Short Form OrderSUPREME COURT - STATE OF NEW YORK

Present:HON. JOSEPH COVELLO

Justice

SKYLINE CONSTRUCTION and RESTORATIONCORP.,

TRILJAS, PART NASSAU COUNTY

Index No. :08867/03Plaintif,

Motion Seq. No. :03, 04-against-

Motion Date: 04/13/05

JACK L. GLASSER, P. , JACK L. GLASSER,IRA S. ILOWITE and IRA ILOWITE AGENCY,

xxx

Defendants.

The following paper read on this motion:Notice of Motion ........................................Notice of Cross Motion...............................Reply.................................................. ..........

The motion by defendants, Jack L. Glasser, P.C., and Jack L. Glasser (collectively

known as "Mr. Glasser ), for an Order of this Court, pursuant to CPLR 3212, granting

defendant, Mr. Glasser, summar judgment dismissing the complaint in its entirety is

granted.

The cross-motion by plaintiff, Skyline Constrction and Restoration Corp.

Skyline ), for an Order of ths Court, pursuantto CPLR 3212, awarding plaintiff

summar judgment on the first and second causes of action, and dismissing the defendant

Mr. Glasser s three affirmative defenses is denied.

This is an action to recover damages for the alleged legal malpractice of Mr.

Glasser, arsing out of Mr. Glasser s representation and defense of Skyline in an

Sky line v Glasser

underlying personal injury action. Essentially, it is Skyline s contention that Mr. Glasser

was negligent in an underlying personal injury action entitled Wilson Vasquez and

Lynette Vasquez v. Skyline Construction & Restoration Corp. And Benny s Sign and

Signs , in Supreme Court, Kings County, Index No. 18968/00 (hereinafter "the underlying

action

As set fort in the underlying complaint, the plaintiff in the underlying action

Wilson Vasquez, alleged that the underlying action arose when he fell from a ladder on

March 2 2000 while working at a building owned by Skyline in Jamaica, New York, in

the course of his employment with Benny s Sign and Signs. It is clear from the

underlying record that Wilson Vasquez sustained commnuted fractures of both the left

and right calcaneous, which necessitated multiple surgical procedures. Vasquez was also

hospitalized some three weeks after the accident at Mar Immaculate Hospital, where he

underwent two separate surgical procedures. In a report dated March 27 , 2002

Vasquez s orthopedist described the nature of the surgeries, which initially involved open

reduction and internal fixation of both ca1caneous fractures, and subsequent removal of

the hardware and bone grafting procedures. In his report, Vasquez s orthopedist

described Vasquez as suffering from a marked limp of the right lower extremity, minimal

motion bilaterally of both anes , and an inability to stand on the heels or toes of either

foot.

Skyline v Glasser

Against the backdrop of Mr. Vasquez having fallen from a ladder while working at

Skyline s building, defendant herein, Mr. Glasser, was retained, at the beginning of July

2000, to represent Skyline in the underlying action. The principal of Skyline Sarwar

Riaz, approached Mr. Glasser with a summons and complaint in early July 2000 that had

been served upon Skyline by counsel for the Vasquezes. Apparently, when Mr. Riaz first

brought the complaint to Mr. Glasser in early July, 2000, he represented that Skyline had

no insurance coverage for the claims. Thus, on July 13, 2000 Mr. Glasser, in a letter to

Mr. Riaz, acknowledged receipt of the complaint and advised Mr. Riaz that he would

interpose an answer to the complaint based upon his representation to Mr. Glasser that

Skyline was not covered for the claim. Contrar to the allegations in plaintiffs

complaint, at no time during this initial meeting, did Mr. Riaz ever state to Mr. Glasser

that Skyline had given notice of the occurrence to its insurance carer, or agent, Ira S.

Ilowite and Ira Ilowite ("Ilowite Agency

).

Accordingly, Mr. Glasser served an answer

to the complaint and varous discovery demands. Also on July 13, 2000, Mr. Glasser

wrote to counsel for the Vasquezes and obtained an extension of time to answer the

complaint in exchange for a waiver of any jurisdictional defenses. Discovery proceeded

in the normal course.

On October 12 , 2000, a preliminar conference was held, before Judge Mason

Kings County, where it was ordered that the "

...

exam of plaintiff to be held withn 45

days following the conclusion of plaintiffs EBT. See, Plaintif' s Notice of Cross-

Skyline v Glasser

Motion, Exhibit 6.

