Jones v. Lynch Schwab, PLLC et al

Filing 46

MEMORANDUM-DECISION and ORDER - That defendants' 23 Motion for Summary Judgment is GRANTED. That the complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/30/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PAMELA JONES,
Plaintiff,

No. 1:11-cv-616
(GLS/CFH)

v.
LYNCH SCHWAB, PLLC et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Stephen R. Krawtiz, LLC
271 Madison Avenue - Suite 200
New York, NY 10016
FOR THE DEFENDANTS:
Hiscock, Barclay Law Firm
800 State Street
Albany, NY 12207

STEPHEN R. KRAWITZ, ESQ.

DAVID B. CABANISS, ESQ.
RYAN P. KELEHER, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Pamela Jones commenced this action against defendants
Lynch Schwab, PLLC and Gerald S. Good, Esq., alleging legal
malpractice. (Compl. ¶¶ 20, 21, Dkt. No. 1.) Pending is defendants’

motion for summary judgment. (Dkt. No. 23.) Jones opposes the motion.
(Dkt. No. 37, Attach. 4.) For the reasons that follow, defendants’ motion is
granted.
II. Background
A.

Facts
Good and Lynch Schwab represented Jones in an underlying

personal injury action. (Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt.
No. 23, Attach 13.) Jones claimed that she sustained personal injuries on
February 18, 2006 when she slipped and fell in the ski lodge at Belleayre
Mountain Ski Center, which was owned, operated, and maintained by New
York State. (Id. ¶¶ 1, 3; Dkt. No. 23, Attach. 12 at 3.)
Good commenced the underlying lawsuit by filing a notice of claim
and notice of intention to file claim and served a bill of particulars on Jones’
behalf. (Defs.’ SMF ¶¶ 4, 5.) As alleged in the complaint—and not refuted
by defendants—Good did not obtain any previous incident reports or lay or
expert witness statements concerning the location of the fall and the
condition of the floor where plaintiff fell. (Compl. ¶¶ 20, 21.)
On September 15, 2009, a bench trial was conducted in the New
York Court of Claims. (Defs.’ SMF ¶ 7.) The State moved to dismiss at
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the close of Jones’ case. (Id. ¶ 10.) The Court of Claims granted the
State’s motion to dismiss because Jones “did not establish where she fell,
or that a dangerous condition existed there,” “there [was] no evidence that
the floor was wet or slippery,” and Jones “conceded that she really had no
idea how far she traveled, and thus, where she fell, after entering the main
room of the Lodge.” (Id. ¶¶ 11-14; Dkt. No. 23, Attach. 12 at 7.)
Jones then commenced this lawsuit against defendants, alleging
legal malpractice. (Compl.) The gravamen of the complaint is that Good
failed to investigate the conditions in the Belleayre lodge, failed to obtain
witness statements, failed to obtain previous incident reports, and failed to
obtain the services of a qualified expert to render an opinion concerning
the alleged condition which was the proximate cause of Jones’ injuries.
(Id. ¶¶ 20-21.)
B.

Procedural History1
Jones commenced this action on June 2, 2011. (Compl.) Following

joinder of issue, (Dkt. No. 4), discovery commenced, including the

1

Given the unique procedural background of this case, a more
detailed explanation of the procedural history, particularly with regard to
discovery, is necessary.
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depositions of Jones and Good, (Dkt. No. 23, Attach. 1 ¶¶ 17, 19; Dkt. No.
23, Attach. 5).
Defendants also served Jones with interrogatories and document
demands, (Dkt. No. 13, Attachs. 2, 3; Dkt. No. 16, Attachs. 3, 5), to which
Jones failed to respond, (Dkt. No. 18 at 3). The court then entered an
order compelling Jones to serve responses to the outstanding
interrogatories and document demands by March 2, 2012, (Dkt. No. 11),
but Jones again failed to serve any responses, (Dkt. No. 18 at 3). The
deadline for Jones to serve responses to the outstanding discovery
demands was extended a second time. (Id.) Although Jones served
responses by the deadline, the responses were not signed by Jones,
generally referred defendants to documents and information which Jones
asserted must have been acquired by defendants in the Court of Claims
action, and failed to identify witnesses. (Id.; Dkt. No. 23, Attachs. 2, 3, 4.)
Defendants then made a motion to preclude Jones from offering
evidence of any witness or expert that she claims should have been relied
upon in the underlying dispute. (Dkt. No. 13.) In a Memorandum-Decision
and Order dated July 10, 2012, Magistrate Judge David R. Homer granted
defendants’ request to preclude Jones from offering evidence or testimony
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at trial relating to the identities of lay and expert witnesses whom Jones
contends that defendants should have called to testify at the Court of
Claims action.2 (Dkt. No. 18 at 10-11.) Defendants then moved for
summary judgment, (Dkt. No. 23), which Jones opposed, (Dkt. No. 37). In
support of her opposition papers, Jones attached the affidavits of John
O’Hearn and David Salerno, who claim that the floor in the location where
Jones fell was wet and slippery. (Dkt. No. 37, Attach 2; Dkt. No. 37,
Attach. 3 at 1.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d, 489 F. App’x 500 (2d Cir.
2012).
IV. Discussion
Defendants argue that: (1) Jones cannot establish that defendants

