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Pickard v. Tarnow

Other Lower Courts

December 3, 2007

Chahee Pickard, Plaintiff,
v.
Herman Tarnow, Esq. and Tarnow and Juvelier, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Joan Madden, J.

Defendants move, pursuant to CPLR 3211 (a) (5) and (a) (8), for an order dismissing the complaint on the grounds that plaintiff Chahee Pickard (Pickard) failed to properly serve them and that the instant action is barred by the doctrine of collateral estoppel and/or res judicata.

Background

Defendant Tarnow and Juvelier, a law firm, is a New York limited liability partnership. Defendant Herman Tarnow (Tarnow) is an attorney and one of Tarnow and Juvelier's partners. On August 3, 2001, Pickard retained Tarnow to represent her in a matrimonial case against her soon-to-be ex-husband.

In this action, Pickard alleges that, during the course of Tarnow's representation, he committed multiple acts of legal malpractice. Specifically, the complaint alleges, inter alia, that (1) Tarnow failed to properly object to evidence and arguments regarding a Special Referee's decision that had been rejected by the court, (2) negligently allowed Pickard to lose the opportunity for her husband to pay her legal fees, (3) failed to offer expert testimony regarding the present value of her holdings in a marital asset, KP Holdings, (4) failed to offer evidence of tax implications affecting Pickard, (5) failed to offer sufficient proof to allow Pickard to obtain sufficient maintenance, (6) failed to establish Pickard's right to health insurance, (7) failed to make himself available to Pickard and berated and intimidated her, (8) was unprepared and neglectful and trials and hearings, (9) abandoned Pickard's case, (10) failed to procure a stipulation to enable Pickard to enforce an agreement by her husband to pay Pickard's rent and moving expenses, and (11) failed to pursue settlement negotiations.

Before she filed this action, Pickard sought to arbitrate a fee dispute with Tarnow who received $75,000 in fees from her former husband and sought an additional $96,640 from her. In her November 24, 2003 Request for Fee Arbitration, Pickard, who was pro se, maintained that Tarnow had committed various acts of malpractice, such that she should not have to pay him the legal fees. Specifically, she alleged, inter alia, that Tarnow abandoned her case, was abusive throughout his representation of her, refused to consult with her regarding documents submitted to the court, and failed to act or took action which caused her to lose money.

In a chronology submitted in the arbitrators, Pickard alleged substantially the same acts of malpractice that form the basis for this action, including Tarnow's failure to object to a Special Referee's decision which was rejected by the court, his failure to procure a stipulation to enable Pickard to enforce an agreement by her husband to pay Pickard's rent and moving expenses, his failure to protect her rights to health insurance, his negligent conduct during the trial, his failure to submit proof to support an appropriate award of maintenance, his failure to pursue settlement negotiations, his failure to quantify the value of Pickard's interest in KP Holdings, his neglect of Pickard's case and his eventual abandonment of it. A document submitted to the arbitrator entitled "Summary of Discounts" alleges, as does the complaint in this action, that Tarnow "abandoned her" and "berated and intimidated her."

By determination dated June 2, 2004, the arbitrators found that "based on a voluminous record," that Tarnow was entitled to $80,438.12 out of his original demand of $97,503.12.

Defendants argue that, as a threshold matter, the complaint should be dismissed because the court has no jurisdiction over them, due to Pickard's failure to properly serve them. Defendants further assert that, even if this court has jurisdiction over them, the action must nonetheless be dismissed, as it is barred by the doctrine of collateral estoppel and/or res judicata, which preclude a party from re-litigating in a subsequent action an issue clearly raised in a prior action and decided against that party.

Pickard counters that service upon defendants was proper, as established by the affidavits of service. Pickard further maintains that the doctrines of res judicata and collateral estoppel are not applicable as the issues of legal malpractice were not adjudicated in the fee arbitration. Pickard also argue that the arbitration was conducted pursuant to 22 NYCRR 137 (Part 137), which expressly states that it does not apply to substantial legal questions, including legal malpractice.

Discussion

As for the threshold issue regarding personal jurisdiction, it appears from the submitted affidavit of service that Tarnow was served in accordance with CPLR 308(2) since the summons and notice were delivered to his actual place of business to a receptionist, who qualifies as a person of suitable age and discretion, and that follow-up mailing was made to him ...


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