Subsequently, in April 2001 , Mr. Glasser received a telefax from Skyline with a

certificate of insurance which Skyline evidently believed showed that it had insurance

coverage for the Vasquez claims. However, that certificate of insurance only evidenced

coverage that post-dated Mr. Vasquez s accident. Nonetheless, Mr. Glasser advised Riaz

to continue his efforts to locate evidence of insurance coverage on the date of the

accident, even though he anticipated that any notification to the insurer at such a late date

would be problematic.

On May 17 2001 , Ilowite provided confirmation to Skyline that a general liabilty

policy covering the March 2 2000 date of accident had been in effect with Nationwide.

At that time, Mr. Glasser immediately sent a letter to Ilowite, with the Vasquez summons

and complaint, demanding that Nationwide assume the defense and indemnification of

Skyline in the underlying action. It is undisputed that Mr. Glasser s letter to Ilowite, dated

May 17, 2001 was received by the Ilowite Agency. At that time, on May 17 2001 , Mr.

Glasser advised Skyline of its options, including the commencement of a declaratory

judgment action against Nationwide. Mr. Riaz agreed with the strategy and a complaint

was prepared and verified by Vasquez. On June 19, 2001 , Nationwide disclaimed

coverage. Nationwide subsequently cross-moved for summar judgment dismissing the

declaratory judgment complaint, which cross-motion was granted by Justice Bonnina

Kings County, on December 26, 2002.

Skyline v Glasser

Wilson Vasquez was deposed on May 11 2001. Thus, pursuant to Judge Mason

preliminar conference order, defendant had 45 days following the conclusion of

plaintiffs EBT - i.e., at the earliest, until June 26, 2001 - to have a physical examnation

of the plaintiff. In an order dated June 21 2001 Judge Mason, again, ordered that the

!ME of plaintiff wil be conducted before August 31 , 2001. " See, Plaintifs Notice of

Cross Motion, Exhibit 7. Thereafter, on October 11 2001 Judge Mason again issued an

Order directing "Defendant to schedule IME' s wlin 30 days , or deemed waived." See,

Plaintif' s Notice of Cross Motion, Exhibit 8.

In April 2003, the underlying action proceeded to tral before a jur in Kings

County. Apparently, Mr. Glasser called both Mr. Riaz and Sheila Melendez, an

employee of Skyline who apparently notified the Ilowite Agency of the accident, as

witnesses on behalf of Skyline during the liabilty phase of the tral. Trial Judge Leon

Ruchelsman issued a directed verdict in favor of Mr. Vasquez on the issue of liabilty,

finding that the facts surrounding his fall from the ladder brought the matter within the

ambit of New York State Labor Law ~ 240(1). Subsequently, on Friday April 4, 2003,

the second day of tral , after Justice Ruchelsman granted Mr. Vasquez s motion for a

directed verdict on the issue of liabilty, Mr. Glasser made an application to compel

Vasquez to submit to an IME the following Monday with the physician testifying in court

on Tuesday, April 7 2003, or Wednesday, April 8, 2003. Justice Ruschelsman

summarly denied Mr. Glasser s application. On the same day, April 4, 2003 (second

Skyline v Glasser

day of tral), Mr. Glasser also admitted, on the record that although he received medical

authorizations, he did not use them to obtain the hospital records. At the end of the

liabilty phase of the bifurcated tral, the Supreme Court granted the plaintiffs' motion

pursuant to CPLR ~4401 for judgment as a matter of law on the issue of liabilty against

Skyline.

During the damages phase of the tral, Mr. and Mrs. Vasquez testified, along with

plaintiffs witnesses Drs. Weiner and Eswar, who operated on Mr. Vasquez at different

points in time. After the plaintiffs rested, the cour then asked Mr. Glasser whether

defendants had any witnesses to which Mr. Glasser responded: "No, Judge. Defendant

rests as wel1." See, Plaintifs Notice of Cross Motion, Exhibit 9. On the issue of damages

the jury awarded Mr. Vasquez $4,290,000. Of that award, $4 000,000 was awarded to

Wilson Vasquez for past pain and suffering.

It is undisputed that no defense medical examnation of the Mr. Vasquez was ever

conducted.

Following the verdict, Skyline discharged Mr. Glasser and retained separate

counsel to appeal from the judgment in the underlying action and prosecute the instant

legal malpractice action against Mr. Glasser. With respect to the appeal, in Vasquez v.

