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Garnett v. Fox, Horan & Camerini, LLP

Sup Ct, New York County

April 5, 2013

ALMA GARNETT, As Liquidating Trustee Of Boylan International, Inc., Plaintiff,
FOX, HORAN & CAMERINI, LLP, Defendant. Index No. 114079/2008

Unpublished Opinion



Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:__


Notice of Motion and Affidavits Annexed........1

Notice of Cross-Motion and Affidavits Annexed ......................

Answering Affidavits..........................2

Replying Affidavits...................................3

Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant's representation of Boylan International, Inc. ("Boylan International") in an underlying rent non-payment action. Defendant now moves for an order granting it summary judgment and dismissing plaintiffs complaint. For the reasons set forth below, defendant's motion is granted.

The relevant facts are as follows. This action is brought by Alma Garnett who is acting as the liquidating trustee for Boylan International. Third Party defendant Nuala Boylan ("Ms. Boylan") is the sole shareholder and Chief Executive Officer of Boylan International. In the instant action, Boylan International seeks damages from defendant Fox Horan & Camerini ("Fox Horan") based on Fox Horan's alleged negligent representation of Boylan International in an underlying action brought in the commercial part of the housing court based on Boylan International's non-payment of rent and additional rent to its former landlord (the "Underlying Action").

On or about May 14, 1997, Boylan International entered into a lease (the "Lease") for office space located at 601 West 26th Street (the "Premises"). Pursuant to the Lease, Boylan International was obligated to pay as rent or additional rent: (1) monthly base rent; (2) .94% of the building's real estate taxes; and (3) electrical charges, which varied with usage. The Lease also provided that in the event that the owner prevailed in a non-payment proceeding under the Lease, Boyland International would be obligated to pay the owner's attorneys' fees for said proceeding.

Over the years, Boyland International failed to make payments required by the Lease and subsequent non-payment proceedings were initiated, including the Underlying Action herein at issue. The Underlying Action was brought on or about August 2003. On or about April 21, 2004, Boylan International retained Fox Horan to represent it in the Underlying Action pursuant to a written retainer (the "Retainer Agreement"). At that time, Boylan International was already in default and facing eviction. However, after retaining Fox Horan, a stipulation was entered into which, among other things, allowed Boylan International to Answer and assert an affirmative defense. During the course of the litigation, the landlord's attorney became ill and the case was marked off the calendar for approximately two years. During this period, Boylan International did not pay rent or additional rent and the arrears grew to approximately $675, 000.

In 2006, the landlord moved for partial summary judgment and was granted judgment in the amount of $73, 174 with leave to amend the petition to seek additional arrears. Thereafter, the landlord again moved for partial summary judgment and was awarded additional rent due and use and occupancy. The order set out a payment schedule and ordered Boylan International to pay the use and occupancy fees to the landlord on the fifth of each month. If Boylan International defaulted on the payments, it was ordered that a "warrant will issue and execute." In the second order, the Honorable Judge Jaffe ordered that the case be restored to the trial calendar to resolve all remaining issues, which included the outstanding real estate taxes, electricity payments and attorneys' fees. By August 17, 2006, Boylan International had not paid the amount required by the first order, and the parties entered into a stipulation which provided for a payment plan. The Stipulation also provided that the action be restored to the trial calendar for November 6, 2006. However, for some unknown reason the case was subsequently adjourned to January 10, 2007 and, thereafter, adjourned to January 30, 2007. The final date was marked as "FINAL - do not adjourn." Nonetheless, Fox Horan alleges that it requested another adjournment as Ms. Boylan had notified it that she was sick and may not be able to make the trial. That request was denied and trial began on January 31, 2007. Ms. Boylan appeared in court and announced that she was seriously ill, but the proceedings nonetheless went forward.

Directly prior to trial, the parties reached an agreement as to the past due electrical charges. Specifically, Boylan International agreed to pay $92, 000 in two equal installments with the first due on or before February 15, 2007. The trial then proceeded on the issues of: (1) the unpaid real estate taxes; and (2) the attorneys' fees that landlord was claiming pursuant to the terms of the lease for the previous nearly four years of ...

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