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Frenchman v. Queller

March 3, 2009


The opinion of the court was delivered by: Carol R. Edmead, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.


Plaintiff Cynthia Frenchman as Executrix of the Estate of Gerald Frenchman, deceased, and Cynthia Frenchman, individually (collectively "plaintiff") commenced this action against defendants, Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP ("Queller Fisher"), Barry A. Washor, Esq., ("Washor") and Stephen E. Jenkins, Esq. ("Jenkins") (collectively, "Queller Fisher" or the "Queller Fisher defendants") and Harvey F. Wachsman, Esq. ("Wachsman") and Harvey F. Wachsman, MD, JD, LLP (collectively, the "Wachsman Firm" or the "Wachsman Firm defendants") alleging legal malpractice.

The Wachsman Firm moves pursuant to CPLR 3211[a][1], [5] and [7], and Queller Fisher moves for summary judgment pursuant to CPLR § 3212 to dismiss plaintiff's complaint.*fn1


In August of 2002, plaintiff hired Queller Fisher to represent her in a medical malpractice and wrongful death action concerning the death of her husband, Gerald Frenchman. According to Queller Fisher, Wachsman, who was then of counsel to Queller Fisher, was assigned to handle plaintiff's case.

In early 2003, the underlying action for medical malpractice was commenced naming as defendants, Westchester Medical Center, Westchester County Health Care Corporation, Richard Moggio, M.D., Robert Klein, M.D., Ron Smith, M.D., "John" Sylvan, M.D. and David Wolf, M.D.

According to plaintiff, in August 2004, Wachsman informed plaintiff that he was severing his association with Queller Fisher, and would take the file in order to continue handling her case. By letter dated August 4, 2004, plaintiff sent Queller Fisher a letter stating that she . . . no longer want your firm to represent me in the above-named medical malpractice case. Please cease and desist from doing any further work on my case. You are hereby discharged as my attorneys.

I am also notifying you of my decision to have my case handled by Harvey F. Wachsman, M.D., J.D. Therefore, I am requesting that you turn over my entire file to Dr. Wachsman immediately and without delay.

Three months later, by letter dated November 9, 2004, Wachsman informed plaintiff that he "did not feel that this is a matter [he] can continue to pursue" because, inter alia, (1) it was "difficult to establish [the decedent's] longevity, given his recent and very significant cardiac problems" and (2) "the element of a substantial loss of income is indeed speculative." Wachsman additionally informed plaintiff that her rights were preserved with respect to her medical malpractice action, as a summons and complaint were served. By unsigned letter dated December 8, 2004 from Wachsman's office, plaintiff's "entire file" was returned to plaintiff.

By Notice of Substitution of Counsel, dated December 14, 2004, and executed by plaintiff on December 17, 2004, Queller Fisher was substituted by Kenneth H. Frenchman, Esq., plaintiff's son, as plaintiff's counsel. Defendant Washor executed the Notice of Substitution of Counsel on behalf of Queller Fisher. The Notice was filed with the Westchester Supreme Court on January 3, 2005.

On December 24, 2004, plaintiff signed a retainer agreement with Halperin & Halperin, P.C., to represent her in the medical malpractice action. The remainder of the work on the underlying action, including the ultimate four-week trial, was completed by Halperin & Halperin, P.C., commencing from the date this firm took over the file until January 2008. Plaintiff prevailed in her medical malpractice action, and was awarded a sum of $1,710,000.00.

On December 14, 2007, plaintiff commenced this action against defendants for legal malpractice.

Plaintiff's Complaint

Plaintiff alleges that defendants committed legal malpractice by failing to name all potentially liable parties in her underlying medical malpractice action. Although she ultimately prevailed in her action, plaintiff alleges that the award in the underlying action would have been significantly larger - including substantial economic damages that were not awarded by the jury because the proper parties - Drs. Howard Axelrod and Robert Belkin - who treated the decedent well before the treatment provided by the named defendants in the underlying action, were not named. The underlying complaint represented that counsel "was in possession of the relevant medical records and consulted with one or more knowledgeable physicians prior to commencing the foregoing action for medical malpractice and wrongful death." According to plaintiff, it was argued throughout the trial of the underlying action that when decedent first presented to the named defendants, he was already extremely ill and in heart failure. Plaintiff verily believes that the reason decedent was so sick was as a direct consequence of the medical malpractice of Drs. Axelrod and Belkin. Had Drs. Axelrod and Belkin been named as defendants within the relevant statute of limitations, the underlying cause of decedent's condition would have been before the Court and the jury in the underlying action, with the likelihood of an increase in damages awarded to plaintiff.