Skyline, 8 AD3d 473(2d Dept. 2004), the Second Deparent affmned Judge

Ruchelsman s granting of judgment to Mr. Vasquez on the issue of liabilty against

Skyline, finding that Mr. Vasquez was engaged in the type of work contemplated by

Skyline v Glasser

Labor Law ~240(1) and that "there was no rational process by which the jur could have

found in favor of Skyline." The Second Deparment did, however, reduce the award for

past pain and suffering from $4 000,000 to $2 000,000, and, in accordance with the

Second Deparent' s decision, Mr. Vasquez stipulated to the entr of a reduced and

amended judgment.

On or about October 3, 2003, Skyline commenced the instant legal malpractice

action against Mr. Glasser and the Ilowite Agency on the basis that Mr. Glasser was

negligent during his representation of Skyline in the underlying action, and that but for

that alleged negligence, the outcome of the underlying action would have been different.

Plaintiff, Skyline, also claims that because of the alleged negligence of Mr.

Glasser, it was not insured in the underlying action and thus has a significant judgment

against it which would have otherwise been satisfied by its insurer. The malpractice

claim faults defendant counsel, for "failing to have (Vasquez) submit to an (IME) by at

least an ortopedic surgeon and a vocational rehabiltation specialist;

" "

in admittedly

failing to obtain (Vasquez s) hospital records prior to the tral so that he could prepare a

competent cross-examnation of plaintiff s surgeons as well as confer with an ortopedic

surgeon to testify in this case and assist Mr. Glasser with the cross-examnation of

Wilson s surgeons;" and, "in failing to notify Nationwide Insurance Company...about the

instant lawsuit so that Skyline would be provided defense and indemnfication under the

Skyline v Glasser

Nationwide policy. " See, Plaintif' s Notice of Cross-Motion, paragraphs, 7, 10, 11 and

15.

It is noted that Skyline s claims against defendants, Ira S. Ilowite and Ira S. Ilowite

Agency were discontinued pursuant to a stipulation of discontinuance executed by and

among all pares.

Defendant, Mr. Glasser, timely moves for summar judgment dismissing the

malpractice complaint in its entirety.

It should be noted at the outset, that the Plaintiff, Skyline, on AprilS, 2005, more

than 130 days after the filing of the Note of Issue, also cross-moved, pursuant to CPLR

~3212, for an order awarding it summar judgment on the first and second causes of

action.

It is well settled that a motion for summar judgment may be made by any pary to

an action after the joinder of issue. See, McKinneys CPLR *3212( a). The court may set

a date after which no such motion may be made, provided that the date is no earlier than

thrty days after the filing of the note of issue. See id. In the event that the court sets no

such date, a motion for summar judgment must be made no later than 120 days after the

filing of the note of issue. See ide Where a pary fails to make a motion for summar

judgment in a timely manner, the motion may only be entertained by the court if the

movant can show "good cause" for the delay in makng the motion (i.e. satisfactory

Skyline v Glasser

explanation for the untimeliness). See, Bril v. City of New York, 2 NY3d 648.

In this case, it is noted that on July 27, 2004, this Court signed a Certfication

Order, requiring the Note of Issue to be filed withn 90 days of that date. The

Certification Order also required Motions for Summar Judgment to be filed within 60

days of the filing of the Note of Issue. Plaintiff filed the Note of Issue in ths action on

November 16, 2004. Plaintiff filed this cross-motion for Summar Judgment no earlier

than AprilS, 2005. The cross-motion was filed, therefore, at least 130 days after the

Note of Issue was filed. Thus, it is clear that the plaintiff failed to make its cross-motion

for summar judgment in the time prescribed by ths Court in the Certfication Order.

The Court of Appeals in Bril supra, stated:

We conclude that "good cause" in CPLR g 3212(a) requires ashowing of good cause for the delay in makng the motion-asatisfactory explanation for the untimeliness-rather than simplypermtting meritorious , non-prejudicial filings, however tardy. Thatreading is supported by the language of the statute only the movantcan show good cause-as well as by the purpose of the amendment, toend the practice of eleventh-hour summar judgment motions. Noexcuse at all, or a perfnctory excuse, cannot be "good cause.

Moreover, plaintiff, Skyline, did not allege much less show good cause for the

delay. See, First Union Auto Fin., Inc. V Donat, AD3d -, 2005 NY App.Div.

