John W. Grace, Respondent,v.Michael R. Law, et al., Appellants.BriefN.Y.September 17, 2014To 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 REPLY 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 January 28, 2014 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 PRELIMINARY STATEMENT ...................................................................... 1 ARGUMENT POINT I RUPERT AND RODRIGUEZ ARE APPLICABLE AND CONTROLLING HERE; PLAINTIFF MAY NOT DENY BRENNA THE VERY MEANS BY WHICH HIS REPRESENTATION COULD HAVE BEEN VINDICATED ....................................................... 4 A. This case falls within the ambit of Rupert and Rodriguez ............................................................. 4 B. Plaintiff’s public policy arguments are unavailing ................................................................... 8 POINT II PLAINTIFF’S CLAIM THAT PURSUING THE REMAINING ACTION AGAINST THE VA WOULD HAVE LED TO A FULL RECOVERY IS SPECULATIVE ............................................................ 10 POINT III IF THIS COURT EXAMINES THE MERITS OF THE UNDERLYING APPEAL, THE USE OF THE MERITORIOUS OR REASONABLY PRUDENT PARTY STANDARD IS SUPPORTED BY CASE LAW ....................................................................... 12 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 ....................... 12 B. If the Court examines the merits of the then- pending appeal, the appropriate standard of review is whether such an appeal was meritorious ................................................................. 13 iii C. Plaintiff’s opposition to the meritorious/ reasonably prudent party standard is not supported by applicable caselaw; this lack of opposition concedes the merits of the appeal .......................................................................... 16 D. The meritorious/reasonably prudent party standard addresses the public policy concerns raised by the Fourth Department ................................ 17 POINT IV THE MAJORITY’S LIKELY TO SUCCEED STANDARD SHOULD BE REJECTED, BUT FOR DIFFERENT REASONS THAN THOSE POSITED BY PLAINTIFF ................................................ 19 POINT V THE FORFEITED UNDERLYING APPEAL PLAINLY HAD MERIT, AND PLAINTIFF SHOULD HAVE PURSUED IT INSTEAD OF SUING HIS LAWYERS .................................................... 21 A. Under the meritorious/reasonably prudent party standard, Brenna is entitled to summary judgment ..................................................................... 21 B. Brenna’s motion for summary judgment was not premature .............................................................. 24 1. Plaintiff was not owed discovery at the time the motion for summary judgment was filed ............................................. 25 2. Plaintiff was able to address the merits of the appeal; this analysis involved publicly available information ............................ 27 POINT VI THE EVIDENCE INDICATING THAT GRACE’S CURRENT ATTORNEY DIRECTED GRACE TO DISCONTINUE THE UNDERLYING ACTION PROVIDES A FURTHER POLICY JUSTIFICATION FOR GRANTING BRENNA’S MOTION FOR SUMMARY JUDGMENT ................................................ 29 CONCLUSION ................................................................................................. 31 iv TABLE OF AUTHORITIES Page Cases: Allen Decorating, Inc. v. Oxendine, 225 Ga.App. 84, 483 S.E.2d 298 (1997) .......................................................... 13 Benson v. Murr, 23 AD2d 756 (2d Dept 1965) ...................................................................... 27 Blasgrove v. Cox, 294 AD2d 526 (2d Dept 2002) .................................................................... 27 Bost v. Thomas, 275 A.D.2d 513 (3d Dept 2000) .................................................................. 24 Brassette v. Exnicios, 92 So.3d 1077 (2012) ....................................................................................... 15 Bravo v. U.S., 403 F.Supp.2d 1182 (S.D. Fla. 2005) .......................................................... 22, 23 Cira v. Dillinger, 903 So.2d 367 (2005) ....................................................................................... 16 Costa v. U.S. Dept. of Veteran's Affairs, 845 F.Supp. 64 (D.R.I. 1994) ...................................................................... 22, 23 Djoganopolous v. Polkes, 95 A.D.3d 933 (2d Dept. 2012) ................................................................... 24 Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) ................................................................... 15, 16 In Re Tallon, 86 A.D.2d 897 (3d Dep't 1982) ................................................................... 8 Jones v. Law Firm of Hill and Ponton, 223 F. Supp.2d 1284 (M.D. Fla. 2002) ............................................................ 13 Leibel v. Johnson, 291 Ga. 180, 728 S.E.2d 554 (2012) ................................................................ 16 MB Indus., LLC v. CNA Ins. Co., 74 So.3d 1173 (2011) ....................................................................................... 14, 15 McDermott v. Torre, 56 N.Y.2d 399 (1982) .................................................................................. 8 v Palumbo v. Shapiro, 81 So.3d 923 (2011) ......................................................................................... 