813 [1976]). In Orleans, the Supreme Court established the test as to whether an individual is deemed to be an employee of the United States under the FTCA as "whether [the individual's] day-to-day operations are supervised by the Federal Government." (Orleans, 425 U.S. at 815). Applying the Orleans test to doctors who have been contracted to work at VA facilities, it has been held that such a physician was a government employee under the FTCA where he entered into an agreement to attend a VA hospital's clinic on a regular basis and for a flat fee per session. (see Costa v. U.S. Dept. of Veteran's Affairs, 845 F.Supp. 64, 68 [D.R.I. 1994] (doctor was a government employee because "[t]he Hospital determined his fees and his patient load. He was under the control of the Hospital in all matters other than the exercise of his medical judgment. Even then his medical decisions were guided by the policies of the VA hospital.")). The doctor in Costa was also contractually obligated to see any patient that came into the clinic on days that he was in attendance, and he was at all times bound by the hospital's by-laws, policies, and procedures. (Id.). Consequently, the court determined that this physician was a government employee as contemplated by the FTCA. 11 In Bravo v. U.S., the court examined a written contract to determine that the contracted-for physician providing services to the military was a government employee under the FTCA. (see Bravo v. U.S., 403 F.Supp.2d 1182, 1191-92 [S.D. Fla. 2005]). Specifically, the court reasoned that due to the close level of supervision and control exercised by the government, the physician was a government employee for FTCA purposes. (Id. at 1195-96). In Tivoli v. U.S. (1996 WL 1056005 [S.D.N.Y. Sep. 27, 1996], further action, 1997 WL 1047860 [S.D.N.Y. Oct. 31, 1997], aff'd 164 F.3d 619 [2d Cir. 1998]), the Southern District of New York found, and the Second Circuit upheld, that radiologists who provided services to the National Institute of Health, who were also subject to government oversight of his hours and work product were government employees under the FTCA, even though "the contract [in question] did not specifically provide for Government supervision of the radiologists on a day to day basis." (Tivoli, 1996 WL 1056005, at *3). In the underlying matter, the contract between the U of R and the government provided that "[t]he services to be performed by the Contractor shall be under the general direction of the VAHNUNY [VA Healthcare Network Upstate New York] Lead Medical VA Care Line (MVAC) Physician," and that "Dr. Boghani will provide ophthalmology services at the Rochester VA 6 days per month." (R. 126, 135). 12 The contract also included the following provisions:  "The contractor shall participate in IHI [Institute for Healthcare Improvement] initiatives as directed by the COTR [Contracting Officer's Technical Representative]. The contractor shall also participate in the External Peer Review Program (EPRP) and adhere to all VAHNUNY initiatives with regard to CDI [Chronic Disease Indices] and PI [undefined acronym]. The Contractor is required to enter patient record information into VISTA [Veterans Health Information Systems & Technology Architecture]."  VAHNUNY shall be allowed to periodically conduct quality reviews. The contractor shall participate in VAHNUNY organized customer service/quality reviews."  "VAHNUNY may evaluate the quality of professional and administrative services provided, but retains no control over the medical, professional aspects of services rendered (e.g., professional judgments). The qualifications of Contractor personnel shall also be subject to review by the VAHNUNY Medical Director and approval by the VAHNUNY Director." (R. 136,137). Judge Siragusa reasoned that Dr. Boghani was an independent contractor because "[t]he VA did not exercise control over the details of [Dr. Boghani's] work, nor could it, since [Dr. Boghani's] VA supervisors were not familiar with ophthalmology." (R. 225). This reasoning implicitly adds an additional requirement that Tivoli does not include and that Costa explicitly omits: the requirement that the government could be able to override a physician's medical judgment. (see Costa, 845 F.Supp. at 68 (holding that a physician is a government 13 employee where "[h]e was under the control of the Hospital in all matters other than the exercise of his medical judgment.") (emphasis added)). Judge Siragusa's decision then referred to the Tivoli case as "inapposite," without explaining how it is such. (R. 225). The decision distinguished the underlying matter from Williams v. U.S. (2007 WL 951382 [S.D.N.Y. Mar. 22, 2007]), another case cited by Plaintiff, but it does not distinguish the underlying matter from Costa or Bravo. (R. 225-26). However, as in Tivoli, Costa, and Bravo, Dr. Boghani was under the supervision of the VA. The VA controlled the number of days that she worked and her rate of compensation. It required her to treat the patients who sought care with her during her times of attendance at the VA clinic. The VA also retained the right to evaluate and review the quality of her work. Short of having another physician on hand to second-guess her decisions as she made them, the VA could not have exercised more control over Dr. Boghani's actions. In fact, the relationship between Dr. Boghani and the VA was so inextricably intertwined that the U.S. Attorney himself did not realize that she was not a Government employee until he began to prepare for her deposition, well after the complaint was filed. (R. 69-70). Based on abundant legal precedent, it is more than likely that the Second Circuit on appeal would have determined that Dr. Boghani was a government employee as contemplated by the FTCA. 14 In addition, the Second Circuit would be bound by the U.S. Supreme Court decision in Krupski, and would have determined that the relation-back doctrine applied to the underlying matter1, and therefore, Plaintiff was not barred by the statute of limitations from including them in his complaint. Judge Siragusa reasoned that the claims against Dr. Boghani and the U of R would relate back to the commencement of the action if they met either the requirements of New York's relation-back doctrine or those of FRCP 15(c)(B)&(C). (R. 235). This Court set forth the three-part test for the application of New York's relation-back doctrine as follows: (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense of the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well. (Buran v. Coupal, 87 N.Y.2d 173, 178 [1995] (quotation omitted)). 