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Forest City Enterprises3/7/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant Daly, Bamundo, Dalton & Schermerhorn, LLP (the "Daly firm"), and three individual lawyers employed by the firm at the relevant time, move for summary judgment dismissing the legal malpractice claim brought by its former client, Forest City Enterprises, Inc. ("Forest City"), and request imposition of sanctions for bringing a frivolous action. Plaintiff seeks sanctions for the frivolous demand.
It is well-established that to obtain summary judgment under CPLR 3212 (b), the movant must make a "tender of proof in admissible form" to "establish cause of action 'sufficiently to warrant the court as a matter of law in directing judgment' in [movant's] favor" (Friends of Animals v. Assoc. Fur Mfrs., 46 NY2d 1065, 1067 ). The party "opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Zuckerman v. City of New York, 49 NY2d 557, 562 ). Although this summary judgment motion has been brought prior to court-ordered discovery, significant material has been exchanged between the parties and plaintiff does not object that the motion is premature; the court will proceed accordingly.
Factual Record
Forest City, the owner of the Atlantic Center Shopping Center in Brooklyn (the "Mall"), was represented by the Daly firm in its defense of a negligent security action entitled Allah v. Atlantic Center Fort Green Associates, LP, et al., Index No. 14468/99 (the "Allah" action). The plaintiff in that action, El-Shabazz Allah, was a merchant who was robbed and stabbed in the back while opening his kiosk in the Mall. Mr. Allah received 26 stitches for the wound, resulting in a four-inch scar, and claimed continuing psychological injuries. After a three-day trial held on a Thursday, Friday, and Monday in June of 2003, the jury returned a verdict of $4,000,000.
Prior to trial, the presiding judge had recommended a settlement in the amount of $75,000, and plaintiff indicated he was willing to settle for that amount. After the verdict, and after denial of Forest City's motion for judgment notwithstanding the verdict, but while an as-yet unoppposed motion to reduce the verdict was on the motion calendar (opposition, exhibit 5, Van Zwaren letter; exhibit 10, Cawsey affidavit, para. 7), Forest City settled with Allah for $235,000, which was within the limits of its $250,000 self-insurance retention limit.
Claiming that Forest City itself was not informed of the opportunity to settle for $75,000, or possibly a lower amount of $40,000, prior to trial, and that the Daly firm's negligent representation deprived it of an opportunity to establish it had no liability, plaintiff seeks refund of about $10,000 paid in attorney's fees for pre-trial representation and the entire amount paid in settlement. It is noted that the defendant firm has not billed or been paid for its representation of plaintiff at the trial.
Unsustainable Malpractice Claims
At the outset, a number of factual allegations clearly will not support a malpractice cause of action, for they are unsustainable on the record. The claim of a failure to communicate that plaintiff would accept a $75,000 settlement offer is fully refuted, and such refutation is unopposed (complaint, paras. 19 and 20). Moreover, there is an absence of any assertion by any representative of the plaintiff or its claims adjuster that the $75,000 offer would have been accepted if communicated to the prope
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