16 Penn Palace Operating, Inc. v. Two Penn Plaza Assocs., 215 A.D.2d 231 (1 st Dept 1995) .................................................................. 27 Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051 (Fla. Dist. Ct. App. 1991) ...................................................... 15, 16 Rodriguez v. Fredericks, 213 A.D.2d 176 (1 st Dept 1995) ............................................................. 4, 5, 6, 7 Rupert v. Gates & Adams, P.C., 83 A.D.3d 1393 (4 th Dept 2011) ................................................... 4, 5, 6, 7, 9, 14 Sands v. New York, 49 A.D.3d 444 (1 st Dept 2008) ......................................................................... 20 Saratoga Assocs. Landscape Architects v. The Lauter Development Group, 77 A.D.3d 1219 (3d Dept 2010) .................................................................. 24 Saussy v. Bonin, 2013 WL 4748236, at *4-*5 (La.App. 4 Cir. Sept. 4, 2013) ........................... 15 Semenza v. Nevada Medical Liability Ins. Co., 104 Nev. 666, 765 P.2d 184 (1988) ................................................................. 16 Stoian v. Reed, 66 A.D.3d 1185 (3d Dept 2009) .................................................................. 24 Tivoli v. U.S., 1996 WL 1056005, at *3, (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) ................................................................ 22, 23 U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., 2013 WL 4505800, at *2 (D. Nev. 2013) ........................................................ 15, 16 U.S. v. Orleans, 425 U.S. 807 (1976) ..................................................................................... 22 Zinter Handling, Inc. v. Britton, 46 A.D.3d 998 (3d Dept 2007) .................................................................... 25 Statute: CPLR § 3214 ..................................................................................................... 26 PRELIMINARY STATEMENT This Reply Brief is submitted in further support of the appeal of Defendants- Appellants Robert L. Brenna, Jr., Esq. and Brenna, Brenna, & Boyce, PLLC ("Brenna" or "Defendant") from the Fourth Department's July 19, 2013 Decision and Order. The underlying action began when John W. Grace ("Plaintiff") brought a claim for medical malpractice against the United States of America in connection with a Veterans' Administration ("VA") facility's treatment of Plaintiff's right eye. Plaintiff first approached Brenna regarding representation in June of 2006. After extensive investigation, work, and preparation, Brenna filed an administrative claim, in the form of an SF-95, on Plaintiff's behalf, on or about August 9, 2006. When the Government failed to respond to the administrative claim within the applicable six-month period, Brenna was replaced and the file was transferred to Michael R. Law of Phillips Lytle, LLP (hereinafter collectively referred to as 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. The U.S. Attorney initially indicated that Dr. Shobha Boghani, Plaintiff's treating physician at the VA, was a Government employee, but on October 7, 2008, he brought a motion for leave to file a third-party complaint against Boghani and the University of Rochester ("U of R"), Dr. Boghani's employer. In this motion, 2 the U.S. Attorney reversed course and claimed that Dr. Boghani was not a VA employee. At this point, Phillips Lytle declared a conflict with the U of R. Brenna took the case back from Law in December of 2008, and moved to amend the complaint to include additional parties as Defendants. Discovery ensued, after which Hon. Charles J. Siragusa then issued a decision dismissing Plaintiff's claims against Dr. Boghani and the U of R. Judge Siragusa's decision left Plaintiff with his claim that the VA negligently failed to reschedule Plaintiff's July 2003 ophthalmology appointment, thereby causing permanent injury to his eye. Instead of trying the case and appealing Judge Siragusa's decision, Plaintiff requested that Brenna discontinue the action. Plaintiff first made the request verbally by phone, and then, through his new attorney and counsel of record herein, Rafael O. Gomez of LoTempio and Brown, who issued a written directive that Brenna discontinue the action immediately. (R. 300). Brenna complied with this direction. Then, while still represented by Brenna, Plaintiff turned around and sued Brenna for legal malpractice in the underlying matter, despite having directed Brenna to discontinue the underlying action. In so doing, Plaintiff deprived himself of his method of recourse, and he deprived Brenna of the tools he needed to vindicate his representation of Plaintiff. Brenna moved for summary judgment and dismissal of Plaintiff’s complaint on these and other grounds. Supreme Court denied Defendant's motion and the 3 Fourth Department affirmed this decision by a four-to-one margin, over Justice Whalen's strenuous dissent. Brenna then moved the Fourth Department for leave to appeal to the Court of Appeals, which the Fourth Department granted, and this appeal ensued. Once Plaintiff voluntarily discontinued the underlying action, he could not then pursue Brenna for legal malpractice as a matter of law. In his initial brief, Brenna established that either: 1) existing New York caselaw governs, and Plaintiff waived his right to bring the legal malpractice claim or, 2) if this is a case of first impression, Plaintiff cannot establish proximate cause because the underlying forfeited appeal was meritorious. In opposition, Plaintiff offers scattered policy arguments not grounded in New York caselaw; indeed, he Plaintiff presents no opposing legal analysis to Defendant's argument that the standard for reviewing the underlying appeal is a 'meritorious' standard, and that the underlying appeal here had merit. Accordingly, Brenna respectfully submits that Supreme Court erred when it denied his motion for summary judgment. 