2

The court has had no occasion to question Judge Homer’s order of
preclusion. Jones never filed a magistrate appeal or raised concerns with
the order in her opposition to defendants’ motion for summary judgment.
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departed from the standard of care because she never disclosed an
expert with respect to defendants’ alleged negligence, (Dkt. No. 23, Attach
14 at 3-4); and (2) even if Jones could establish that defendants departed
from the standard of care, she cannot establish the required “but for”
causation because she is precluded from offering evidence relating to
witnesses and experts and her own testimony establishes that she does
not know what caused her to fall, (id. at 4-6). The court addresses both of
these arguments in turn.
“To prevail on a claim for legal malpractice under New York law, a
plaintiff must establish: (1) attorney negligence; (2) which is the proximate
cause of a loss; and (3) actual damages.” Nordwind v. Rowland, 584 F.3d
420, 429 (2d Cir. 2009) (internal quotation marks, citation, and emphasis
omitted). “An attorney is negligent if . . . he failed to exercise the ordinary
reasonable skill and knowledge commonly possessed by a member of the
legal profession.” Rubens v. Mason, 387 F.3d 183, 189 (2d Cir. 2004)
(internal quotation marks and citation omitted). “However, an attorney is
not held to the rule of infallibility and is not liable for an honest mistake of
judgment where the proper course is open to reasonable doubt.”
Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 (1st Dep’t 1990)
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(citation omitted). Nor does “selection of one among several reasonable
courses of action . . . constitute malpractice.” Rosner v. Paley, 65 N.Y.2d
736, 738 (1985) (citations omitted). “To establish the elements of
proximate cause and damages, a plaintiff must show that but for the
defendant’s negligence, . . . she would have prevailed in the underlying
action or would not have sustained any damages.” Allianz Ins. Co. v.
Lerner, 416 F.3d 109, 118 (2d Cir. 2005) (internal quotation marks and
citation omitted). Thus, “the plaintiff must show that the attorney’s breach
of [his] professional duty caused the plaintiff’s actual damages.” McCoy v.
Feinman, 99 N.Y.2d 295, 301-02 (2002) (citations omitted).
A.

Departure from the Standard of Care
Defendants argue that deviation from the applicable standard of

care must be established by admissible expert evidence. (Dkt. No. 23,
Attach. 14 at 4.) Specifically, defendants contend that Jones’ failure to
disclose an expert regarding Good’s departure from the standard of care
now prevents her from demonstrating the existence of an issue of material
fact. (Id.) Defendants’ argument is without merit.
Jones’ failure to proffer expert testimony is not fatal to her claim.
While plaintiffs in professional malpractice actions “[g]enerally . . . proffer
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expert opinion evidence on the duty of care to meet their burden of proof
in opposition to a properly supported summary judgment motion,” the
requirement for expert evidence “may be dispensed with where ‘ordinary
experience of the fact finder provides sufficient basis for judging the
adequacy of the professional service.’” Estate of Nevelson v. Carro,
Spanbock, Kaster & Cuiffo, 259 A.D.2d 282, 283-84 (1st Dep’t 1999)
(quoting S&D Petroleum Co. v. Tamsett, 144 A.D.2d 849, 850 (3d Dep’t
1988)). Further, even assuming that expert testimony is required to
establish deviation from the standard of care, “on a motion for summary
judgment, the initial burden of coming forward with evidence establishing a
prima facie right to judgment is on the movants.” Id. at 284 (“In this case,
defendants offered only conclusory, self-serving statements with no expert
or other evidence which would tend to establish, prima facie, that they did
not depart from the requisite standard of care.”).
Here, while Jones has not provided expert opinions establishing that
defendants departed from the standard of care, defendants—the
movants—also have not offered expert or other evidence which