LEXIS 2318. The ninety (90) day time frame to move for summar judgment is a

requirement and not an option. Miceli v. State Farm Mut. Auto. Ins. Co., 3 N. 3d 725;

Bril,supra.

Skyline v Glasser

Accordingly, the Court is without discretion and may not consider the merits of the

motion for summar judgment, as it was not made withn the required time period, and no

good cause for the delay has been shown,. See, Miceli, supra; Bril, supra; see also

Milano v George, AD3 -

Accordingly, plaintiff, Skyline s cross-motion for summar judgment is denied as

untimely. However, the plaintiffs cross-motion was considered in opposition to

defendant, Glasser s motion.

Defendant, Glasser, grounds the motion for summar judgment on two theories:

first, in light of the decision of the Appellate Division in Vasquez v. Skyline, 8 AD3d

473, affirmng the tral judge s decision to grant judgment to Vasquez on the issue of

liabilty pursuant to Labor Law ~240(1), absolutely nothing that Mr. Glasser did or did

not do would have resulted in a different result on the issue of liabilty; and second, the

documentar evidence reveals that Mr. Riaz initially advised Mr. Glasser that he had no

insurance coverage available in connection with the Vasquez claim, and that it was not

until May, 2001 , that Mr. Riaz advised Mr. Glasser that he, in fact, had coverage for the

Vasquez claim and that therefore, Skyline s claim, that because of the alleged negligence

of Mr. Glasser, it was not insured in the underlying action and thus has a significant

judgment against it which would have otherwise been satisfied by its insurer, is without

merit.

Skyline v Glasser

The basic. rules for pleading and prosecuting a prima facie case in legal

malpractice are well established. An action for legal malpractice requires proof of the

attorney s negligence, a showing that the negligence was the proximate cause of the

injury, and evidence of actual damages. See, Mendoza v. Schlossman, 87 AD2d 606;

Marshall v. Nacht, 172 AD2d 727; see, Murphy v Stein, 156 AD2d 546. In order to

survive dismissal, the complaint must show that but for counsel's alleged malpractice , the

Plaintiff would not have sustained some ascertainable damages. See Ashton v Scotman

260 AD2d 332; Saferstein v Klein, 250 AD2d 831. A failure to establish proximate

cause requires dismissal regardless of whether negligence is established. Notwithstanding

counsel' s purported negligence, the client must demonstrate his or her own likelihood of

success; absent such a showing, counsel' s conduct is not the proximate cause of the

injury. Nor may speculative damages or conclusory claims of damage be a basis for legal

malpractice. See McCoy v Feinman, 99 NY2d 295, 301-302. The "(r)emedy relies on

prima facie proof that (the client) would have succeeded." See, Price v. Herstic, 240 AD

2d 151, 152; see also, Davis v. Klein, 88 NY2d 1008; Ashton v. Scotman, 260 AD2d

332.

In this case, Defendant, Mr. Glasser, filed and served a summons and complaint on

behalf of Plaintiff in the underlying action, paricipated in depositions, and defended

Skyline at tral. Nonetheless, even assuming arguendo, that Defendant, Mr. Glasser, was

Skyline v Glasser

in fact, negligent in his representation of the Plaintiff, Skyline, by, inter alia, failing to

secure Vasquez s medical records prior to trial, in this legal malpractice case, Plaintiff,

Skyline, has failed to establish that but for counsel' s malpractice, it would not have

prevailed in the underlying labor law case. See, Davis v. Klein, supra; Ashton v.

Scotman supra.

Plaintiff cannot fault counsel, in light of the extremely significant injuries

sustaned by Vasquez, that but for counsel' s alleg d negligence, a lesser amount would

have been awarded by the jury or that the Appellate Division would have reduced the

verdict even more than it did. It is abundantly clear that this is not the standard by which

this Court is governed. See, Davis v. Klein, supra; Ashton v. Scotman, supra; Ippolito

v. McCormack, Damiani, Lowe & Mellon, 265 AD2d 303; Iannarone v. Gramer, 256

AD2d 443, 444; Andrews Beverage .Distributor, Inc. v. Stern, 215 AD2d 706; Logalbo

v. Plishkin, Rubano & Baum, 163 AD2d 511, 513. A prima facie case of legal

malpractice requires proof of the Defendant's negligence, that such negligence was the

proximate cause of the plaintiffs loss, and actual damages. See, Lauer v. Rapp, 190

AD2d 778, 779. In order to establish the elements of proximate cause and damages, a

plaintiff must show that but for the attorney s negligence, he or she would have prevailed

on the underlying claim. See, Raphael v. Clune, White & Nelson, 201 AD2d 549, 550.