4 ARGUMENT POINT I RUPERT AND RODRIGUEZ ARE APPLICABLE AND CONTROLLING HERE; PLAINTIFF MAY NOT DENY BRENNA THE VERY MEANS BY WHICH HIS REPRESENTATION COULD HAVE BEEN VINDICATED. A. This case falls within the ambit of Rupert and Rodriguez. To be clear, Brenna does not suggest the implementation of a per se rule. As stated on page 33 of his initial appellate brief, Brenna does "not advocate for a bright-line standard that would require all appeals to be exhausted before a legal malpractice action can be brought." (Appellate brief of Defendants-Respondents at 33). Rather, Brenna relies on Rupert v. Gates & Adams, P.C. (83 A.D.3d 1393 [4 th Dept 2011]) and Rodriguez v. Fredericks (213 A.D.2d 176 [1 st Dept 1995]) for the proposition that where a client deprives his attorney of the means by which he could have vindicated his representation and corrected an adverse occurrence, the client cannot then sue for malpractice. 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 5 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 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)). In Rodriguez, the plaintiffs sued their former counsel following a trial arising out of the plaintiffs' activities in the field of commodities trading and brokerage, which resulted in an award. (see Rodriguez, 213 AD2d at 176). After retaining new counsel for appeal, the plaintiffs settled the judgment, and an appeal never occurred. (Id. at 177). The plaintiffs then sued their trial counsel for malpractice. (Id. at 178). The First Department affirmed the Supreme Court's order granting summary judgment to the defendant law firm, reasoning that "plaintiffs, by their own conduct in voluntarily settling prior to the appeal, precluded defendant from pursuing the very means by which he could have vindicated his representation." (Id.). 6 The Rupert and Rodriguez rationale 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. 476-77). The tools needed for vindication in this instance were Plaintiff's remaining claim against the VA, and an appeal of Judge Siragusa's decision that, as Rupert contemplated, "could have been corrected on appeal." (Rupert, 83 AD3d at 1396). Indeed, Brenna never advised Plaintiff to discontinue his case. (R. 295-97). Plaintiff did not discontinue his case until his new counsel, Rafael O. Gomez, directed Brenna to discontinue. (R. 300). The decision to discontinue was made by Plaintiff, and he must bear the consequences of that decision. Plaintiff attempts to distinguish the instant case from Rupert and Rodriguez by claiming that those cases involved the discontinuance of the claims which formed the basis of the legal malpractice action, while the instant matter involves the discontinuance of Plaintiff's remaining cause of action against the VA and the forfeit of an appeal. (see Brief of Plaintiff-Respondent at 12-13). This attempt at a distinction ignores the fact that the instant legal malpractice action arose from the failure to sue Dr. Boghani and the U of R individually. Brenna attempted to remedy this by moving to amend the complaint almost immediately upon receipt of the government’s Rule 26 disclosures, which indicated Dr. Boghani was an 7 independent contractor, and Brenna was denied the opportunity to amend the complaint by Judge Siragusa's decision. (R. 100, 103-18). When Plaintiff forfeited the appeal of Judge Siragusa's decision, he discontinued claims which form the basis of the instant action for legal malpractice. More importantly, however, the common denominator between Rupert, Rodriguez, and this action is that in each action, the plaintiff deprived his counsel of the opportunity to remedy an adverse decision and to vindicate his representation. Plaintiff could have collected the full measure of his damages at trial against the VA, but chose not to try that cause of action. In addition, Plaintiff could have appealed and overturned Judge Siragusa's decision, but chose not to do so. The forfeited trial and/or appeal were the tools Brenna needed to vindicate his representation of Plaintiff. Instead, Plaintiff voluntarily discontinued the underlying case, depriving Brenna of those tools, and precluding pursuit of the very means by which Defendant's representation of Plaintiff in the underlying action could have been vindicated. Accordingly, Plaintiff is barred by the applicable caselaw in the First and Fourth Departments 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. 