1 See, e.g., Judge Posner’s analysis of the significance of Krupski in Joseph v. Elan Motorsports Technologies Racing Corp. (638 F.3d 555, 559-60 [7th Cir. 2011]); see also, (Abdell v. City of New York, 759 F.Supp.2d 450, 456-59 [S.D. NY 2010]). 15 The Court in Buran further cited Supreme Court precedent to identify notice to the defendant as the "'linchpin'" of the relation-back doctrine. (Id. at 180-81 (quoting (Schiavone v. Fortune, 106 S.Ct. 2379, 2385 [1986]))). In the underlying case, it can hardly be disputed that both claims arose from the same events. Second, Dr. Boghani and the U of R are united in interest with the VA because of their contractual relationship and because Dr. Boghani was, for the purposes of the FTCA, a government employee. Finally, Dr. Boghani had notice of her potential malpractice in the form of Plaintiff's administrative complaint against the VA. According to her deposition testimony, Dr. Boghani received this actual written notice in approximately November of 2006, sixteen months after her last treatment of Plaintiff's eye condition, and well within the 2½ year statute of limitations of CPLR 214-a. (see Addendum to this Brief, at A-1).2 Although Judge Siragusa relied upon Gibbons v. Fronton (661 F.Supp.2d 429, 432 [S.D.N.Y. 2009]) for the proposition that "the United States ha[s] not waived sovereign immunity with regard to vicarious liability claims," this quotation refers only to vicarious liability claims against independent contractors, not against government employees. (R. 236). Assuming that the Second Circuit would have found Dr. Boghani to be a government employee on appeal, the 2 The addendum to this brief contains documents that were annexed to Defendant-Appellant's brief to the Fourth Department. Plaintiff-Respondent did not challenge the inclusion of these materials; therefore, these materials were properly before the Fourth Department in this matter. 16 Gibbons case would be inapplicable. Judge Siragusa also relied upon Cole v. Tat- Sum Lee (309 A.D.2d 1165 [4th Dept 2003]) in his decision for the proposition that the third prong of the relation back test was not met where the party to be added had no notice of the lawsuit until after the statute of limitations had expired. (R. 237). Here, Dr. Boghani received written notice of the administrative claim within the statute of limitations. (see Addendum, at A-1). Finally, a good-faith basis existed for an appeal of the FTCA action because the doctrines of equitable tolling and equitable estoppel applied to the underlying matter. The Second Circuit has held that where the limitations period passed in an FTCA case, the doctrine of equitable tolling could apply in the absence of fraudulent concealment where a physician's employment arrangement was not disclosed. (see Valdez ex rel. Donely, 518 F.3d 173, 182-83 [2nd Cir. 2008]). Moreover, equitable estoppel, wherein an individual is led to rely upon the appearance of agency to his detriment, has been held to estop the Government from denying that a physician is an employee of the Veteran's Administration, and this doctrine also applied in the underlying case. (see Gamble v. U.S., 648 F.Supp. 438, 441 [N.D. Ohio 1986]). As this Court knows, merit to the underlying claim is a condition precedent to a successful subsequent legal malpractice claim. Attorney Gomez must therefore believe that there was merit to the underlying claim, and it was his sole decision to 17 discontinue (against Brenna's advice to Grace) which resulted in the termination of the underlying claim before it came to fruition, either by trial, appeal, or both. Because Gomez alone formulated the analysis to advise discontinuance prior thereto, he alone bears responsibility for his own this legal advice, not the Defendants herein. This meritorious appeal shows that the Brenna Defendants had at their disposal a tool with which they could have vindicated their representation of Plaintiff. A reasonable party in Plaintiff's position would have pursued this appeal which would likely have been successful. When he voluntarily discontinued the underlying suit, Plaintiff both failed to mitigate his damages and irreparably deprived the Brenna Defendants of this tool, thus forfeiting his right to sue for legal malpractice. Potential Trial and Potential Settlement Not only did Plaintiff deprive the Brenna Defendants of the right to perfect the appeal, but by discontinuing the case, he also deprived the Brenna Defendants of trying the case before a jury on the sole but significant remaining issue, The case was to be scheduled for trial on the remaining claim, but, prior to scheduling, Brenna received a settlement offer. (R. 286-93). The offer included an additional $18,000 to cover outstanding medical bills, for which Brenna had 18 successfully negotiated at Plaintiff's request, but Plaintiff then stopped taking steps toward finalizing the settlement agreement. (R. 286-93). Since settlement documents generally release all pending or related claims, Brenna informed Plaintiff that if he accepted a settlement, he would forfeit his right to appeal Judge Siragusa's decision. (R. 296). Plaintiff asked Brenna about the possibility of taking legal action against Michael R. Law and Phillips Lytle. Brenna felt ethically obligated to tell Plaintiff that he could not give unbiased advice about Mr. Law, and that Plaintiff should seek independent advice to determine his course of action. (R. 296). A letter from Brenna to Plaintiff indicates that Brenna informed him on multiple occasions that if Plaintiff wished to explore an action against Law, he should retain other counsel. (R. 296). Plaintiff then retained a new attorney, Rafael O. Gomez of LoTempio and Brown. It is unknown at what point Plaintiff began consulting with Rafael Gomez but it is known that Plaintiff knowingly and voluntarily waived his right to pursue a legal malpractice action and failed to mitigate his damages by discontinuing his case. Plaintiff Voluntarily Discontinues the Underlying Lawsuit The Brenna Defendants returned the file to Plaintiff on November 23, 2011. (R. 299). Plaintiff instructed Brenna via email to discontinue the case. Brenna then requested that Plaintiff sign an email and mail him a hard copy, but Plaintiff did not. (R. 298). Plaintiff's current attorney also directed Brenna to discontinue 19 the case; and Brenna did so upon receiving the written directive from him. (R. 300). By