It is well se tled that the Plaintiff, herein, in order to establish the element of proximate

Skyline v Glasser

cause and damages, must show that it would have been successful in the underlying

action had the attorney exercised due care. See, Campagnola v. Mulholland, Minion &

Roe, 76 NY2d 38, 42; Carmel v. Lunney, 70 NY2d 169, 173; Kerson Co. v. Shayne,

Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732; Rau v. Borenkoff

supra; see, Suydam v. O'Neil, 276 AD2d 549; Shopsin v. Siben & Sib en, 268 AD2d

578; McCoy v. Tepper, 261 AD2d 592; Ostriker v. Taylor, Atkins, & Ostrow, 258

AD2d 572; Lefkowitz v. Lurie, 253 AD2d 855; Raphael v. Clune, White & Nelson,

201 AD2d 549.

On a motion for summar judgment to dismiss the action (to recover damages for

legal malpractice), a defendant must proffer admssible evidence establishing that the

plaintiff is unable to prove at least one of the essential elements of his or her case. See,

Suydam v. O'Neil supra, at 550; Shopsin v. Siben & Siben, supra. Here, the

defendant, Mr. Glasser, has sustained his burden. See, Suydam v. O'Neil, supra;

Shopsin v. Siben & Sib en supra; McCoy v. Tepper supra.

Here, as the Supreme Court, Kings County, and the Appellate Division, Second

Deparment have conclusively held, absolutely nothing Mr. Glasser did or did not do

durng his representaiton of Skyline would have taken the case outside the scope of Labor

Law ~ 240(1). The optimal result desired by Skyline, a defense verdict, in the underlying

action, was an impossibilty given the factual scenaro presented, as confirmed by the

Skyline v Glasser

Second Deparment on Skyline s appeal from judgment. It is clear that Labor Law

g240(1) is a strict liabilty statute. Skyline, merely by virtue of its status as the owner of

the building where Vasquez was hurt, was bound by Labor Law ~240(1).

It is well settled that the initial burden in a motion for summar judgment is on the

movant to establish by means of admissible evidence his prima facie entitlement to

summar judgment as a matter of law. See, Jones v. Brooklyn Union Gas Corp., 133

AD2d 262; see also GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965, 967;

Zuckerman v. City of New York, 49 NY2d 557. Once the movant has made out a

prima facie case, as in the case at bar, the burden of going forward with proof, in

evidentiar form, establishing that the movant is not entitled to judgment shifts to the

pary opposing the motion. See, Zuckerman v. City of New York supra.

In opposition, Plaintiff submits the affidavit of Sarar Riaz, the President of

Skyline, together with the tral transcript of the underlying personal injury case.

Plaintiff s opposition is completely devoid of any expert affidavit setting fort the

standard of care under the circumstances faced by Mr. Glasser, and that Mr. Glasser

depared from that standard of care. It is well settled that the failure to submit an affidavit

from an expert in a legal malpractice action is a fatal deficiency. See Schadoff v. Russ,

278 AD2d 222; Greene v. Payne, Wood and Littlejohn, 197 AD2d 664. Furtermore

not only is Plaintiff s submission of his own affidavit rife with hearsay, it is ths Court'

Skyline v Glasser

determnation that in light of the absence of any expert affidavit, the Plaintiff s opposition

is predicated solely upon the conclusory and unsubstantiated allegations of malpractice

contained in the affidavit of Mr. Riaz. Thus, the corporate plaintiffs, in opposition, failed

to raise a trable issue of fact. See Crawford v. McBride, 303 AD2d 442; Pirro v.

Monsell, P.C., v. Freddolino, 204 AD2d 613.

Therefore, it is hereby

ORDERED, that the Defendants ' motion for summar judgment seeking

dismissal of the Plaintiff s complaint, is granted and the plaintiff s complaint is dismissed

in its entirety. It is furter

ORDERED, that the Plaintiffs cross-motion for summar judgment is denied in

its entirety.

This constitutes the Decision and Order of this Court.

This concludes this action

EN""

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Dated: May 10 2005