8 B. Plaintiff's public policy arguments are unavailing. Plaintiff spuriously contends that attorneys will advise their clients against appealing an adverse decision to protect against a legal malpractice claim. (see Plaintiff's-Respondent's brief at 15). In other words, an attorney who thinks he may have committed malpractice would advise his client to withdraw a claim to hide that potential malpractice, thereby committing a fraud and an ethical violation. This argument is nonsensical. Attorneys have an obligation to disclose their own acts of malpractice to their clients. (See, e.g., In Re Tallon, 86 A.D.2d 897, 898 [3d Dep't 1982]). The attorney representing the client is in the best position to "identify and correct his or her malpractice." McDermott v. Torre, 56 N.Y.2d 399, 408 (1982) (discussing policy of mitigation in continuous treatment doctrine). In light of this duty, it is inconceivable that attorneys would place their professional status in jeopardy by attempting to cover up malpractice with an ethical violation. Moreover, it is inept to make policy decisions based on the premise that attorneys are more likely than not to act unscrupulously when confronted with an ethical dilemma. Plaintiff next expresses concern for the costs associated with pursuing an appeal, but ignores the fact that an attorney and his client are free to agree to an alternative arrangement regarding those costs. (see Plaintiff's-Respondent's brief at 15-16). Not all costs of litigation are necessarily passed along to the client, and 9 speculation as to the cost arrangements of as-yet unfiled lawsuits is unconvincing. Plaintiff then states that Brenna's position would force litigants to pursue every possible appeal to vindicate representation, which would represent a burden on the court system. (see id. at 16). This misconstrues Brenna's argument. Brenna does not argue that all appeals must be exhausted before a plaintiff can bring a legal malpractice action. Brenna instead contends that a client cannot affirmatively deprive his counsel of the tools to vindicate his representation, then sue his counsel for malpractice. Frivolous appeals are not tools that would serve to vindicate representation, and the meritorious appeal standard for which Brenna argues addresses Plaintiff's concern regarding frivolous appeals. Next, Plaintiff argues that a Rupert-based finding for Brenna could bar litigants from pursuing an appeal because the statute of limitations on the legal malpractice claim may have expired by the time the appeal is completed. (see Plaintiff's-Respondent's brief at 16-17). Justice Whalen addressed this concern at the Fourth Department, stating that a plaintiff could file the legal malpractice suit before the statute of limitations expired, and then move for a stay pending the outcome of the appeal. (R. 477). Next, Plaintiff conclusorily claims that a Rupert- based finding for Brenna would discourage settlements because attorneys and clients are resistant to settle with appeals pending. (see Plaintiff's-Respondent's brief at 17). This argument ignores the fact that the presence of an appeal can 10 often be used as leverage during settlement discussions, and, as Justice Whalen noted, an outstanding legal malpractice case could interfere more with settlement than an outstanding appeal. (R. 478). Finally, in response to the public policy concern that the Fourth Department's decision allows plaintiffs to target attorneys as defendants, Plaintiff cavalierly states that "attorneys can avoid being targeted by their clients by not committing malpractice." This "advice" entirely misses the point of the very real public policy concern: that plaintiffs may be able to choose between suing the tortfeasor who originally harmed them and their attorney. Such an arrangement would allow plaintiffs to target their attorneys where they feel that a legal malpractice action is the easier path to compensation. POINT II PLAINTIFF'S CLAIM THAT PURSUING THE REMAINING ACTION AGAINST THE VA WOULD NOT HAVE LED TO A FULL RECOVERY IS SPECULATIVE. Plaintiff next downplays the importance of his decision to affirmatively end the underlying action by contending that the remaining claim against the VA would not have led to a full recovery of damages. (see Plaintiff's-Respondent's brief at 18-19). In support of this claim, Plaintiff offers specious and speculative reasoning. First, the fact that Brenna advised Plaintiff that the pursuit of the remaining claim would involve expense and that there was no certainty of outcome 11 is of no matter to the amount that Plaintiff might have recovered. Brenna's advice was intended to make Plaintiff aware of all relevant considerations involving the pursuit of his claim against the VA. (R. 295-97). Brenna never advised Plaintiff to terminate his action, he merely informed Plaintiff of the obvious facts that a trial would involve time and expense, and offered a candid recitation of the uncertainty of litigation. (R. 295-97). Plaintiff's contention that the defenses available to the VA in a potential action precluded a full recovery is pure speculation. (see Plaintiff's-Respondent's brief at 18). The fact that the VA would have had defenses available to it at a hypothetical trial is dispositive of nothing. It is impossible to determine which defenses the VA would have actually employed at a hypothetical trial, nor the composition of the jury, nor any one of a myriad variables that would present at trial. Plaintiff's attempt to predict the results of a hypothetical trial is an exercise in guesswork that should be ignored. Likewise, Plaintiff's supposition that the VA's settlement offer indicates that Plaintiff could not have obtained a full recovery is also speculative. (Id. at 18-19). Defendants rarely, if ever, make offers that are anywhere near the full value of a case during settlement