The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Rachel Diamond sued her dentist in state court for malpractice after a botched tooth extraction and prevailed, winning a verdict for $260,000 for pain and suffering. In this diversity case, she accuses two successive lawyers who represented her in that matter of legal malpractice and breach of contract, seeking $3 million for lost earnings and medical expense damages she alleges she would have won but for defendants' negligent failure to seek such damages.
Defendants, attorney David J. Sokol and the firm of Dr. David J. Sokol, Attorneys at Law (collectively, "Sokol"), and attorney Marc R. Leffler and Leffler & Kates, LLP, (collectively, "Leffler"), now move for summary judgment. Plaintiff in effect cross-moves for summary judgment. For the reasons below, the motions of Sokol and Leffler are granted in part, but for the most part denied. Plaintiff's cross-motion is denied.
The facts described in this section are undisputed, unless otherwise noted.
This action arises out of defendants' representation of plaintiff in a New York state dental malpractice case against one Ira Gothelf. On or about March 15, 2000, plaintiff retained the firm with which defendant Leffler was then associated to represent her in that action. A complaint was filed in state court alleging that Gothelf's negligence in treating plaintiff for problems involving one of her teeth had caused her "personal injury, pain, suffering and other attendant damage" and also "humiliation, embarrassment, and an inability to pursue her normal, social activities and interests." (Complaint in Diamond v. Gothelf, No. 105914/00, Sup. Ct., County of New York (2000), Sokol Ex. B, at 2212-13.) It further charged that "plaintiff has and will continue to expend diverse sums of money for the care and treatment of said injuries." (Id. at 2213.)
Counsel for Gothelf's malpractice insurer served a demand for a verified bill of particulars,*fn1 requesting, among other information, the "total amounts claimed as special damages for . . . physician's/dentist's services[,] . . . loss of earnings[,] . . . [and] any other items of special damage." (Sokol Ex. C, at 1537.) On July 5, 2000, Leffler's firm responded with a verified bill of particulars ("the July 2000 bill"), sworn to and signed by Diamond. The July 2000 bill stated, among other information, that "[n]o claim is made for lost income," and that amounts for special damages would be claimed at a later date. (Sokol Ex. C, at 1580.) In a letter from Leffler's firm seeking plaintiff's verification, Diamond had been advised to review the enclosed draft of the July 2000 bill for accuracy and make "any changes and/or corrections." (Sokol Ex. C, at 1349.)
When deposed by Gothelf's counsel in December 2000, Diamond testified, in part, "It has been very difficult between the surgeries and being ill and all the pain to have a full-time job. I have been freelancing and . . . everybody that I work with knows that I have been sick and they are hesitant to want to hire me on a full-time basis because they are afraid I will be sick again." (Sokol Ex. D, at 1129.) An updated verified bill of particulars ("the May 2001 bill"), claiming $3314 for plaintiff's medical expenses, was served with supporting receipts and authorizations on May 31, 2001.*fn2 (Sokol Ex. G.) The May 2001 bill also stated, "In addition to those injuries previously claimed the plaintiff claims the following injuries: TMJ syndrome [and] inability to obtain health insurance." (Id. at 2565.) It does not mention loss of income.
At some point Leffler left plaintiff's first retained law firm to form his own firm, Leffler & Kates. Diamond signed a retainer with Leffler & Kates on August 31, 2001, and a notice of substitution of counsel was filed on October 9, 2001. In the interim, on September 26, 2001, Leffler's former firm filed a note of issue and certificate of readiness on plaintiff's behalf, alerting the court that the case was ready for trial.*fn3 On July 18, 2002, the state court adjourned trial for further discovery and ordered plaintiff to file another note of issue by April 21, 2003. (Sokol Ex. J.)
Another change of counsel took place in late 2002. In a letter dated October 21, 2002, Sokol and Leffler together informed Diamond that "[i]t has become necessary for Dr. Marc Leffler to leave the firm and to take a position elsewhere, where his management of your case will not be feasible. However, Dr. David Sokol is willing and able . . . to continue to prosecute your case to its conclusion."*fn4 (Sokol Ex. L.) Diamond responded to Sokol in November 2002 that "I have decided that I would like you [to] handle my case going forward." (Sokol Ex. M.)
Sokol arranged for economist Richard Ruth to produce a report on Diamond's economic losses. He asked Diamond to furnish various information for that purpose, and she submitted a five-page account of her employment difficulties and her expectations of future medical needs. In a September 13, 2003, letter to Sokol, Ruth indicated that he had reviewed Diamond's information and suggested consulting a vocational expert, with whose analysis "I can then provide past and future lost earning capacity in gross value and the future gross value of medical needs." (Sokol Ex. Q, at 1217.) Ruth's letter noted that "the Verified Bill of Particulars says that no claim is made for lost income." (Id.) In a November 10, 2003, letter to Sokol, Diamond wrote that she "agreed" that it was "not financially appropriate to hire a vocational expert at this time." (Sokol Ex. R.)