choosing discontinuance of the one remaining claim, Plaintiff lost his opportunity to successfully appeal Judge Siragusa's decision and to successfully try the sole but significant issue remaining for jury determination. If successful at trial, a jury verdict would have brought Plaintiff the damages he sought and now seeks against the Brenna Defendants. As a result, Plaintiff legally forfeited any right he may have had to pursue this lawsuit against the Brenna Defendants. The Fourth Department's Decision The Fourth Department affirmed the Decision of the Supreme Court, Erie County, Shirley Troutman, J., entered October 3, 2012, which denied Defendants' motion for summary judgment. (R. 471-478). The majority stated that "the precise question presented herein appears to be an issue of first impression in New York…" (R. 473). In fact, this does appear to be the first case in New York State's jurisprudential history where an attorney could be subject to being directed to stop all efforts to win a pending case and then be subject to a malpractice suit for "losing" the underlying action when the action was not lost at all. The Fourth Department majority viewed Defendants' arguments as requesting a per se rule by which a plaintiff who discontinues his underlying action waives his 20 right to sue for legal malpractice, and declined to adopt such a per se rule. (R. 473). The majority was concerned that by adopting such a rule, parties might be forced "to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action." (Id.). That assumption, however, completely ignores counsel's ethical duty not to pursue frivolous litigation. (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.1[a]). In fact, if Gomez believed that the underlying claims were frivolous, then his filing of the instant malpractice action in and of itself is frivolous, by definition. Alternatively, if he believed the underlying claim had merit, he had an ethical duty to advise Plaintiff to continue the suit and/ or the appeal. It is a dilemma of his own creation. The majority concluded that Defendants did not prove that Plaintiff was likely to succeed on an appeal from Judge Siragusa's order, and therefore, could not prove that their alleged negligence was not a proximate cause of Plaintiff's damages. (R. 474). The majority indicated that, had the record before the Fourth Department included the full record that would have been produced before the Second Circuit in a potential appeal of Judge Siragusa's decision, Defendants may have been able to establish lack of proximate cause. (R. 474). In its opinion, the majority relied on caselaw from Louisiana, Nevada, and Florida for the proposition that failure to appeal an underlying action should not bar a litigant from pursuing a legal malpractice action. (R. 473-74). 21 Justice Whalen's Dissent In his dissenting opinion, Justice Whalen correctly concluded that Defendants' appeal had merit, and that Plaintiff's directive to Defendants to discontinue his action while the appeal was pending prevented Defendants from vindicating their representation. (R. 475-76). Indeed, Justice Whalen opined that the Fourth Department's decision in Rupert should apply to the facts presented here. (R. 476- 77). Justice Whalen rightly concluded that Plaintiff forfeited his right to bring a legal malpractice action because he terminated the underlying action while an appeal was pending. (R. 477). Justice Whalen was the only Fourth Department Justice to analyze the merits of the potential appeal. (R. 475-76). Upon reflection, Justice Whalen determined that the appeal was meritorious because existing jurisprudence easily permitted the Second Circuit to find that Dr. Boghani was a government employee, and not an independent contractor. (R. 476). Because Plaintiff terminated the underlying action and deprived Defendants of the opportunity to pursue this meritorious appeal, Justice Whalen opined that Plaintiff could not bring the instant legal malpractice action. (R. 477). Justice Whalen analogized the instant action to the Fourth Department's decision in Rupert v. Gates & Adams, P.C. (83 A.D.3d 1393, 1396 [4th Dept 2011]). (R. 476-77). The Rupert decision stands for the established proposition that where a client deprives his attorney of the opportunity 22 to vindicate his representation, that client cannot sue the attorney for malpractice. (see Rupert, 83 A.D.3d at 1396). In addition, Justice Whalen had two major policy concerns with the majority's opinion. First, he stated that by permitting a party to prematurely terminate his underlying action and begin a legal malpractice action, the result would be an increase in litigation. (R. 477). Moreover, this new litigation would be legal malpractice litigation, which is particularly complex, because it involves a trial within a trial. (R. 477). Increased legal malpractice litigation will necessarily result in the need for longer, more expensive actions, and will necessitate the use of legions of experts. (R. 477). If a party merely pursued the appeal of his original action, the additional costs of legal malpractice litigation may be saved. (R. 477). Second, Justice Whalen was concerned that by ending the action against the original defendant, and commencing one against an attorney, a party would be permitted to 'shop' for lawyer-defendants in instances where he might think that an attorney might make a more favorable target than the original defendant. (R. 477). Regarding the majority's other concerns, Justice Whalen opined that nothing prevents a party from timely commencing a legal malpractice action which could be stayed until the underlying appeal has concluded, or from obtaining a waiver of the statute of limitations. (R. 477). Justice Whalen also opined that the majority's concern regarding interference with settlement negotiations was speculative. (R. 23 477-78). Finally, Justice Whalen opined that had Plaintiff continued with his remaining cause of action, he could have recovered all of the damages he sought, thereby upholding his duty to mitigate damages. (R. 478). In fact, Justice Whalen stated that by affirmatively terminating the underlying action, Plaintiff breached his duty to mitigate his damages. (R. 478). Justice Whalen’s analysis is sound and the majority's opinion is misplaced. The Brenna Defendants were derived of their ability to vindicate their representation by the Plaintiff who failed to mitigate his damages and forfeited his right to pursue a legal malpractice case by discontinuing the underlying matter when an issue for trial existed, as well as a meritorious appeal. POINT I IF THE COURT FINDS THAT THIS IS NOT A CASE OF FIRST IMPRESSION, THEN RUPERT AND RODRIGUEZ CONTROL, AND PLAINTIFF'S CLAIM FOR LEGAL MALPRACTICE CANNOT PROCEED BECAUSE PLAINTIFF DIRECTED THE TERMINATION OF THE UNDERLYING CASE. A. Plaintiff does not dispute that he voluntarily discontinued his underlying action against the Veterans' Administration while he still had a pending issue for trial and a viable appeal of Judge Siragusa's decision. As the Court is aware, summary judgment is a mechanism used to resolve civil cases as a matter of law when there is no genuine issue of material fact to be resolved at trial. (see Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974]). If there is no legal merit to a cause of action, or if no question of fact is raised, summary 24 judgment should be granted. (see Reinert v. Johnsburg, 99 A.D.2d 572, 572 [3rd Dept. 1984]). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law. (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce competent, admissible evidence demonstrating the existence of triable issues of material fact. (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). To this end, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact. (Id. at 562). Speculation alone is insufficient to defeat a motion for summary judgment. (see Raux v. City of Utica, 59 A.D.3d 984, 985 [4th Dept 2009]; Kirbis v. LP Cimineli, 90 A.D.3d 1581, 1582-83 [4th Dept 2011]). Thus, summary judgment is appropriate where the movant’s initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact. (see Persaud v. Darbeau,13 A.D.3d 347, 348 [2nd Dept. 2004]). In the instant matter, it is uncontroverted that Plaintiff voluntarily discontinued his medical malpractice action. Plaintiff's attorney did not deny in his affidavit opposing Brenna's motion for summary judgment that he directed Brenna to discontinue his medical malpractice action. Instead, Plaintiff's attorney affidavit 25 contained one paragraph (paragraph 15) that addresses this issue. That paragraph states, in its entirety: Defendants argue that Plaintiff's discontinuance of the one remaining cause of action against the Veteran's Administration Hospital of Rochester precludes this legal malpractice lawsuit. This argument is utterly ridiculous. The basis of this legal malpractice lawsuit is that Defendants failed to sue the doctor who committed the medical malpractice which resulted in him going blind in his right eye. Defendants attempted to remedy this error by impleading the doctor after the passage of the statute of limitations, but this attempt ultimately failed because the claim was dismissed by the Federal Court as untimely. (R. 307) Nowhere in this paragraph does Plaintiff dispute that he voluntarily discontinued his medical malpractice action. (R. 300). This paragraph begins by cavalierly and conclusorily dismissing Defendants' argument as 'ridiculous,' but does not address or dispute the factual and legal basis of the Brenna Defendants' dispositive motion. Nor does this paragraph even begin to address the key issues, viz, the appearance that Dr. Boghani was a VA "employee" to include the fact that even the Assistant U.S. Attorney defending the VA did not learn of her actual status until long after the FTCA suit was filed. Nor does it bother to address the viability of an appeal to the Second Circuit as to (a) Dr. Boghani’s "employee" status; or (b) the "relation back" principle clarified in Krupski. 26 Plaintiff's attorney provided neither documentary evidence nor sworn statements to rebut Brenna Defendants' assertion that Plaintiff voluntarily discontinued the underlying action. Indeed, Plaintiff not only failed to dispute Defendants' assertion, he failed to address it at all. B. New York jurisprudence dictates that Plaintiff cannot maintain an action for legal malpractice because Plaintiff himself directed the voluntary termination of the underlying FTCA case. In the usual course, New York courts find that where an attorney acts pursuant to the wishes of an informed client, the client cannot then maintain a claim of legal malpractice against him. (see Murray Warehouse, Inc. v. Abelove, 170 A.D.2d 1027, 1028 [4th Dept. 1991] (holding that the attorneys were not liable for failing to include a parcel of property in a mortgage where they were not instructed to do so)). More specifically, where a client voluntarily directs the termination of his lawsuit, and where the attorney follows such directive, the client cannot then sue his attorney for malpractice. (see Rupert, 83 A.D.3d at 1396; Rodriguez v. Fredericks, 213 A.D.2d 176, 178 [1st Dept 1995] (where a legal malpractice plaintiff voluntarily settled an action before an appeal, he "precluded [the] defendant from pursuing the very means by which he could have vindicated his representation," and, as a result, the plaintiff could not pursue a claim for legal malpractice); Forest City Enters., Inc. v. Russo, 8 Misc.3d 151, 156 [Sup Ct, New 27 York County, 2005] (citing Rodriguez, 213 A.D.2d at 178)). Moreover, it is well-settled that plaintiffs in legal malpractice actions have a duty to mitigate the damages sustained as a result of the alleged malpractice. A plaintiff's failure to mitigate damages typically arises in the context of settlement. (see Lue v. Finkelstein & Partners, LLP, 67 A.D.3d 1187 [3d Dept 2009]). However, failure to mitigate has led to the dismissal of legal malpractice actions. (see Gazzola Bldg. Corp. v. Shapiro, 181 A.D.2d 718, 718-19 [2d Dept 1992] (dismissing a legal malpractice action for the alleged failure to timely file a condominium offering plan, where the plaintiff failed to mitigate damages by selling the condominium units in a timely fashion, and therefore could not prove nonspeculative damages)). In Rupert, the Fourth Department found that the defendant attorneys erred by not properly valuing $54,725 worth of household goods as an asset of the plaintiff in a matrimonial action. (see Rupert, 83 A.D.3d at 1396). The attorneys did not obtain a proper valuation of some Canadian real property owned by the plaintiff. (Id.). However, the plaintiff had voluntarily entered into a global settlement agreement in which he waived the right to future appeals. (Id.). As a result of that agreement and the waiver of appeal, the plaintiff was barred from pursuing a legal malpractice lawsuit against his lawyer. (Id.). In affirming the decision of the Supreme Court, the