negotiations, so the fact that the VA's offer was for less than the full value cannot be interpreted as a statement of the value of the remaining claim. Settlement offers and negotiations are not a measure of the value of a claim, only an indication of what a party is 12 willing to pay. In sum, Plaintiff's contention that he could not have obtained a full recovery on his remaining cause of action is pure conjecture and should be ignored. Trials and jury awards contain too many variables to make such claims with any degree of accuracy. Plaintiff has presented no evidence to show that anything prevented him from obtaining a full recovery at trial, and, as such, a full recovery was available if he prevailed at trial. POINT III IF THIS COURT EXAMINES THE MERITS OF THE UNDERLYING APPEAL, THE USE OF THE MERITORIOUS OR REASONABLY PRUDENT PARTY STANDARD IS SUPPORTED BY CASELAW. 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. The discussions in both Point III of Plaintiff's opposition, as well as in the cases cited by the majority at the Fourth Department regarding the merits of the underlying appeal, ignore the fact that Plaintiff forfeited a pending cause of action that was ripe for trial. Consequently, it is not necessary for this Court to reach the issue of the merits of the underlying appeal. Brenna contends 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 13 pending for trial. Sister states have held than in such a circumstance, 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] (citation omitted)). 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)). As a result, it is not necessary for this Court to examine the merits of the underlying appeal. B. If the Court examines the merits of the then-pending appeal, the appropriate standard of review is whether such an appeal was meritorious. The meritorious or reasonably prudent party standard is best because it finds broad support from New York caselaw and from sister states, and because it balances the policy goal of discouraging futile appeals with a desire to protect the bar from improper legal malpractice suits. 14 In its decision in Rupert, the Fourth Department implied its support for the meritorious standard when it reasoned that the defendant attorneys' errors "could have been corrected on an appeal from the final judgment in the matrimonial action," but, because the plaintiff consented to the dismissal of any such appeal as part of a settlement agreement, he waived the ability to bring a legal malpractice action. (see Rupert, 83 AD3d at 1396 (internal citations omitted) (emphasis added)). The presence of the phrase 'could have been corrected' indicates the Fourth Department's concept of appeals that attorneys can use to vindicate their representation only includes meritorious appeals, i.e., those appeals that are capable of correcting errors. Frivolous or futile appeals, conversely, are not tools that attorneys can use to vindicate their representation. Therefore, applicable New York caselaw provides an intellectual basis on which to conclude that where a client denies his attorney the opportunity to pursue a meritorious appeal, that client waives his ability to sue the attorney for malpractice. The standard is more directly articulated by the Louisiana Supreme Court in MB Indus., LLC v. CNA Ins. Co. (74 So.3d 1173 [2011]), 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 was recently affirmed in Louisiana. 15 (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]). Even the caselaw cited by the Fourth Department majority 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 v. Allen, 118 Nev. 216, 221, 43 P.3d 345, 348 [2002]). 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. (see Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So.2d 1051, 1053 [Fla. Dist. Ct. App. 1991]). 16 Although '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 caselaw envisions an examination of the merits of the pending appeal as a means of determining whether proximate cause has been severed. Where the pending appeal has merit, these courts find a lack of proximate cause to any claims of legal malpractice. C. Plaintiff's opposition to the meritorious/reasonably prudent party standard is not supported by applicable caselaw; this lack of opposition concedes the merits of the appeal. Where Brenna's argument in favor of the meritorious/reasonably prudent party standard finds ample support in our sister states, Plaintiff's opposition to the meritorious/reasonably prudent party standard consists of the conclusory statement, without legal citation and unsupported by any jurisprudential reasoning, the merits of an underlying appeal do not sever proximate cause. Brenna has established that the courts of Louisiana, Georgia, Nevada, and Florida have determined that the presence of a meritorious underlying appeal severs proximate causation, which is an element for legal malpractice in each of those states. (see Palumbo v. Shapiro, 81 So.3d 923, 930 [2011]; Leibel v. Johnson, 291 Ga. 180, 181, 728 S.E.2d 554, 555 [2012]; Semenza v. Nevada Medical Liability Ins. Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185 [1988]; Cira v. Dillinger, 903 So.2d 367, 370 [2005]) (stating that proximate cause is an 17 element of legal malpractice in Louisiana, Georgia, Nevada, and Florida, respectively). Plaintiff's opposition consists of the mere conclusory statement that Brenna is incorrect, and that the relative merits of a pending appeal are not linked to proximate cause. However, Plaintiff cites to no authorities of any kind – no caselaw, no treatises, no law review articles or any other exemplars of legal reasoning – to oppose Brenna's argument. Plaintiff's hollow statement is an insufficient basis on which to ignore the applicable caselaw cited by Brenna. The absence of an opposition concedes the meritorious/reasonably prudent party standard is the appropriate standard to apply. D. The meritorious/reasonably prudent party standard addresses the public policy concerns raised by the Fourth Department. Justice Whalen addressed most of Plaintiff's policy concerns regarding the meritorious/reasonably prudent party standard in his dissenting opinion. As for the statute of limitations, 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 said any concern regarding interference with settlement negotiations was speculative. (R. 477-78). Justice Whalen plainly states 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 18 damages. (R. 478). In fact, Justice Whalen concludes when Plaintiff affirmatively terminated the underlying action, Plaintiff breached his duty to mitigate his damages. (R. 478). Justice Whalen addresses the potential burdening of the court system: he 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 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). Indeed, as Justice Whalen notes: permitting the course of action that Plaintiff took here would allow future litigants to select a new defendant (his attorney) that he 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 attorneys committed malpractice or that the party has been harmed. 19 POINT IV THE MAJORITY'S LIKELY TO SUCCEED STANDARD SHOULD BE REJECTED, BUT FOR DIFFERENT REASONS THAN THOSE POSITED BY PLAINTIFF. 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, which the Fourth Department majority opinion employed, 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 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, 20 because the appeal never came about, it could not possibly exist. The majority's argument also falls short because there are variables at play in an appeal in addition to the documents comprising the record. For example, the composition of the panel and the relative talents of the arguing attorneys can also have an effect on the outcome of an appeal. These variables make a determination of likelihood of success impossible. However, it is possible to objectively determine if an appeal has merit. (see Sands v. New York, 49 A.D.3d 444, 444 [1 st Dept 2008]) (defining 'meritorious' appeals as those that are not patently groundless, frivolous, or legally defective). 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 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 Brenna. 21 POINT V THE FORFEITED UNDERLYING APPEAL PLAINLY HAD MERIT, AND PLAINTIFF SHOULD HAVE PURSUED IT INSTEAD OF SUING HIS LAWYERS. A. Under the meritorious/reasonably prudent party standard, Brenna is entitled to summary judgment. Brenna has established that an appeal of Judge Siragusa's decision was, at a minimum, meritorious. Plaintiff, in his brief, provides no opposition, nor does he make any attempt to analyze the merits of the forfeited appeal. Plaintiff instead cites to cases involving the reasonably prudent party standard as it applies to medical malpractice cases. Plaintiff cannot support with caselaw the allegation that the forfeited appeal would have been unsuccessful, and therefore, he concedes the fact that the appeal was meritorious. In light of Defendant's analysis of the merits of the waived appeal, and Plaintiff's complete lack of opposition, it is established that the forfeited appeal was meritorious, and therefore, that when Plaintiff forfeited the appeal, he deprived Brenna of the tools necessary to vindicate his representation. As a consequence, Brenna is entitled to summary judgment as a matter of law. Brenna respectfully refers the Court to his initial brief for the full analysis of the merits of the forfeited appeal, but an abridged version follows herein. The forfeited appeal principally concerns the high likelihood that the Second Circuit would have determined Dr. Boghani to be a government employee, and 22 therefore, need not have been named individually as a defendant. As the Court is aware, "the Federal Government [is] 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 Federal Tort Claims Act ("FTCA") as "whether [the individual's] day-to-day operations are supervised by the Federal Government." (Orleans, 425 U.S. at 815). The Orleans test has been applied to doctors who have contracted to work at government facilities, and it has been used to establish that those doctors were government employees under the FTCA. (see Bravo v. U.S., 403 F.Supp.2d 1182, 1191-92 [S.D. Fla. 2005]) (reasoning that contracted-for-physician was government employee under the FTCA upon examination of doctor's contract with the government); (Tivoli v. U.S., 1996 WL 1056005, at *3, [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]) (finding that radiologists who provided services to the National Institute of Health, and who were also subject to government oversight of their hours and work product were government employees under the FTCA); (Costa v. U.S. Dept. of Veteran's Affairs, 845 F.Supp. 64, 68 [D.R.I. 1994] (doctor was a government employee because of VA Hospital oversight). 