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DiTondo v. Meagher

April 22, 2009


The opinion of the court was delivered by: Ferris D. Lebous, 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.

This is a legal malpractice action. Plaintiffs Joseph N. DiTondo and Caralynn M. DiTondo allege that defendants Frederick J. Meagher, Jr. and Meagher & Meagher committed legal malpractice in an underlying federal case by failing to, among other things, research and advocate the legal proposition that the federal court sitting in diversity should have applied either California or New York's comparative negligence laws, rather than North Carolina's contributory negligence law.

Defendants Frederick J. Meagher, Jr. and Meagher & Meagher (hereinafter collectively "defendant") move for an order pursuant to CPLR § 3212 determining that the laws of North Carolina were properly applied in the underlying federal action, on the grounds it was the site of the underlying accident and has the strongest interest in the outcome of the underlying federal litigation.

Plaintiff*fn1 cross-moves for partial summary judgment for a finding that, had defendant brought the proper facts and law to the attention of the federal court, that the federal court would have been constrained to apply California or New York's comparative negligence rule to the underlying federal case.


For the limited purposes of this motion, the parties entered into a Joint Statement of Undisputed Facts (hereinafter "Joint Statement"). On October 27, 2000, plaintiff Joseph DiTondo delivered a truck load of bundled chain link fencing from one National Rent-A-Fence facility in Georgia to another National Rent-A-Fence facility in Raleigh, North Carolina. Upon arrival at the North Carolina facility, plaintiff, a co-worker trainee named Ronald R. Smith, and Jeffery L. Treadwell, an employee of National Rent-A-Fence, began to unload the fencing from the truck. According to the Joint Statement, "Mr Treadwell maneuvered a forklift owned by Rent-A-Fence to unload the bundles. Plaintiff alleges he and his co-worker trainee stood on opposite sides of the bundles and attempted to insert pieces of 2x4s as 'spacers' between bundles of fencing. The defendants in the underlying action disputed this allegation. While this maneuver was occurring, the bundle on the fork lift slipped and fell upon plaintiff injuring his right arm" (Joint Statement, ¶ 11).

The parties also stipulated that at the time of this accident plaintiff was a resident of New York. Further, the parties stipulated that Mr. Treadwell's employer, defendant National Rent-A-Fence, was a Nevada corporation with its principle place of business located in Mission Hills, California, while conducting business in several states including North Carolina (Joint Statement, ¶ 5 [emphasis added]).

The Joint Statement further outlines the loss allocation rules of the states involved here, namely that under the laws of North Carolina contributory negligence is an absolute bar to any recovery in a tort action, while under the laws of California and New York contributory negligence is not a bar to recovery but rather the amount of damages otherwise recoverable are diminished under the theory of comparative negligence (Joint Statement, ¶¶ 15-17).


A federal action, captioned Joseph N. DiTondo versus National Rent-A-Fence, National Business Group, Inc., and National Construction Rentals, was commenced in the United States District Court of the Northern District of New York on January 3, 2003 in which plaintiff sought damages for his personal injuries arising from the aforesaid accident.

This record contains two decisions issued by Chief Judge Scullin presiding over the federal action on which defendant Meagher acted as plaintiff's counsel. A review of both federal Decisions is warranted.

First, Chief Judge Scullin issued a Memorandum-Decision and Order dated June 3, 2004 (hereinafter sometimes "Federal Decision No.1") which addressed the federal defendants' motion for summary judgment seeking to dismiss the federal complaint. Initially, Chief Judge Scullin struck plaintiff's opposition papers submitted by Mr. Meagher because said submission failed to comply with local federal rules, thus leaving the defense motion unopposed. Nevertheless, Chief Judge Scullin noted that the court still had to ascertain whether the moving parties had sustained their burden of proof on the motion (Federal Decision #1, p 3).

The federal defendants' motion for summary judgment was based upon the affirmative defense that contributory negligence barred plaintiff's recovery under North Carolina law. Chief Judge Scullin reviewed the choice of law rules of New York as the forum state and determined that an interest analysis was warranted. Chief Judge Scullin's interest analysis recognized and reviewed the loss allocation laws under the principles enunciated in ...

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