Fourth Department reasoned that these errors 28 could have been corrected on an appeal from the final judgment in the matrimonial action, and [the] plaintiff consented to the dismissal on the merits of any appeal in the matrimonial action as part of the global settlement resolving a bankruptcy proceeding in which he was involved. In doing so, plaintiff precluded pursuit of the very means by which defendants' representation of plaintiff in the matrimonial action could have been vindicated. (Rupert, 83 AD3d at 1396 (internal citations omitted) (emphasis added)). The Rupert rationale easily applies here. In fact, in his dissent, Justice Whalen interpreted Rupert to stand for the simple proposition that where a client deprives his attorney of the tools needed to vindicate his representation, that client cannot pursue a claim for legal malpractice. (R. 476). Here, Plaintiff voluntarily discontinued the underlying case, precluding pursuit of the very means by which Defendants' representation of Plaintiff in the underlying action could have been vindicated. Indeed, no plaintiff should be allowed to stop a case in favor of suing his lawyer for malpractice in response to having received an unfavorable decision. In the instant matter, Plaintiff expressly directed Defendant Brenna to discontinue his medical malpractice claim against the DVA. (R. 300). It was Plaintiff's current attorney Gomez who decided with Plaintiff to forfeit a trial of the remaining cause of action, as well as the appeal of Judge Siragusa's decision. This is where the Appellate Division below went off-track. The "proximate cause" of Plaintiff’s legal malpractice claims is nothing that the Brenna Defendants did or 29 did not do, but rather is premised upon a misguided legal tactic orchestrated by Plaintiff’s current counsel to voluntarily discontinue the entire FTCA case. Simply put, Plaintiff's "legal malpractice" sights are pointed in the wrong direction. When he discontinued the underlying case, Plaintiff breached his duty to mitigate damages, as Justice Whalen concluded, and also abandoned his right to pursue the underlying case at the trial level, as well as at the appellate level. (R. 478). Plaintiff also refused to accept a settlement offer that was in existence at the time that Brenna was instructed to discontinue the case. Plaintiff and his current counsel prevented Brenna from contesting Judge Siragusa's decision, which, if overturned on appeal, would have vindicated the Brenna Defendants in this case. Plaintiff's choice to prematurely discontinue the matter forever prejudiced Defendants' ability to defend the instant case.3 Plaintiff had the right to obtain independent advice from new counsel, and to have new counsel advise Plaintiff to discontinue the claim. However he did not have the right to then sue the Brenna Defendants for malpractice. Plaintiff's current attorney had the right to pursue the case at trial or pursue an appeal. He chose to do neither. Plaintiff must bear the consequences of his own actions, and the consequences of his current attorney's advice and decisionmaking. 3 As a matter of public policy, this Court respectfully should consider whether the actions and advice of Plaintiff’s new counsel, Mr. Gomez, constitute barratry under these circumstances. 30 Plaintiff could and should have tried to a jury his remaining cause of action. Judge Siragusa's dismissal decision was appealable, and, as Justice Whalen concluded, the abandoned potential appeal was meritorious. (R. 476). Instead, Plaintiff elected not to try his remaining cause of action, not to appeal Judge Siragusa's decision, not to mitigate his damages, but instead, to sue the Brenna Defendants after depriving them of the opportunity to vindicate their representation as contemplated by Rupert, Rodriguez, and Justice Whalen's dissent. Plaintiff cannot now sue the Brenna Defendants for malpractice after he voluntarily discontinued the underlying case. This course of action deprived Plaintiff and the Brenna Defendants of the very tools that they could have used to correct the errors in the Siragusa decision, and it incurably and intolerably prejudiced their defense of this case. Accordingly, Plaintiff is barred from pursuing a claim for legal malpractice as a matter of law, and Defendants respectfully request that this Court dismiss this action in its entirety. 31 POINT II IF THE COURT FINDS THAT THIS IS A CASE OF FIRST IMPRESSION, THEN IT SHOULD FIND THAT A PARTY WAIVES HIS RIGHT TO COMMENCE A LEGAL MALPRACTICE ACTION WHERE HE TERMINATES AN UNDERLYING ACTION IN WHICH A CAUSE OF ACTION IS RIPE FOR TRIAL AND A MERITORIOUS APPEAL IS PENDING. The majority opinion from which the Brenna Defendants appeal states that "the precise question presented herein appears to be an issue of first impression in New York…" (R. 473). Following this assertion, the majority proceeds to analyze this matter with reference to the jurisprudence of Louisiana, Nevada, and Florida. (R. 473-74) (citing MB Indus., LLC v. CNA Ins. Co., 74 So.3d 1173, 1176 [2011]; Hewitt v. Allen, 118 Nev. 216, 217-18, 43 P.3d 345, 345-46 [2002]4; Eastman v. Flor-Ohio, Ltd., 744 So.2d 499, 502-504 [1999]; Segall v. Segall, 632 So.2d 76, 78 [1999]). These out-of-state decisions hold that failure to appeal an underlying action should not bar a litigant from pursuing a legal malpractice action. 4 Hewitt does not fully support the Fourth Department’s decision however. Hewitt’s majority opinion rejected a per se rule, but noted: In the context of litigation malpractice, that is, legal malpractice committed in the representation of a party to a lawsuit, damages do not begin to accrue until the underlying legal action has been resolved. (Hewitt, 118 Nev. at 221). That Court went on to reason: In cases where no appeal from an adverse ruling was filed, the defendants in the legal malpractice action are able to assert, as an affirmative defense, that the proximate cause of the damages was not the attorney’s negligence, but judicial error that could have been corrected on appeal. This issue is commonly raised under theories of abandonment or failure to mitigate damages, but can also be asserted as part of a claim that the malpractice action is premature. (Id.) 32 A. An examination of the merits of the pending appeal is not necessary; because Plaintiff forfeited a pending cause of action that was ripe for trial, he abandoned his right to bring a cause of action for legal malpractice. First, these out-of-state cases are distinguishable from the