23 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). The contract also included provided that Dr. Boghani would adhere to all VA initiatives, that the VA would conduct quality reviews of Dr. Boghani, and that the VA could evaluate the quality of her services, without controlling her professional judgments. (R. 136, 137). Therefore, as in Tivoli, Costa, and Bravo, Dr. Boghani was under the supervision of the VA, and it is likely that the Second Circuit on appeal would have determined that Dr. Boghani was a government employee as contemplated by the FTCA. As a consequence, there is reasonable cause to believe that a valid cause of appeal existed, but was forfeited by Plaintiff, and it follows that this case meets the meritorious/reasonably prudent party standard. Moreover, and of critical note, Justice Whalen is the only member of the bench to have analyzed the merits of Plaintiff's potential 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 24 submit in light of the merits of the forfeited appeal, a reasonably prudent party would have brought it. Consequently, Plaintiff waived his right to commence a legal malpractice action against Brenna and summary judgment was improperly denied. B. Brenna's motion for summary judgment was not premature. New York Courts consistently recognize that the grant of summary judgment before discovery is appropriate, and not premature where it cannot be shown how discovery might reveal the existence of additional material facts. (see Djoganopolous v. Polkes, 95 A.D.3d 933, 935-36 [2d Dept. 2012]). Summary judgment has been consistently upheld where existing statements were a sufficient basis on which to grant summary judgment, and where additional discovery would not yield additional material facts. (see Bost v. Thomas, 275 A.D.2d 513, 515 [3d Dept 2000]). The Third Department has also held that where a "plaintiff's conjecture that further discovery might support its claim" represents "nothing more than the 'mere hope that evidence sufficient to defeat the motion may be uncovered,'" it was inappropriate to stay a motion for summary judgment pending further discovery. (Saratoga Assocs. Landscape Architects v. The Lauter Development Group, 77 A.D.3d 1219, 1222 [3d Dept 2010] (quoting Stoian v. Reed, 66 A.D.3d 1185, 1188 [3d Dept 2009])). 25 Here, Plaintiff has provided no "'evidentiary showing suggesting that completion of discovery will yield material and relevant evidence.'" (Id.) (quoting Zinter Handling, Inc. v. Britton, 46 A.D.3d 998, 1001 [3d Dept 2007]). Instead, Plaintiff makes the blanket, and incorrect, statement that summary judgment is premature because no discovery has been conducted. (see Plaintiff's-Respondent's brief at 27). Plaintiff's argument, therefore, amounts to mere conjecture that discovery might uncover evidence helpful to his case. Plaintiff has not submitted any evidence which suggests additional discovery may yield material evidence. Such speculation, on its own, is insufficient to defeat a motion for summary judgment. 1. Plaintiff was not owed discovery at the time the motion for summary judgment was filed. In his opposition brief, Plaintiff attempts to depict discovery vis-à-vis the summary judgment motion as an attempt by the Defendants to withhold any discovery materials in an attempt to deprive Plaintiff of the opportunity to defeat a summary judgment motion. (see Plaintiff's-Respondent's brief at 28). This argument mischaracterizes the state of discovery at the time Brenna moved for summary judgment. First, Defendant treated Plaintiff's discovery demands appropriately and second, none of the facts that are relevant to Defendant's motion for summary judgment and subsequent appeal required any further discovery. Plaintiff's description of the state of discovery at the time that the motion for 26 summary judgment was decided is incomplete. On March 6, 2012, a pretrial conference was held before Judge Troutman's law clerk. Initially, the purpose of the pretrial conference was to set a schedule for discovery. At the conference, however, it became apparent that one or both sets of Defendants wished to file a motion for summary judgment. As a result, the Court set a return date of May 4, 2012 for any motions for summary judgment that the Defendants wished to file. The Court further set forth that, in the event that Plaintiff’s cause of action survived any motions for summary judgment, a conference would be held immediately after the motions were argued on May 4, 2012. At this post-argument conference, the Court would then promulgate a schedule for discovery. On or about April 26, 2012, all parties agreed, and the Court consented, to adjourn the arguments regarding the pending motion for summary judgment until July 18, 2012. Pursuant to CPLR § 3214, discovery in this matter was stayed until the pending motion for summary judgment was resolved. Importantly, Judge Troutman denied Plaintiff's motion to compel/preclude. Next, and critically, there is only one fact in the underlying action that is relevant to Brenna's argument: Plaintiff voluntarily discontinued the underlying action. This fact is undisputed. Brenna's argument is a legal one, not a factual one. Brenna, in his appellate brief, showed conclusively that Plaintiff voluntarily 27 discontinued the underlying action. Plaintiff does not refute this fact, and it requires no further discovery. It is the only important fact on this appeal, and no amount of discovery can change what Brenna has proven and what Plaintiff has admitted. Because Plaintiff voluntarily discontinued the underlying action, Brenna is entitled to summary judgment. 