Plaintiff alleges that defendants' legal services were terminated on or about December 17, 2004. By the time she was able to retain Halperin & Halperin, the statute of limitations had run on the medical malpractice claims that she would have had against two additional physicians who treated her husband, and their respective practices. Plaintiff alleges that defendants acted negligently, breached their fiduciary duties to plaintiff, and breached their contract with plaintiff by virtue of the aforementioned failure to name all responsible parties in the medical malpractice action.

The Wachsman Firm's Motion to Dismiss

The Wachsman Firm asserts that its representation of plaintiff ceased in November of 2004, when it informed plaintiff that it would no longer be representing her in the medical malpractice action. Additionally, the conclusion of its representation of plaintiff was further confirmed by letter dated December 8, 2004, which accompanied plaintiff's file that was returned by the Wachsman Firm at that time.

Defendant points out that, under CPLR 214(6), legal malpractice actions must be commenced within three years of their accrual, a standard not satisfied by plaintiff, who served defendants on December 17, 2007, more than three years after representation by defendants ceased.

Queller Fisher's Motion for Summary Judgment

Defendant Queller Fisher argues that plaintiff's complaint was filed after the three-year statute of limitations applicable to legal malpractice claims expired, and thus, must be dismissed as untimely. Queller Fisher asserts that its representation of plaintiff ceased in August of 2004 following plaintiff's "cease and desist" discharging Queller Fisher as her attorneys Said letter was acknowledged by Queller Fisher in its letter to Wachsman dated August 25, 2004.

Queller Fisher points out that an action for legal malpractice accrues when the malpractice occurs, regardless of when it is discovered by the client, and that the statute of limitations is tolled while the attorney continues to represent the client on the matter that underlies the claim for malpractice. Since this continuous representation doctrine envisions a relationship "marked with trust and confidence," the statute of limitations begins to run on a cause of action for legal malpractice when the attorney-client relationship terminates. Here, the attorney-client relationship ceased when plaintiff's forwarded her "cease and desist" letter. Because the instant action was filed in December of 2007, more than three years after Queller Fisher's representation of plaintiff was terminated, the statute of limitations has run and plaintiff's action is untimely.

Queller Fisher also argues that plaintiff cannot establish her claim for legal malpractice. Although Queller Fisher denies that it was negligent, Queller Fisher points out that damages cannot be proven because plaintiff prevailed on her medical malpractice claim by obtaining an award of 1.7 million dollars. Further, because defendant Westchester Medical Center was found to be 60% at fault, it is responsible for the entire amount of the award. Given that a verdict was rendered in favor of the plaintiff and said verdict is collectible, plaintiff cannot prove that any actual damages were sustained, let alone that any negligence on the part of Queller Fisher was a proximate cause of a loss.

Queller Fisher also submits a limited opposition to the motion by the Wachsman Firm. Queller served an answer, which includes a cross-claim against the Wachsman Firm seeking an apportionment of liability. Thus, if the Court grants the motion of the Wachsman Firm and dismisses the complaint, Queller Fisher's cross-claim against Wachsman must then be treated as a third-party complaint as the defense of the statute of limitations clearly does not apply to the claim of Queller Fisher.

Plaintiff's Opposition

Plaintiff asserts that the date at which her representation by defendants ended and questions regarding the sustained damages are triable issues of fact that should be presented to a jury.

As to the Wachsman Firm, it cannot be stated with authority that its representation of plaintiff ended when they claim it did. Although the Wachsman Firm claims that its representation ended in November 2004, when a letter was sent to plaintiff stating that it would be making a motion to withdraw as counsel, an attorney cannot simply walk away from a case, but must obtain the Court's permission to do so. Indeed, the Wachsman Firm failed to make the motion to withdraw. Nor did the Wachsman Firm execute a Consent to Change Attorney in which they were discharged from representing the plaintiff. Inasmuch as the Wachsman Firm ...

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