instant matter because none of them involve the discontinuance of a case while a viable claim was still pending for trial. Defendants contend that Plaintiff here cannot pursue a malpractice action because he terminated his action while a viable claim, one from which he could recover all or most of the damages he sought, was pending for trial. Sister states have held than in such a situation, a cause of action for malpractice has not yet accrued. For example, Georgia courts have held that "[w]here the cause(s) of action underlying the malpractice claim remain pending, plaintiff cannot prove the required element of damage because the action may terminate favorably for the client." (Allen Decorating, Inc. v. Oxendine, 225 Ga.App. 84, 88, 483 S.E.2d 298, 301 [1997]). The U.S. District Court for the Middle District of Florida has similarly reasoned that "[w]hen a plaintiff bases a malpractice action on errors committed in the course of litigation, and the litigation proceeds to judgment, generally the redressable harm is not established until final judgment is rendered." (Jones v. Law Firm of Hill and Ponton, 223 F. Supp.2d 1284, 1287 [M.D. Fla. 2002] (citations omitted)). 33 B. If the Court examines the merits of the pending appeal, the appropriate standard of review is whether such an appeal was meritorious; because Plaintiff's pending appeal had merit, he forfeited his legal malpractice action by discontinuing the action. The out-of-state decisions cited by the Fourth Department do not conduct an in-depth analysis of the merits of a potential appeal in their respective underlying actions. For example, Hewitt and Eastman are concerned about a perceived abundance of meritless appeals in the event of a holding that failure to appeal constitutes waiver of a legal malpractice claim. (see Hewitt, 118 Nev. at 224; Eastman, 744 So.2d at 504). However, Defendants' proposed standard addresses the issue of meritless appeals while still protecting plaintiffs' attorneys from unwarranted legal malpractice suits. The existing jurisprudence regarding the standard of review of the merits of a potential remaining cause of action or appeal reveals the following choices: 1) parties are entirely barred from pursuing legal malpractice claims where a pending appeal exists; 2) parties are not barred from pursuing legal malpractice claims where a pending appeal exists; 3) parties are only barred from pursuing legal malpractice claims where the pending appeal is meritorious. 1. Defendants do not advocate for a bright-line standard that would require all appeals to be exhausted before a legal malpractice action can be brought. The first of these options finds minimal support in current jurisprudence, and it is the straw man position against which the Fourth Department argued in its decision 34 in this case. Courts in Texas have engaged in reasoning consistent with this standard, holding that damages are not incurred by a party, and therefore legal malpractice causes of action cannot be brought, "until the underlying suit becomes final, which generally occurs after the last appeal or when the appellate process terminates." (Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24, 28 [1996] (citation omitted)). However, Defendants are not arguing for such a bright-line failure to exhaust remedy rule here. The Fourth Department's concern regarding frivolous appeals can be easily addressed with the adoption of the meritorious standard. 2. A standard by which a plaintiff never waives the right to sue for legal malpractice where an appeal is pending is inappropriate, and not fully supported by caselaw. The second option, which creates a rule that parties do not waive their right to bring a legal malpractice action by foregoing an appeal, finds some support in the Eastman and Hewitt decisions. However, as mentioned above, these decisions base their reasoning on a desire to not force parties to engage in futile, frivolous appeals merely to preserve their ability to file a legal malpractice claim. Again, this is a legitimate concern, but extending the logic of the Eastman and Hewitt decisions creates the sort of per se rule – albeit with the opposite effect – that the Fourth Department sought to avoid in its decision. The concern of frivolous appeals can be addressed by less drastic means. 35 3. The consensus of current jurisprudence favors an examination of the merits of a potential appeal; the appropriate standard is one where a plaintiff forfeits his opportunity to sue for legal malpractice when he fails to pursue a meritorious 5 appeal that a reasonable lawyer would pursue. The third option, one in which the court conducts an analysis of the merits of a potential appeal, finds broad support from the jurisprudence of sister states. It is a sensible, middle-of-the road approach, and it is the standard for which Defendants advocate. The standard is perhaps best articulated by the Louisiana Supreme Court in MB Indus., LLC v. CNA Ins. Co., which held that a party does not waive its right to file a legal malpractice suit where it declines to appeal the underlying matter, "unless it is determined a reasonably prudent party would have filed an appeal." (MB Indus., LLC, 74 So.3d at 1182-83). The meritorious/reasonably prudent party standard has been recently affirmed in Louisiana. (see Saussy v. Bonin, 2013 WL 4748236, at *4- *5 [La.App. 4 Cir. Sept. 4, 2013] (although a party should not be "'required to take actions which would likely prove unduly costly or futile,'" a party waives its right to pursue a legal malpractice suit where a reasonably prudent party would have pursued a pending appeal (quoting MB Indus. 74 So3d at 1181)); see also Brassette v. Exnicios, 92 So.3d 1077, 1084 [2012]). 5 Courts in New York State have defined 'meritorious' to mean that "[t]he claim must not be patently groundless, frivolous or legally defective and the Court upon consideration of the entire record must find that there is a reasonable cause to believe a valid cause of action does exist." (Rosenhack v. State, 112 Misc.2d 967, 969 [Ct Cl 1982] (citing Matter of Santana v. New York State Thruway Auth., 92 Misc.2d 1, 11 [Ct Cl 1977]; Plate v. State of New York, 92 Misc.2d 1033, 1041 [Ct Cl 1978])). As seen herein, Plaintiff's forfeited underlying appeal meets this definition. 