2. Plaintiff was able to address the merits of the appeal; this analysis involved publicly available information. Plaintiff spuriously posits that he was unable to address the merits of the forfeited appeal because discovery had not been completed at the time of Brenna's motion for summary judgment. (see Plaintiff's-Appellant's brief at 28-29). This argument is unconvincing, because the analysis of the merits of the underlying forfeited appeal involves publicly available information, which Brenna would not necessarily have been obligated to disclose during discovery. (see Blasgrove v. Cox, 294 AD2d 526, 526 [2d Dept 2002]) (holding that "production of documents in a prior action should not be compelled to the extent that they are available as a matter of public record") (citing Penn Palace Operating, Inc. v. Two Penn Plaza Assocs., 215 A.D.2d 231, 231 [1 st Dept 1995], Benson v. Murr, 23 AD2d 756, 756 [2d Dept 1965]). Addressing the merits of the underlying appeal involves an investigation into Dr. Boghani's contract with the VA, and the level of oversight that the VA retained over her day-to-day practice. Accordingly, Brenna's analysis of the merits of the 28 underlying appeal referred to the contract between Dr. Boghani and the VA, as well as Dr. Boghani's deposition. The contract and the deposition transcript were electronically filed in the Electronic Case Filing system of the Western District of New York during the underlying action. As the contract appears in the instant record on appeal, and as the deposition appears in the addendum to Defendant's initial brief, they bear the stamp of the Western District's electronic filing system. (R. 125-154, addendum to Appellate brief of Defendants-Respondents). These documents were and are available to any member of the public, and they are sufficient to establish that the underlying appeal had, at a minimum, some merit. Both Plaintiff and Defendant had the same opportunity to review the same documents and analyze the level of supervision that the VA maintained over Dr. Boghani. However, only Defendant conducted the analysis. Plaintiff could have reviewed the same contract and offered a different analysis, but did not do so. Plaintiff's lack of opposition to the fact that the forfeited appeal had merit is a concession that it did have merit, and not a reflection of incomplete discovery. 29 POINT VI THE EVIDENCE INDICATING THAT GRACE'S CURRENT ATTORNEY DIRECTED GRACE TO DISCONTINUE THE UNDERLYING ACTION PROVIDES A FURTHER POLICY JUSTIFICATION FOR GRANTING BRENNA'S MOTION FOR SUMMARY JUDGMENT. In his initial appellate brief, Brenna set forth the timeline of how the instant legal malpractice action was filed vis-à-vis the underlying legal malpractice action. Specifically, 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 filed the instant legal malpractice action while the underlying action was still pending. Moreover, 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. Although this timeline is not dispositive, it indicates that Attorney Gomez advised Plaintiff, while Brenna still represented Plaintiff, that he should drop his medical malpractice claim, and allow Gomez to represent him in the instant legal malpractice claim instead. Taking Plaintiff's contentions on this point in turn, Brenna did not advise Plaintiff to discontinue his case in the email referenced by Plaintiff. (R. 295-97). Brenna merely advised Plaintiff of the pros and cons to consider as Plaintiff decided whether to continue. (Id.). Regarding the statute of limitations, Plaintiff has not set forth the relevant dates to demonstrate the time constraints he was 30 under, however, even if the statute of limitations was set to expire against the Phillips Lytle Defendants, Plaintiff could have filed the complaint and then requested a stay until his representation was fully transferred from Brenna to his current counsel. In addition, Brenna waited until Attorney Gomez's direction to discontinue the action because he had requested Plaintiff direct him in writing to discontinue, and Plaintiff did not do so. Therefore, it appears as though Plaintiff discontinued the medical malpractice action in favor of the instant legal malpractice action on the advice of Gomez, while he was still represented by Brenna. This apparent course of conduct should not receive the imprimatur of this Court, because it will have a chilling effect on the willingness of attorneys to take on cases, which will result in restricted access to the court system for potential plaintiffs. These policy considerations necessitate 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. CONCLUSION Based on the foregoing, Defendants-Appellants Robert L. Brenna, Jr., Esq. and Brenna, Brenna & Boyce, PLLC 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: January 28,2013 Syracuse, New York Respectfully Submitted, SMITH, SOVIK, KENDRICK & SUGNET, P.C. Attorneys for Defendants-Appellants, Robert L. Brenna, Jr., Esq. and Brenna, Brenna & Boyce, PLLC Office and P.O. Address 250 S. Clinton S1., Suite 600 Syracuse, New York 13202 Telephone No.: (315) 474-2911 31