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establishes that they did not depart from the requisite standard of care.3
(Compl. ¶¶ 20-21; Dkt. No. 37, Attach. 1 at 3); see Feroleto v. O’Connor,
No. 1:08-CV-554, 2011 WL 1770267, at *4 (N.D.N.Y. May 6, 2011)
(granting summary judgment for defendant in a legal malpractice action
where the plaintiff failed to provide any expert evidence with regard to the
standard of care, while the defendant “marshaled a series of evidence,
including expert opinions, to demonstrate that his conduct was entirely
reasonable and consistent with his legal obligations”). Jones has alleged
that Good departed from the standard of care by failing, among other
things, to obtain witnesses, expert opinions, and previous incident reports.
(Compl. ¶¶ 20-21; Dkt. No. 37, Attach. 1 at 3.) Consequently, Jones may
nevertheless establish this element of her claim. Accordingly, defendants’
argument fails.
B.

Causation
Defendants next argue that summary judgment should be granted

because Jones cannot prove that but for defendants’ negligence, she

3

The court also notes that, experts aside, defendants themselves
have not explained how their failure to obtain witnesses, experts, and
previous incident reports in the underlying action was not a departure from
the standard of care.
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would have prevailed in the underlying action. (Dkt. No. 23, Attach. 14 at
4-6.) Defendants primarily rely on Jones’ deposition testimony and her
testimony in the Court of Claims, all of which establish that Jones does not
know what caused her to fall. (Id.) The court agrees with defendants that
Jones cannot prove the requisite but for causation.
In the underlying personal injury action, Jones was required to prove
that it was likely that her injuries were caused by the State’s negligence,
rather than some other cause. Bernstein v. City of N.Y., 69 N.Y.2d 1020,
1021-22 (1987). “If ‘there are several possible causes of injury, for one or
more of which defendant is not responsible, [the] plaintiff cannot recover
without proving the injury was sustained wholly or in part by a cause for
which the defendant was responsible.’” Id. at 1022 (quoting Digelormo v.
Weil, 260 N.Y. 192, 200 (1932)). Further, mere speculation as to the
cause of a fall, where there can be many causes, is fatal to a cause of
action. Smart v. Zambito, 85 A.D.3d 1721, 1721-22 (4th Dep’t 2011).
Here, defendants argue, and the court agrees, that Jones has not
proven that a hazardous condition caused her to fall. During her
deposition, when asked about what caused her to fall, Jones testified that
she “would imagine there was snow on the floor.” (Dkt. No. 23, Attach. 5
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at 78.) Jones also admitted that she could not conclusively say that snow
or water was on the floor in the area where she fell. (Id. at 78-79; 83.)
This testimony is consistent with the trial in the Court of Claims’, at the
conclusion of which it held that Jones “did not establish . . . that a
dangerous condition existed [where she fell]” and that Jones failed to
prove that “the floor was wet or slippery.” (Dkt. No. 23, Attach. 12 at 7.)
Moreover, Jones is precluded from offering or relying on either expert
testimony or lay witness testimony regarding the condition of the location
in which she fell. (Dkt. No. 18 at 10.) Therefore, the court cannot rely on
the affidavits of O’Hearn or Salerno, both of whom stated that the floor
was wet. (Dkt. No. 37, Attachs. 2, 3.)
Summary judgment is appropriate here because Jones cannot prove
what caused her to fall. See Revesz v. Carey, 86 A.D.3d 821, 823 (3d
Dep’t 2011) (summary judgment was properly granted where the
“plaintiff’s own inability to identify how she fell or what caused her to trip,”
and, therefore, any claim that her fall was caused by a dangerous
condition “would be based on ‘nothing more than surmise, conjecture and
speculation’” (citations omitted)); Barnes v. Di Benedetto, 294 A.D.2d 655,
656-57 (3d Dep’t 2002) (summary judgment should have been granted
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where “plaintiff’s own inability to identify the cause of her fall . . . [would
require] a jury . . . to improperly speculate”); Dapp v. Larson, 240 A.D.2d
918, 918-19 (3d Dep’t 1997). Because Jones cannot establish that a
dangerous condition caused her to fall, she cannot prove that but for
defendants’ negligence, she would have prevailed in the underlying
personal injury action. Accordingly, defendants’ motion for summary
judgment should be granted.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
23) is GRANTED; and it is further
ORDERED that the complaint (Dkt. No. 1) is DISMISSED; and it is
further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 30, 2013
Albany, New York
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