36 In addition to Louisiana, the reasonably prudent party standard finds support in the jurisprudence of Georgia, which adopts a 'viability' standard. The Georgia Court of Appeals has held that "'[i]n a case where a plaintiff's pending claims remain viable despite the attorney's alleged negligence, the plaintiff severs proximate causation by settling the case, an act which makes it impossible for his lawsuit to terminate in his favor.'" (see Duncan v. Klein, 313 Ga.App. 15, 20, 720 S.E.2d 341, 346 [2011] (quoting Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga.App. 75, 76, 653 S.E.2d 791 n.3 [2007])). Even the Nevada decision cited by the Fourth Department argues for a similar standard of review. The Hewitt opinion expressly agreed with the proposition that the general rule that legal malpractice actions cannot accrue while an appeal is pending "should not apply when litigants voluntarily dismiss their appeals after determining that appeal is futile." (Hewitt, 118 Nev. at 221). This statement invites analysis of whether a pending appeal is or is not futile. In fact, the U.S. District Court for the District of Nevada interpreted Hewitt to mean that a defendant would have to show that the pending appeal was "likely" to succeed. (U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., 2013 WL 4505800, at *2 [D. Nev. 2013]). Florida courts have issued similar rulings, finding that where an appeal would have likely resulted in a reversal of the decisive judgment in the underlying case, the plaintiff's failure to appeal constituted an abandonment of a legal malpractice claim. 37 (see Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051, 1053 [Fla. Dist. Ct. App. 1991]). Although it can be argued that 'likely successful' may be a higher standard than 'meritorious,' or 'non-frivolous,' the essence of Hewitt, U-Haul, and Sikes is that Nevada and Florida jurisprudence clearly envisions an examination of the merits of the pending appeal as a means of determining whether proximate cause has been severed. 4. The 'meritorious' or 'reasonably prudent party' standard is preferable to the 'likelihood of success' standard, because the latter is an invitation to speculation. Defendants argue that the 'meritorious' standard best addresses the Fourth Department's concern regarding the filing of frivolous appeals. Such a standard protects attorneys from unwarranted malpractice suits while not forcing parties to engage in fruitless appeals. The 'likelihood of success' standard, would permit legal malpractice suits against attorneys where a viable, but perhaps not ironclad, appeal is pending. This goes too far, and does not adequately protect the bar from unwarranted malpractice suits. Moreover, 'likelihood of success' invites courts to engage in speculation on what another court might or might not do. For example, the Fourth Department, in its majority opinion in this case, envisioned a likelihood of success standard, but then did not engage in an analysis of 38 the merits of the potential appeal. (R. 474). Instead, the majority lamented the fact that they were not provided with a copy of the full record on appeal from the underlying action, and determined that it was premature to find that the appeal was likely to succeed. (R. 474). This reasoning is faulty because the full record on appeal of the underlying action was never compiled – it does not exist, and, because the appeal never came about, it could not possibly exist. Moreover, the final contents of a record on appeal are generally subject to disagreements between the parties, so it is impossible to know what the full record on appeal in a given matter might have been. Without this knowledge, it is impossible to engage in an analysis of the likelihood of success of the appeal without engaging in speculation. But again, that analysis misses the point. Plaintiff has never denied that either trying the remaining cause of action or appealing the dismissed causes of action would have been a futile act. He simply cannot have it both ways. However, it is possible to determine whether an appeal would have been meritorious without reviewing a full record on appeal and without engaging in speculation. As has been stated, the 'meritorious' or 'reasonably prudent party' standard would guard against both the proliferation of futile appeals and unwarranted legal malpractice lawsuits. In the instant matter, it is of critical importance to note that Justice Whalen is the only member of the bench to have analyzed the merits of Plaintiff's potential 39 appeal in the underlying matter. Upon such examination, he concluded that the forfeited appeal was meritorious. (R. 476). Defendants agree with Justice Whalen's conclusion, and submit that the earlier analysis of the merits of the forfeited appeal demonstrates both that a reasonably prudent plaintiff would have appealed the underlying matter in this case, and that such an appeal was likely to succeed. Consequently, Plaintiff waived his right to commence a legal malpractice action against the Brenna Defendants. POINT III THE PUBLIC POLICY CONCERNS RAISED BY THIS MATTER NECESSITATE A FINDING IN FAVOR OF THE APPELLANTS. Justice Whalen's dissenting opinion raises a salient public policy argument regarding the potential for this action to grossly expand litigation against plaintiffs' attorneys, and Defendants share Justice Whalen's concerns. Justice Whalen's opinion states that a decision which permits a plaintiff to terminate his action before trial and/or appeal, and then sue his former attorney would create the expensive and burdensome court dockets the majority sought to avoid. (R. 477). Such a ruling would result in more legal malpractice actions, which, because they involve presenting both the underlying case and the malpractice claims, entail a longer discovery process and more experts. (R. 477). The dissent also posits that permitting the course of action that Plaintiff took here would allow future litigants to select a new defendant (his attorney) that he 40 thinks may be an easier target than the actual tortfeasor in the underlying action. (R. 477). Again, the majority's decision facilitates legal malpractice suits against attorneys where it is still unclear that the party has been harmed. It is simply wrong as a matter of public policy to allow a client to take advantage of an adverse decision where the client has alternatives to suing his attorney. Here, Plaintiff had not even received an adverse decision as to all of his causes of action – one still remained for trial. Permitting a plaintiff to sue his attorney in these circumstances would countenance the filing of a legal malpractice suit at any time during the litigation. This would give a client