In the summer of 2004, the case was finally readied for trial. At some point during the litigation it was discovered that Gothelf had died. On July 8, 2004, the court issued various orders permitting the action to proceed against Gothelf's estate, including an order limiting recovery to $1 million, the value of Gothelf's liability insurance policy. (Sokol Exs. U,V.) Although Sokol had filed a notice of readiness for trial in January 2003, declaring that all pleadings and bills of particulars had been served and that discovery was complete (Sokol Ex. O), on July 15, 2004, he served the defendant estate with a copy of a report Ruth had produced, dated the same day, estimating Diamond's past and future earnings losses at either $411,860 using one method or $1,958,975 using another. The estimates apparently relied on Diamond's own hypotheses about her employment losses, which she had provided to Ruth on Sokol's request. (See Sokol Ex. X.)
The four-day dental malpractice trial began on August 3, 2004. On the first day, the judge granted defendant estate's motion in limine to exclude all evidence of loss of income, based on the objection that "the bill of particulars . . . states no claims made for such lost income, and we were just served with [Ruth's report] within the last week or ten days and that is when it was first raised." (Sokol Ex. AA, at 2401-02.) The court noted, "Under the circumstances, . . . notice [of the expert report] itself does not cure prejudice with respect to defendant's inability to properly conduct discovery on this issue historically." (Id. at 2403.)
At the end of the trial, the jury returned a plaintiff's verdict for $260,000, of which $100,000 was awarded for past pain and suffering and $160,00 for future pain and suffering. Both parties appealed the resulting judgment, but the appeals were abandoned a year after the trial for a settlement of $250,000.
On May 25, 2005, Diamond filed the instant action against Sokol and Leffler. Defendants move for summary judgment; plaintiff opposes and cross-moves for judgment in her favor.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deciding a summary judgment motion, the court must "resolve all ambiguities and draw all reasonable references in the light most favorable to the party opposing the motion." Cifarelli v. Vill. Of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). The court is not to make any credibility assessments or weigh the evidence at this stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
The nonmoving party, however, may not rely on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must make a "showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law applied to the case determines which facts are material for purposes of deciding a summary judgment motion. Anderson, 477 U.S. at 248. In this diversity action, New York's law of legal malpractice applies.*fn5 See, e.g., Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 n.2 (2d Cir. 2006) (deeming New York law applicable to claim of legal malpractice regardless of basis of federal jurisdiction, because the claim has its source in state law) (citation omitted). In New York, the plaintiff must prove each of the claim's essential elements: (1) that defendant was negligent; (2) that defendant's negligence was the proximate cause of the claimed injury; and (3) that plaintiff suffered "actual and ascertainable" damages. Rubens v. Mason, 387 F.2d 183, 189 (2d. Cir. 2004), citing McCoy v. Feinman, 99 N.Y.2d 295, 301-02 (2002); see also Achtman, 464 F.3d at 337-38 (stating New York malpractice elements).*fn6
To satisfy the first element, a plaintiff must show that defendant's conduct "fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession." Bernstein v. Oppenheim & Co, 554 N.Y.S.2d 487, 489 (1st Dep't 1990) (citations omitted). Mere error of judgment or "selection of one among several reasonable courses of action does not constitute malpractice." Rosner v. Paley, 65 N.Y.2d 736, 738 (1985); see also Bernstein, 554 N.Y.S.2d at 489 ("an attorney . . . is not liable . . . where the proper course is open to reasonable doubt"). Generally, an attorney may only be held liable for "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action." Bernstein, 554 N.Y.S.2d at 487. Reasonableness of a defendantattorney's conduct may be determined as a matter of law. Rosner, 65 N.Y.2d at 738; see also Bernstein, 554 N.Y.S.2d at 490 ("some of plaintiff's allegations concerning defendant's conduct of the litigation . . . are simply dissatisfaction with strategic choices, and thus . . . do not support a malpractice claim as a matter of law"). In other words, defendant is entitled to summary judgment dismissing the case, where the record reveals no way a reasonable factfinder could find defendant to have been negligent.
The second element, causation, is often described as the "but for" aspect of the claim, and requires a plaintiff opposing summary judgment to show evidence from which a reasonable factfinder could conclude that "it is more probable that the [complained of] event was caused by the defendant than that it was not." Rubens, 387 F.3d at 189 (citation omitted). Ultimately, the factfinder in a legal malpractice action must, in effect, put herself in the shoes of the reasonable factfinder in the underlying suit and determine if the result there would have been different absent the alleged malpractice. Id. at 190 (citation omitted). Specifically, New York law requires that the plaintiff be able to meet the "'case within the case' requirement, demonstrating that 'but for' the attorney's conduct the client would have prevailed in the underlying matter." Weil, Gotshal & Manges, LLP v. ...