leverage over his attorney to the point of absurdity. Clients would have the ability to threaten their attorneys with legal malpractice suits upon receipt of an adverse decision or where the attorney makes a tactical decision with which the client is unhappy. A further policy argument went unaddressed by both the majority and the dissent, and Defendants believe that it merits consideration by this Court. Namely, that Plaintiff and his counsel engaged in a particularly pernicious course of action that, if countenanced by this Court, will have destructive ramifications for the practice of law. Plaintiff filed this action for legal malpractice on December 5, 2011. (R. 24- 35). The Stipulation of Discontinuance in the underlying matter was filed on December 16, 2011. (R. 303). Therefore, Plaintiff, by his own admission, filed the 41 instant legal malpractice action while the underlying action was still pending. This timeline clarifies that Plaintiff was represented by Rafael O. Gomez, Esq., the counsel-of-record herein, on the instant legal malpractice action while the underlying action was still pending. This timeline further proves that Plaintiff intentionally acted to prevent the Brenna Defendants from vindicating their representation of Plaintiff in order to file the instant legal malpractice action. These dates are significant because they indicate that Attorney Gomez advised Plaintiff, while the Brenna Defendants still represented Plaintiff, that he should drop his medical malpractice claim, and allow Gomez to represent him in the instant legal malpractice claim instead. Such a mendacious method of practicing law, particularly destructive to the plaintiffs' bar, should not be countenanced by this Court. With the denial of the Brenna Defendants' motion for summary judgment, every plaintiffs' attorney in the Fourth Department currently practices law underneath a sword of Damocles, and is subject to a direction from his client that he discontinue work on a currently- pending, meritorious case, so that the client may sue him for malpractice. If the course of conduct in which Attorney Gomez appears to have engaged is given the imprimatur of this Court, it will have a chilling effect on the willingness of attorneys to take on cases. The Fourth Department's decision has 42 received significant publicity in local and statewide legal publications. Attorneys in New York State are, or should be aware of this decision, and thoughtful lawyers are undoubtedly concerned that their clients might turn on them at any moment and sue for malpractice. These policy considerations call for a response by which attorneys are not subject to sudden and unwarranted legal malpractice suits, but one where parties are not forced to engage in futile appeals. The aforementioned 'reasonably prudent party' standard requiring a litigant to exhaust non-futile meritorious appeals, best balances these concerns. Should this Court adopt that standard, it will find that an analysis of the merits of the potential underlying appeal in this case meets that standard, and that Plaintiff here has thereby forfeited his legal malpractice claim. Based on the foregoing, the Brenna Defendants respectfully request that this Court reverse the decision of the Appellate Division and order that the action be dismissed with prejudice, together with such other and further relief as this Court may deem just, equitable, and proper. Dated: November 22, 2013 Syracuse, New York Respectfully Submitted, SMITH, SOVIK, KENDRICK & SUGNET, P.C. By: E. Hulslander, Esq. Attorneys for Defendant-Appellant, Robert L. Brenna, Jr., Esq. and Brenna, Brenna & Boyce, PLLC Office and P.O. Address 250 S. Clinton St., Suite 600 Syracuse, New York 13202 Telephone No.: (315) 474-2911 ADDENDUM A-1 Case 6:08-cv-06006-CJS-JWF Document 44-3 Filed 08/25/10 Page 173 of 214 1 S. Boghani - Examination by Mr. Brenna 172 2 you? 3 A. Yes. 4 MR. FIELD; Objection to form. 5 MR. BRENNA; Off the record. 6 (Discussion held off the record.) 7 BY MR. BRENNA: 8 Q. So doctor, as of November 2nd of '06 you 9 got written notice of this claim; is that right? 10 A. Yes. 11 MR. WARD: Objection. We have gone .. 12 through this. I mean you have already asked her 13 a bunch of questions about this. 14 MR. BRENNA: Okay. 15 . BY MR. BRENNA: .. 16 Q. And there were attachments beyond the 17 page that we have already discussed today? 18 A. Yes. 19 MR. WARD: In other words -- yeah, these 20 five pages, they followed? 21 THE WITNESS; Yes. 22 BY MR. BRENNA: 23 Q. And does that mean that as of November 24 of '06 you got all of these pages? 25 A. Yes. COMPUTER REPORTING SERVICE D A-2 Case 6:08-cv-06006-CJS-JWF Document 44-3 Filed 08/25110 Page 174 of 214 1 S. Boghani - Examination by Mr. Brenna 173 2 Q. And did you read them? 3 A. Yes. 4 Q. Were you concerned about what they said? 5 A. Yes. 6 Q. Why? 7 A. Because I wanted to find out what should 8 be done about this and whose advice I should 9 take. 10 Q. And you knew at that point that there 11 was a claim being made that you had not treated 12 Mr. Grace properly, right? 13 A. Yes. 14 Q. Which is commonly referred to as 15 malpractice? 16 A. Yes. 17 Q. And you took that seriously? 18 A. Yes. 19 Q. 'But you felt you were bound by the 20 veterans administration as to who you could 21 discuss that with? 22 A. Yes. 23 Q. Doctor, did there ever come a time when 24 you made an entry in Mr. Grace's record stating c······> ......... 25 that you would no longer be his physician? COMPUTER REPORTING SERVICE D A-3 Case 6:0S-cv-06006-CJS-JWF Document 44-3 Filed OS/25/10 Page 175 of 214 ( ' .... ,. , / ...... 1 S. Boghani - Examination by Mr. Brenna 174 2 A. N0 1 I did not. 3 Q. Did there ever come a time in the record 4 where anyone else made a determination that you 5 would no longer be his physician? 6 A. Not that I am aware of. 7 Q. And you saw Mr. Grace after he saw 8 Dr. Williams, right? 9 A. Yes. 10 Q. And you can refer to your notes. 11 MR. BRENNA: Off the record. 12 (Discussion held off the record.) 13 BY MR. BRENNA: 14 Q. Can you tell me what date that was? 15 , .. MR. WARD: How many times,or --because 16 she saw him on more than one time. 17 MR. BRENNA: Just the dates. We don't 18 have to go through all the entries right now. I 19 will get a look at it and I will see if I can 20 skip the 21 MR. WARD: I am just going to show her 22 the dates off of my notes. 23 MR. BRENNA: Rick, knowing you, it's 24 probably accurate. (:::::: 25 MR. WARD: Otherwise we're going to have COMPUTER REPORTING SERVICE D